JULIUS JZPPE, 
 
 THE 
 
 PORTER SPEECHES. 
 
 SPEECHES DELIVERED BY 
 
 THE HON. WILLIAM PORTER, 
 
 DURING THE YEARS 1839-1845 INCLUSIVE. 
 
 CAPE TOWN : 
 
 TRUSTEES ESTATE SAUL SOLOMON & Co. 
 1886.
 
 CAPE TOWN: 
 
 TRUSTEES SAUL SOLOMON AND CO., PRINTERS. 
 ST. GEORGE'S STREET.
 
 PREFACE, 
 
 In placing this volume before the public, it has been endeavoured, so far as is 
 possible, to arrange, according to date, the utterances of the late Hon. William 
 Porter during his first lustrum of office as Attorney-General of the Colony of the 
 Cape of Good Hope, extending from the year 1839 to 1845, and embodying some 
 of the most brilliant and interesting displays of oratorical talent for which the 
 lamented Mr. Porter was so justly famed. 
 
 It is intended that the speeches reproduced in this volume should silently, but 
 powerfully and eloquently, speak for themselves, as illustrative of the occasions on, 
 and the measures in support of, which they were delivered. It has been the studied 
 endeavour not to leave unrecorded any early public utterance from the time of 
 our distinguished fellow-colonist's arrival in South Africa up to the last date 
 mentioned, and not to hamper them with any laboured comments of his own, 
 feeling convinced that such a simple course would best meet the desires of many of 
 Mr. Porter's admirers, and that any such comments would best find a place in the 
 event of a review being published at a later period. Besides this, Mr. Porter's 
 personality is so fresh within the recollection of so many, that it is the ifsiss;r?:a 
 verba which are first of all required for perusal. Among the most conspicuous 
 speeches of Mr. Porter, to be found in this volume, are his manly assertion of 
 independence, and the independence of his office, when called upon, almost imme- 
 diately on admission, to support officially a measure at variance with his own views j 
 some of his earliest and most brilliant addresses at the meetings of the South 
 African Public Library, an institution in which he took an unvarying interest ; his 
 earnest speeches in favour of the erection of a light-house at Cape L'Agulhas ; on 
 Infant Schools, Immigration, Paper Currency, Taxation, Labour, Roads and Magis- 
 trates, the Judicial Establishment, the Administration of Justice, and on every other 
 measure of importance which came under the notice of the old Legislative Council 
 during the seven years which this volume covers. It is hoped, therefore, that it 
 will be found to be a valuable contribution to the legislative and general history ot 
 that period. 
 
 Cape Town, February, 1886. 
 
 2200351
 
 INDEX. 
 
 On the Bills of Exchange Bill and Petitions. . . . . . . . i 
 
 ii ., ,, . . . . . . . . iii 
 
 ,, New Marriage Law . . . . . . . . . . iv 
 
 Bills of Exchange Bill . . . . . . . . . . vii 
 
 ,, Hanoverians not being Aliens . . . . . . . . ix 
 
 ., South African Public Library .. .. .. .. xviii 
 
 ,, Lighthouse at Cape Agulhas . . . . . . . . xxv 
 
 Immigration .. .. .. .. .. .. xli 
 
 ,, Paper Currency .. .. .. .. .. .. xliv 
 
 .. .. .. .. .. xbi 
 
 His own Reception at Graham's Town . . ... . . Iv 
 
 ,, Taxation . . . . . . . . . . . . Ivi 
 
 ,, .. .. .. .. .. .. Ixvii 
 
 ., Law of Debtor and Creditor .. .. .. . . I 
 
 ,. On Infant Schools .. .. .. .. .. 21 
 
 ,, Labour. Roads and Magistrates .. .. .. .. 30 
 
 Public Buildings Taxes Exemption Bill .. .. .. 38 
 
 ., Immigration .. .. .. .. .. .. 51 
 
 ,, South African Public Library .. .. .. .. 72 
 
 Immigration . . . . . . . . . . . . 76 
 
 Non-Importation of Juvenile Criminals .. .. .. 104 
 
 ,. ,, .. .. .. ..107 
 
 ,, The Right of the Judges to advise the Crown on Constitutional Points 119 
 
 ., Concealment of Birth at Missionary Institutions .. .. 132 
 
 Hard Road across the Cape Flats .. .. .. .. 137 
 
 .. .. .. I 60 
 
 i) )j ) *73 
 
 Insolvent Law ... .. .. .. .. . . 176 
 
 ,, Municipal Assessment of Public Buildings .. .. .. 178 
 
 Deeds Attestation Bill .. .. .. .. .. 181 
 
 ., Insolvent Law .. .. .. .. .. .. 183 
 
 Judicial Circuit .. .. .. .. .. .. 185 
 
 ,, Paper Currency .. .. .. .. .. ..195 
 
 Judges' Exemption from Taxation .. .. .. .. 200
 
 INDEX. 
 
 PAGE. 
 
 On the Dutch Reformed Church Ordinance.. .. .. .. 203 
 
 ,, ,, .. .. .. 204 
 
 ., Insolvent Law .. .. .. .. .. ..217 
 
 218 
 
 Dutch Reformed Church Bill . . . . . . . . 296 
 
 ., General Municipal Ordinance . . . . . . . . 307 
 
 ,, Quitrent Enforcement Bill .. .. .. .. 313 
 
 ., Police Superannuation Bill .. .. .. .. 314 
 
 ,, Non-Obligation of Government to supply to Members of the 
 
 Legislature what they can themselves procure from published 
 
 official sources .. .. .. .. .. 315 
 
 Occasion of proposing Lady Napier's Health .. .. .. 325 
 
 ., Occasion of answering for the Ladies at the Banquet to Sir G. 
 
 Napier, and proposing the Indian Visitors . . . . 325 
 
 ,. Occasion of proposing Health of Mr. Justice Kekewich .. 329 
 
 ,, Deeds Registry .. .. .. .. .. .. 331 
 
 Dutch Reformed Church Grants in Aid .. .. .. 333 
 
 ,, Immigration .. .. . . .. .. .. 345 
 
 Agulhas Light . . . . . . . . . . 349 
 
 ., Privileges of the Council, the Judges .. .. .. 351 
 
 ., Registry of Deeds .. .. .. .. .. 368 
 
 Bill for fixing the Precedence of the Lieut. -Governor .. .. 371 
 
 Tacit Hypothecs of Government .. .. .. .. 372 
 
 ,. Stamp Bill .. .. .. .. .. .. 379 
 
 ,, Judicial Establishment in Committee .. .. .. 381 
 
 Poetry. At the South African Public Library .. .. 388 
 
 Natal b?ing formed a separate Province .. .. .. 413 
 
 ,, Frontier .. .. .. .. .. ..421 
 
 ,, Administration of Justice .. .. .. .. .. 436 
 
 Dutch Reformed Church .. .. .. .. .. 466 
 
 Wills Attestation Ordinance . . . . . . . . 467 
 
 ,, Judicial System .. .. .. .. .. .. 468 
 
 ,. Occasion of Banquet to Sir B. Durban, proposing, as Chairman, the 
 
 different Toasts .. .. .. . . .. 520 
 
 ., Expenses of a Mission to Aboriginal and Native Tribes .. .. 536
 
 1839. 
 
 ON THE BILLS OF EXCHANGE BILL. 
 
 [Legislative Council, Monday, October 21, 1839.] 
 
 The SECRETARY to GOVERNMENT was far from objecting to the 
 petition as coming from the chairman and committee of th-e 
 Commercial Exchange ; but he did object to their having two 
 strings to their bow. It appeared, indeed, as though, had there 
 been a thousand petitions, these gentlemen would have signed them 
 all. Petitions might as well have been brought in from half-a- 
 dozen insurance, steam, and banking companies, to most of which 
 these names would, he believed, be found attached. Besides he 
 could not admit the petition to represent the feelings of the whole, 
 not even of a majority of a commercial body, many of whom he 
 believed to be opposed to this Bill. A petition had been before 
 received from that body, purporting to be signed by the chairman, 
 to which, however, a majority of the members were found to be 
 opposed. He did consider it unseemly to have the signatures of 
 hon. members on petitions, and he would put it to their feelings of 
 propriety whether such a practice could be considered regular, 
 as pledging them to one side of a question before it was discussed. 
 It was also a well understood rule that mercantile firms could not 
 sign a petition as " Harrison, Watson & Co.," but only as indivi- 
 duals. 
 
 The ATTORNEY-GENERAL fully concurred with the hon. Secre- 
 tary in his last objection ; to which, however, the present petition 
 was not obnoxious, there being no names of firms attached to it. 
 If there were any such signatures to the other petition, it was cer-
 
 ON THE BILLS OF EXCHANGE BILL. 
 
 Satnly very injudicious in the parties who had so signed, as the sig- 
 nature could only be taken to be that of the individual whose name 
 appeared, and, therefore, was of less weight than if every member 
 -of the firm had signed. But, unless it could be supposed that the 
 -.signature was a forgery, it could not be taken as less than an indivi- 
 dual name, and, therefore, could not detract from the validity of the 
 petition. The same remark would also apply to the signatures of 
 the chairman and committee of the commercial body. The circum- 
 stance of the same individuals having signed two or ten petitions 
 on the same subject might be a very fair ground for argument 
 against the importance to be attached to those petitions, as, "not 
 being birds," these gentlemen have certainly no occasion to be in 
 two places at once ; but it could afford no ground for refusing 
 -to receive a petition which, coming as this did from men placed in 
 a comparatively distinguished situation, could not but carry with it 
 a certain degree of weight, notwithstanding their names having been 
 unnecessarily appended to another. With regard to the objection 
 which had been raised to the signatures of members of Council, he 
 begged to submit an opinion, which he trusted would at least be 
 found dispassionate. Sitting there, as it were, in their own little 
 senate, they could not surely lay down any better rules for their 
 guidance in such a matter than those which are in force in the two 
 great legislative bodies of the mother country. Now it is the daily 
 practice of members of both Houses of Parliament to sign Parlia- 
 mentary petitions ; and the more signatures of Peers can be got to 
 a petition to the Peers, or of Commons to the Commons, the more 
 respectable is a petition considered. He could state this from 
 experience, having been personally engaged in canvassing for such 
 .signatures. No Parliamentary speaker ever dreamt of objecting to 
 a petition on account of its being so signed ; on the contrary it is 
 often referred to triumphantly, as a proof of the goodness of the 
 object, that it has been supported by so many of their own body. 
 It is said : this Council is a deliberate body, and such a proceed- 
 ing tends to foreclose discussion. But when a member introduces 
 a measure, is it to be supposed, unless indeed to use a vulgar 
 phrase he is humbugging the Council, that he has not formed an
 
 ON THE SAME SUBJECT. Ill 
 
 opinion concerning it ? And can any confidence be placed in the 
 opinion of a man who will not authenticate his own sincerity by 
 placing his name to it? A petition involves nothing opposed to 
 the most perfect freedom of discussion, nor does it bind any mem- 
 ber signing it to hold the same views after the measure has 
 been fairly discussed. He merely declares, " I now think so and 
 so, and I humbly pray you to take the matter into consideration, 
 with respect to my present opinion." So far indeed from being 
 indecorous, it is rather a respectful practice ; and though in 
 signing the other these gentlemen must be admitted to have injured 
 their own petition, yet no further can they be said to have acted 
 injudiciously, while the petition itself contains nothing that can be 
 regarded as indiscreet or indecorous. 
 
 ON THE SAME SUBJECT. 
 
 [Legislative Council, Wednesday, October 23, 1839.] 
 
 The SECRETARY to GOVERNMENT presented a petition from certain 
 individuals, praying to be heard by counsel against the Bills of 
 Exchange Bill, which he moved should be acceded to. 
 
 Mr. EBDEN begged to second the motion. It was very far 
 from his intention to offer any opposition, as he would be glad to 
 hear, even at the eleventh hour, whatever could be urged against 
 the measure ; but he would suggest that the Attorney-General be 
 be first heard as to the law. 
 
 The ATTORNEY-GENERAL said he would rather hear the nature 
 of the argument intended to be entered upon. Of course, the 
 question as to whether there was a law or not would form a pro- 
 minent part of that argument. Whether there was a law or not, he 
 was prepared to argue that out of a state of doubt arose the neces- 
 sity of a declaratory law, but whatever might be the opinion of the 
 counsel employed, they should hear him out.
 
 IV THE NEW MARRIAGE LAW. 
 
 Mr. FBDEN said before proceeding to the order of the day, he 
 begged, with reference to what passed at the last meeting of Coun- 
 cil, on the subject of the petitions presented in favour of the Bill, 
 to notice a remark which fell from the hon. Secretary to Govern- 
 ment, respecting the chairman and committee of the Commercial 
 Exchange, and which without explanation might be construed as 
 casting a reflection where perhaps least intended. As the hon. 
 Secretary, on being applied to for an explanation, had expressed his 
 willingness to give that explanation in his place in Council, he now 
 begged to call upon him to do so. 
 
 The ATTORNEY-GENERAL said before his hon. friend the Secre- 
 tary to Government rose in reply, he must beg to say that he did 
 not understand him, on the occasion in question, to cast any reflec- 
 tion on the commercial body of this place. A remark had been 
 made respecting the form in which a petition had been signed, as 
 to which he (the Attorney-General), if he recollected right, differed 
 in opinion, but he certainly had not the most distant recollection 
 of any reflection being thrown upon the mercantile body by his hon 
 friend, who, he felt, would be the last person in the Colony to do so. 
 Mr. EBDEN had no doubt of that ; he had merely said that 
 without explanation the remark might be so construed. The 
 words which he alluded to were, he believed, to ihe following 
 effect : that a memorial had been, some time ago, received from 
 the chairman and committee of the Commercial Exchange, to 
 which he had reason to know that a majority of the committee 
 were opposed. 
 
 THE NEW MARRIAGE LAW. 
 
 CORRESPONDENCE. 
 
 Swellendam, November 5, 1839. 
 To THE EDITOR : 
 
 SIR, From the desire which I have ever felt to see all classes 
 of the community enjoy the privileges of lawful wedlock, the
 
 THE NEW MARRIAGE LAW. 
 
 provisions of the New Marriage Ordinance, in behalf of a certain 
 portion of the coloured class, afforded me the highest gratifi- 
 cation. 
 
 It appeared to me, however, doubtful whether, in the spirit of 
 the 35th and 36th articles of the said Ordinance, such free persons as 
 had been de facto married, but by the previously existing laws were 
 debarred from the privileges of regular marriage, could now have 
 the marriage legally solemnized, in the same manner as parties one 
 or both of whom had been in a state of slavery. 
 
 As the ordinance in question, moreover, required that in the pub- 
 lication of marriage banns the Christian name of the parties should be 
 published, it was to me matter of doubt whether this expression 
 required previous baptism in all persons applying for marriage, or 
 whether it was to be understood in its common acceptation, as merely 
 the name usually prefixed to the surname. 
 
 On these points I applied for explanation to the Government, and 
 received in reply the accompanying opinion of Her Majesty's 
 Attorney-General, with permission to make any use of it I might 
 deem proper. I therefore request you will publish it in an early 
 number of your paper, and remain, 
 
 Your obedient servant, 
 
 W. ROBERTSON. 
 
 Opinion of Her Majesty's Attorney-General. 
 
 With respect to the points on which Mr . Robe uson desires in forma- 
 tion, it appears to me First, that the 35th and 36th Sections of the 
 Marriage Order in Council, of the Jth September, 1838, only relate 
 to marriages de facto, in which one at least of the contracting parties 
 was at the time in a state of slavery. The framers of the order 
 probably conceived that, while the circumstances in which a slave 
 was placed might render him a deserving object of the benefit in- 
 tended, it would not be possible to place other persons on the same 
 footing, without confounding what, in all probability, was criminal 
 negligence or worse, with " the consequences of imperfect instruc- 
 tion." Upon this point, therefore, I am of opinion that marriages
 
 VI THE NEW M \RRIAGE LAW. 
 
 de facto can only be legalized by a new solemnity, so as to legitimise 
 the children born intermediately, in cases in which one at least of 
 the contracting parties had been in a state of slavery. 
 
 With respect to the secon'i point referred to by Mr. 
 Robertson, I mean the marriage of persons still heathens, it does 
 not appear to me that there is any legal impediment to a proceed- 
 ing of the kind. It appears to me that the direction to publish 
 the Christian name in marriage banns, contained in the Order in 
 Council, does not impose the necessity of baptism, but is merely 
 intended as matter of description, and to secure the best evidence 
 of identity. The modern Baptists have what may be fairly termed 
 " Christian names " before they are baptized ; and the primitive 
 Christians were baptized without taking any Christian name at all. 
 It is true, indeed, that both the classes I have mentioned are 
 Christians ; but still as both would be beyond doubt persons of 
 whom the banns of marriage might be published, the one class 
 proves that baptism is not essential, and the other class proves that 
 a Christian name may also be dispensed with. 
 
 I do not say, it will be observed, that a minister is bound to 
 publish the banns of marriage between persons still heathens, or to 
 marry individuals so situated. This is not the point submitted to 
 me. All I mean to say is, that if a minister have himself no 
 scruples, if he thinks that his sacred calling imposes upon him the 
 obligation rather to invite the heathen population to have a marriage 
 solemnity performed, than to refuse to perform it when requested 
 so to do, if he thinks that marriage is, in the language of Mr. 
 Robertson, " a grand step in the improvement of their morals, and 
 their fitness for baptism," then I give my opinion, as a lawyer, that 
 he may legally marry persons still heathens, although they have no 
 Christinn name, and have never been baptized. 
 
 WILLIAM PORTER. 
 
 25th October, 1839.
 
 BILLS OF EXCHANGE BILL. TOT 
 
 BILLS OF EXCHANGE BILL. 
 
 [Legislative Council, Thursday, October 24, 18394 
 
 The GOVERNOR said, though he agreed with those who defended 
 the Bill on the abstract principle, he thought it had been brougfcr 
 forward at a most improper moment. Why had it not been brought 
 forward when money was abundant and interest low ? He wonJ(5 
 ask the hon. mover why it had not been brought forward then ? 
 
 Mr. EBDEN said he had not thought of bringing the Bill forward 
 at the period alluded to, because there was no call for it. He- 
 brought it forward now, because the restriction was now felt to be. 
 oppressive and injurious to the public. 
 
 The GOVERNOR said it was his duty, as Governor, to allay afarn.. 
 and excitement, and to remove or keep back everything that had a 
 tendency to harrass or disturb the community. By the petitions 
 before the Council, and by what 'was known out of doors, t was 
 evident that the whole Colony viewed the Bill with apprehension^ 
 and distrust. It was thus a measure hostile to the spirit of his policy^ 
 and went to defeat his endeavours to quiet and reconcile the feelings- 
 of the different classes of which the commun ity was composed'. 
 On this ground, though it was plain that he would be left in a 
 minority, he should move that the Bill be rejected ; and noc on?y 
 would he give it his veto, when it was presented to him, but he- 
 would write home the strongest despatch that he could framc^, 
 to induce Her Majesty's Government to refuse their sanctiorv 
 to it. He would also call upon Her Majesty's Attorney-Genera}, a* 
 a member of his Executive Council, to oppose the BiH on the publie 
 grou-id he had mentioned. 
 
 The ATTORNEY-GENERAL said that, as he approved of the measure; 
 he must say, in answer to the call made upon him by His Excellency, 
 that he did not consider himself bound down by the office he heWi 
 from freely expressing his opinions upon it, nor precluded fronr 
 voting in its favour, as he had expressed his determination to do- 
 With the most profound veneration for the high office filled by Hi 5 
 Excellency, and with the most sincere regard towards, himself per-
 
 Vlll BILLS OF EXCHANGE BILL. 
 
 sonally, he must add that if he found the office he had the honour 
 to hold in this Colony precluded him from giving utterance to his 
 sentiments, or from voting and acting in that Council in accordance 
 with the oath he had taken when he entered it, then he would 
 Took out for the first vessel that was to leave Table Bay, and bid 
 adieu to the Colony. And should an occasion ever arise in which, 
 when he had the misfortune to differ from His Excellency's views, 
 it should appear to His Excellency, or to himself, that his opposition 
 would be inconsistent with the duties involved in his position here 
 then his course would be equally clear. With proper respect, but 
 at the same time with perfect firmness, he would place his commis- 
 sion in His Excellency's hands and withdraw. 
 
 Thy spirit, Independence ! let me share, 
 Lord of the lion-heart and eagle-eye ! 
 
 He would now add a few words on the motion for rejecting the 
 Bill. On the principle there seerned to be a general agreement. 
 But while some held that there was no law in existence here, and 
 that therefore the Bill was unnecessary, though inclined to agree 
 with them, he thought that as his learned friend Mr. Musgrave, and 
 the petitioners in whose behalf he had appeared, were of a different 
 opinion, it became the imperative duty of the Legislative Council^ 
 by some Act, declaratory or otherwise, to put an end to all doubt 
 and uncertainty on the subject. If this was evaded, some case would 
 be brought into the Supreme Court of Justice with a view of ob- 
 taining, by a decision, a declaration of the law. If there was excite- 
 ment, if the public were angrily divided on the subject, was it not 
 highly inexpedient to throw the burden of decision, that would be 
 regarded with a hostile and suspicious eye by one party at least, on 
 the Judges of the land? When such a necessity occurred, it was 
 always to be regretted ; and, consequently, when it was foreseen, it 
 was the peculiar duty of the Legislature to anticipate the evil, and by 
 its proper function to relieve the Judges from the pressure of a duty 
 that ought not to be forced upon them, in the discharge of which, 
 act as they might, they would inevitably incur ill-will and misconstruc- 
 tion. This being clearly foreseen, he would press upon His Excel- 
 lency and the Council the propriety of proceeding with this Bill. 
 
 The GOVERNOR said he had no intention of interfering with the
 
 BILLS OF EXCHANGE BILL. IX 
 
 freedom of debate, which the Attorney-General had in so manly and 
 .straightforward a manner vindicated for himself. But as the defen- 
 ders of the Bill had maintained that there was no law in this Colony 
 on the subject, and as he understood the Attorney-General to be 
 of that opinion, he had called upon him, as his legal adviser, to vote 
 against a Bill that proposed to repeal a law that did not exist ! What 
 could any sensible person out of doors say of such a proceeding ? 
 Would they not say : " What fools the Legislative Council must 
 be, and their President at the head of them, in passing Bills for 
 the repeal of laws which at the same time they believe to have no 
 being ! " He would never consent to have his name mixed up with 
 such proceedings. He would therefore press his amendment to the 
 vote, that his dissent might be recorded. 
 
 The ACTING AUDITOR-GENERAL seconded His Excellency's 
 amendment. 
 
 Mr. EBDEV, as the mover of the Bill, then rose and said, that 
 before putting to the vote His Excellency's amendment, it was, hs 
 believed, competent for him to reply. He had intended to have 
 offered a few observations on the statement of the learned counsel 
 who had been heard against the Bill, but, prepared as he was to show 
 that, his premises and deductions were alike erroneous, this was ren- 
 dered unnecessary from the course the proceedings had assumed. 
 But as the learned counsel, impressed with the weakness of the case 
 he had been called on to advocate, had been compelled to seek re- 
 fuge in an appeal to the feelings of His Excellency to put his 
 veto to the Bill, it only remained for him (Mr. Ebden) to express his 
 hope that His Excellency would pause before he adopted any such 
 advice in opposition to the expressed sense of the Council and the 
 decided opinion of his honourable and learned friend, Her Majesty's 
 Attorney-General ; and as he denied that there was anything pecu- 
 liar in the position and local circumstances of this Colony to 
 justify the fears and apprehensions which had been expressed* 
 he did hope that His Excellency and the Council would refer to the 
 authorities which had been quoted in favour of the measure, as well 
 as to the opinion of the Lord High Chancellor of England, as read 
 to the Council from a reported speech of his lordship, touching a
 
 BILLS OF EXCHANGE BILL. 
 
 recent enactment of the Imperial Parliament, on which this Bill 
 was founded. Taken by surprise by the observations which had 
 fallen from His Excellency, he could but view the course adopted 
 as tantamount to an infringement of freedom of debate, which had 
 been guaranteed to the Council ; at least, such were his impressions 
 (Here the honourable member was interrupted, and called to order 
 by His Excellency. His Excellency vehemently disclaimed any 
 intention of restraining debates, and said the honourable member 
 had no right to make such a remark.) Mr. Ebden on resuming, said 
 that he meant no reflection on His Excellency, and was understood 
 to say, that if wrong in the construction he had ventured to put on 
 the act of His Excellency, in having called upon the Attorney- 
 General as a member of the Executive to give him his vote in 
 support of his amendment, he was glad to be set right, sorry as he 
 should be to be thought wanting in deference and respect to His 
 Excellency, to whom his thanks were due for the candour he had 
 evinced on this as well as on former occasions. Looking, however, 
 to the course the proceedings had assumed, he should not trespass 
 on their indulgence beyond reverting to the abstract proposition 
 he had ventured to submit to His Excellency and the Council, at 
 the opening of the debates on this important question, which, in 
 substance, was : "That the usury laws originated in false notions of 
 policy and justice, were repugnant to reason, unsound in principle, 
 and injurious in practice." No problem in mathematics had ever 
 been more clearly demonstrated, no truth more perceptible to the 
 mind's eye had ever been made more manifest to the light of humin 
 reason, than this proposition had been, by the powerful, eloquent, 
 convincing, and unanswerable argument of his honourable and 
 learned friend the Attorney-General, who, with a perfect mastery 
 ot his subject, had left no part of it untouched, but had dispelled 
 all doubts, or demolished all objections, and allayed all fears and 
 apprehensions in respect to the measure, which might previously 
 nave been entertained by His Excellency, the Council, and the 
 public. Under these impressions he could not conclude without 
 congratulating the Council, the friends of free trade, and the Colony 
 at large, on the acquisition of so powerful an advocate of the 
 immutable principles of justice and good government. Humble
 
 BILLS OF EXCHANGE BILL. X* 
 
 individual as he was, he would yield to no man in zeal to 
 promote the welfare of this Colony, and his country by adoption. 
 Whatever might be the fate of the Bill, he could not abstain 
 from expressing the satisfaction he had derived on seeing the 
 principle for which he had contended so irresistibly illustrated- 
 Law or no law, the thanks of the Colony were due to his honourable 
 and learned friend for having placed this question in its proper light. 
 Inclined as he (Mr. Ebden) was to yield to the belief that there 
 exists no law in this Colony restricting the rate of interest, which 
 certainly the authorities produced by his honourable and learned friend 
 (Mr. Cloete) went to confirm, he felt that, whatever doubt might 
 still exist on this head, he should best perform his duty to the public 
 by leaving the Bill in the hands of his honourable and learned 
 friend the Attorney-General, who, he had reason to believe, was. 
 prepared with some declaratory enactment, which with any other 
 amendments he might have to offer would have his decided support. 
 
 After some desultory conversation, 
 
 The ATTORNEY-GENERAL said he had an amendment to propose, 
 in vchich he thought it was possible for all parties to agree. It 
 would require, however, a material alteration both in the preamble 
 and body of the Bill. It was to this effect : Thatwhereasdoubts had 
 arisen as to the existence of any law in this Colony by which the 
 rate of interest on loans and discounts is limited, &c., be it enacted*- 
 that from and after the passing of this Bill, the legal rate of interest, 
 &c., shall not exceed the rate of six per cent, per annum, an'J that 
 on the 1st of January, 1840, this Bill shall expire, unless previously 
 renewed," &c. An enactment of this nature would fulfil all the 
 purposes which the supporters of the Bill had in view, [t would 
 obviate the objections of those who opposed the present Bill on the 
 ground that there was no law to be repealed. It would fix the rate 
 of interest at six per cent, in the meantime, which would remove al^ 
 doubts as to the illegality of what are termed usurious transactions 
 on the part of unprincipled dealers in money. 
 
 This amendment was opposed on the ground of its entirely 
 altering the principle of the Bill. This the Attorney-General ad- 
 mitted was undoubtedly a valid technical objection. The amend- 
 ment was then withdrawn.
 
 311 BILLS OF EXCHANGE BILL. 
 
 Mr. EBDEN then rose and said, seeing the technical objection 
 which had been made to the Bill in point of form, and yielding to 
 the force of His Excellency's objection on this head, he was 
 prepared to have given his assent to the amendment of his honour- 
 able and learned friend the Attorney-General ; but as His Excel- 
 lency and the Council had come to the conclusion that there 
 were no usury laws in this Colony, a conclusion warranted by 
 the authorities quoted by his honourable and learned friend 
 (Mr. Cloete), to whose researches they were so much indebted, 
 and as, in the absence of any usury law, it was far from his 
 intention to make one, the object in view being attained, he 
 should now withdraw the Bill, any labour which he had bestowed 
 upon it having been amply repaid by the result, and he should take 
 no blame to himself for the excitement it had produced.
 
 184O. 
 
 THE HANOVERIANS. 
 
 Opinion of Her Majesty's Attorney-General. 
 
 I have considered this case with some attention, and regret that 
 I have not been able to form any very decided opinion with respect 
 to it. But I deem it right not to withhold the views, such as they 
 are, which have presented themselves upon the subject. 
 
 The recent proceedings connected with the right of Hanoverians 
 to be admitted to the freedom of the City of London, had not reached 
 their final termination when our last accounts were forwarded ; 
 and therefore those proceedings cannot be regarded as conclusive. 
 
 It does appear, however, that the Recorder, the Common Ser- 
 geant, Dr. Addams, and Mr. Craig some of them eminent as 
 lawyers, and all of them respectable are unanimously of opinion 
 that a Hanoverian, born in Hanover during the period in which 
 the Crown of that Kingdom was worn by the Sovereign of Eng- 
 land, is a natural born subject of the State last mentioned, and 
 entitled to all the rights, liberties, and privileges, belonging to that 
 character. The Court <>f Aldermen, we find, dissatisfied with the 
 practitioners already consuited, have directeJ a case to be laid be- 
 fore the Law Officers of the Crown and Sir William Follett. The 
 result has not yet transpired, but it is satisfactory to know that so 
 interesting a question is to receive so thorough an investigation. 
 
 Were the point in doubt now submitted for the first time no 
 similar one having ever been decided it might, I think, be 
 confidently anticipated that judgment would be given against the 
 right of Hanoverians born to be considered British subjects.. 
 Hanover is, and always has been a distinct kingdom ; it sometimes 
 belongs to the King of England, but never to the Crown of England; 
 it makes treaties with England like a foreign power ; it keeps a
 
 XIV THE HANOVERIANS. 
 
 minister in London like a foreign power ; it. may be at peace 
 when England is at war ; it may be at war when England is at 
 peace. Belonging merely to what Blackstone calls " the person of 
 the king," and being, as the same author observes, " entirely 
 unconnected with the laws of England," and " not communicating 
 with that nation in any respect whatever," the first impression the 
 mind of an enquirer might reasonably be, that the accidental 
 coincidence was far outweighed by the essential diversity, and that 
 the mere circumstance of the same natural man ruling by distinct titles 
 two otherwise distinct countries, could neverraiseareciprocal right in 
 the subjects of each to be classed amongst the subjects of the other t 
 
 But to this conclusion some weighty, I had almost said some 
 preponderating, reasons are opposed. Alienage is not favoured by 
 the liberality of the English law. The person of the sovereign is 
 so profoundly reverenced by the British constitution, that we may 
 well regard as fellow-subjects all who hold allegiance to the same 
 monarch. The king can grant letters of safe conduct to any 
 alien envoy. The king can grant letters of denization to any 
 alien friend. These are amongst his constitutional prerogatives^ 
 Is it then unreasonable to go a step farther, and allow that those 
 who stand to the king in a relation so intimate as that of subjects, 
 are, ipso facto, naturalized in every part of his dominions ? 
 
 Still, these are general considerations ; and general considerations 
 upon a question of this kind, are not worth much. It is of more 
 practical importance to observe that a question very like the present 
 was ruled by the Lord Chancellor, and twelve out of the fourteen 
 judges of England, in favour of a person claiming the disputed 
 right. I refer, of course, to the decision reported with extraordinary 
 pomp and circumstance by Lord Coke under the name of 
 " Calvin's Case," and which is termed by Ba<:on, who as Solicitor- 
 General argued it in the Exchequer Chamber with consummate 
 skill, the case of the Post Nati of Scotland." 
 
 The point here was whether a man born in Scotland after the 
 accession of James I. to the throne of England was, in consequence, 
 naturalized in the latter country ? and the Chancellor, Lord 
 Ellesmere, and all the judges except two, determined that he was. 
 
 1 persume that this memorable judgment is still law. It is true
 
 THE HANOVERIANS. XV 
 
 that much of the reasoning on which it was founded seems quib- 
 bling and unsatisfactory. It is true, moreover, that the case was 
 decided when a Scotchman was king, and when notions of regal 
 power and prerogative were entertained, much more exalted than 
 any which prevail at present. It is farther true, that a number of 
 lawyers even then dissented from the principle laid down. But he 
 would be " a bold man," as Lord Holt once said upon another 
 subject, who should set aside a solemn judgment, if in point, on 
 such grounds as have been now adverted to. 
 
 Is, then, Calvin's case in point ? Dr. Addams and Mr. Craig say 
 it is ; and in my own view of it, the only important difference 
 between Scotland then, and Hanover of late, was that the Crown 
 of Scotland, agreeing with the Crown of England, descended to 
 the heirs general; while the Crown of Hanover, differing from the 
 Crown of England, is restricted to the heirs male. Until all the 
 issue of the king had failed, there could, in contemplation of law 
 (I except, of course, the case of revolution), be no separation of the 
 Crowns of England and Scotland, but the operation of the Sa'iclaw 
 in Hanover creates a different canon of descent. This certainly 
 adds another to the circumstances in which the arms of Hanover 
 and Great Britain differ ; and, as Lord Bacon allows, whether the 
 privilege and benefit of naturalization bean accessory or dependency 
 upon that which is one and joint, or that which is several, hath 
 been, and must be, the depth of the question. 
 
 It is, indeed, to be remembered, that the possibility that the 
 Crowns of England and of Scotland might at some future period 
 become separated, was strongly urged in Calvin's case, against the 
 claim of the Post Nati ; and it seems to, have been disregarded by 
 virtue of the well known rule, that possibilities subsequent do not 
 affect existing rights. 1 am not sure that the rule was fairly 
 applicable there, and even if it were, I am not sure that it is equally 
 applicable here. 
 
 That the common opinion has always been that Hanoverians, as 
 such, are not British subjects, admits, 1 believe, of no dispute. 
 They have, in numerous instances, been naturalized by Act of 
 Parliament. When that process, or some other, has not been
 
 THE HANOVERIANS. 
 
 resorted to, they have always, as merchants, paid the alien's duties. 
 But a stronger proof of the opinion entertained has occurred to me 
 while considering this case. 
 
 The izth William III., c. 2. the Act of Settlement an Act 
 passed expressly against Hanover, contains the following provision : 
 "That after the said limitation shall take effect as aforesaid, no 
 person born out of the kingdom of England, Scotland, and Ireland, 
 or the dominions thereto belonging (although he be naturalized or 
 made a denizen), except such as are born of English parents, shall 
 be capable to be of the Council, or a member of either House of 
 Parliament, &c." 
 
 It will be obvious that the framers of this Act (and some great 
 lawyers had a hand in framing it) seem never to have thought that 
 a Hanoverian born in Hanover, even after the junction of the ruling 
 power in the same person, could be regarded as a British subject. 
 On the contrary, so far from placing Hanoverians upon a better 
 footing than aliens generally, this Act places aliens generally on a 
 worse footing than they stood on previously, in order to exclude 
 Hanoverians. It would be strange enough if those in order to 
 reach whom the Act of Settlement disqualifies, and to a certain ex- 
 tent all other aliens, should be found after all to be no aliens 
 themselves. 
 
 If Hanoverians were British subjects, then Buonaparte was 
 justified by the law of nations in seizing Hanover when England 
 declared war against him in 1803. But was not that proceeding 
 denounced at the time as a flagrant and indefensible aggression ? 
 
 Whether the Germanic Confederation, of which Hanover is a 
 part, is truly an association of independent nations, like the Holy 
 Alliance, or one composite government made up of many parts, 
 like the United States of America, I am not sufficiently acquainted 
 with its very complex machinery to determine. If it be the latter, 
 a number of cases may be put in which the principle that 
 Hanoverians are British subjects would lead to much embarrassment. 
 Indeed, as the Germanic Confederation, whatever may be its 
 precise character, is bound to protect all its members from aggres- 
 sion, a difficulty may be very readily supposed. Were England to
 
 THE HANOVERIANS. IVlf. 
 
 declare v. ar against another member of the Confederation, wh-aj Is 
 Hanover to do ? 1 presume if the natives be naturalized British sub- 
 jects, they would be guilty of high treason if they "levied war" against 
 the King of England ; and if they declined to do so, they would be.- 
 destroying the principles of their solemn compact and Confederation^ 
 
 To all this it may be replied, that upon a subject of this kind 
 anomalies are to be expected, that a separate leg : slation, for instance, 
 is necessarily pregnant with many such, yet that while Ireland (to> 
 take a well-known case) had a separate legislation, the natives of 
 Ireland were naturalized British subjects. All this is undeniable^ 
 But still there was always this grand distinction between Irelaad 
 and Hanover, that Ireland and England, though with distinct legis- 
 latures, had the same executive ; while Hanover and England had 
 both legislatures and executives distinct. The Government in. 
 Ireland was a. British Government, and its members were, I takeitr 
 impeachable by the British House of Lords. The case of StrafHird 1 
 proves this ; for although the Commons unwisely dropped ths.-iaa--- 
 peachment against him, and substituted an Act of attainder, no- one,..- 
 ever doubted that he was legally impeached. The circumstances.^ 
 of Hanover are completely different. 
 
 Upon the whole, I lean, reluctantly, to the idea that a Hane-;- 
 verian must be considered as an alien. I am, however, no friend, to < 
 the principle cf alien laws at all ; and if the ultimate opinion .of 
 the profession still settles down in favour of the franchise, I shall, 
 be not a little gratified. 
 
 I am further requested to say whether, in my opinion, supposing' 
 that a Hanoverian, bom in Hanover during the reign of George 
 III., were a British subject, the late separation of the sovereignty 
 could affect his rights. Upon this point I quite agree with Dr., 
 Addams and Mr, Craig, and think that a native of Hanover so cir- 
 cumstanced, who, at the t'me of the separation, adheres to England,, 
 can be in no degree affected by anything that has taken place. 
 Even allowing, for the sake of argument, that the separation of the. 
 sovereignty by descent made aliens of all Hanoverians adhering t 
 the present k ng, in the same manner as the separation of the 
 sovereignf.', by treaty, made aliens of Americans adhering to the. 
 
 t>
 
 AT THE SOUTH AFRICAN PUBLIC LIBRARY. 
 
 United States in 1783 (sec Doe, dem. Thomas v. Acklam, 2 B. 
 and <X 779), still Hanoverians who continue in adherence to the 
 British Government would be clearly within the principle of 
 Auchmuty v. Mulcaster (5 B. and C. 775), in which it was decided 
 that an American who continued in adherence to England after 
 the treaty of Paris in 1783, retained all his rights as a British subject. 
 
 W. PORTER. 
 
 8th February, 1840. 
 
 AT THE SOUTH AFRICAN PUBLIC LIBRARY. 
 
 \_April, 1840.] 
 
 The Honourable W. PORTER, having been called to the Chair, 
 opened the business, and addressed the meeting as follows : Gentle- 
 men, I wish, most unaffectedly, that you had selected some 
 Chairman of more experience than myself. This is the first 
 meeting of the subscribers to the South African Public Library at 
 which 1 have had an opportunity of being present. 1 am ignorant 
 ef the course of proceeding usual at your assemblies. I am 
 ignorant of the details of the business which you are called together 
 to transact. I am ignorant of the peculiar topics which the exist- 
 ing state of your institution might render most appropriate. Under 
 these circumstances I am, perhaps, affording proof of the inex- 
 perience of which I speak, when I thus delay the reading of the 
 Report, and the passing of the necessary Resolutions, by any 
 remarks of mine. It may be, indeed, that I ought firmly to have 
 declined the honour of occupying the place which I now fill. I 
 can, however, say with great sincerity, that it was only because I 
 was deeply impressed with the excellence of this establishment ; 
 because I was anxious very anxious to serve it if I could ; and 
 because I was informed that I might serve it by taking the chair 
 upon this occasion (though how it was to be benefited by my 
 doing so I could not, and I cannot, for the life of me, imagine),
 
 AT THE SOUTH AFRICAN PUBLIC LIBRARY. XIX 
 
 that I reluctantly consented to comply with the wish of the 
 committee, and attempt the performance of duties which more than 
 one whom I now see present could discharge much better. 
 
 Still, gentlemen, there is a bright side to every thing. The 
 very circumstances which tend in this case to make me a bad 
 advocate, tend to make me a good witness. If I had had any 
 personal concern in the management of this Library ; if I were 
 among the number of those who fostered its infancy, and who have 
 assisted its mature years ; if I had witnessed, as others have, the 
 laying of its foundation stone, or helped, like them, to rear the 
 noble superstructure then t might be supposed to view with partial 
 eyes what was, in some degree, the work of my own hands, and 
 thus entail some suspicion upon my questionable praise. From all 
 such imputations I stand free. My testimony is perfectly disin- 
 terested. In speaking of your institution, I have no temptation to 
 tell anything respecting it save the truth. I may hope, therefore, 
 that my evidence will be looked upon as credible. 
 
 Gentlemen, I remember having had a conversation, a few days 
 after my arrival here, with a gentleman whom I chanced to meet 
 at dinner, upon the subject of this Colony in general. " There are 
 some things here," said he, " of which you may have formed too 
 high an opinion, and which may therefore disappoint you. The 
 climate may disappoint you, when you come to brave a stiff south- 
 easter. The aspect of the country may disappoint you, when you 
 get amidst our interminably sandy flats. But depend upon it there 
 is at least one thing at the Cape which will not disappoint you 
 the Public Library." And most assuredly he was right. When 
 I first entered this room, and beheld the mighty mass of knowledge 
 which is here accumulated, the shelves crowded, too crowded, 
 indeed, if it could be helped, with the choicest works of every age 
 and nation, I felt as if I stood within the precincts of a Library 
 collected in some great metropolis of Europe, rather than in one 
 which had grown up in a few years in the little capital of a thinly 
 populated Colony at the farthest part of Africa ! 
 
 Gentlemen, the utility of such an institution, at the present day, 
 and to the present audience, needs no formal proof. To enter 
 
 b 2
 
 XX AT THE SOUTH AFRICAN PUBLIC LIBRARY. 
 
 upon such proof would be as absurd as to argue the evidences at a 
 missionary meeting. Upon this subject we are, all of us, already 
 in one heart and one mind. If there ever were a time when the 
 spread of information was feared, and hated because it was 
 feared, when the debasing doctrine that ignorance is bliss 
 was accounted sound and orthodox, that time, thank God } 
 is past and gone. About the most expedient modes of accom- 
 plishing the great ends in view, men may differ, but I 
 rejoice to know that there is not a class in society, that there 
 is not a party in politics, (hat there is not a sect in religion, 
 which broadly denies the propriety, nay, which does not loudly 
 inculcate the duty, of dispelling the mists that cloud the eyes of 
 ignorance. This is a cheering and animating fact, full of good 
 omen and high hope. Thus do the paradoxes of one age become 
 the truisms of the next, and thus does light, as is its nature, still 
 " shine more and more unto the perfect day !" 
 
 Gentlemen, I should be the last man alive to touch, in such 
 a place as this, upon any disputed topic. But I have no fear 
 that T tread upon debateable ground, that I get within the 
 possibility of controversy, that I utter a sentiment which any man 
 in this company or in this Colony will, for one moment, call in 
 question, when I say that I am, with heart and soul, and mind 
 and strength, for the instruction of the people of the whole 
 people of the people of every age and sex, and class and 
 colour. I am aware that the connection between morality and 
 education, though a natural is not a necessary one ; I am aware 
 that, though " knowledge is power," it may become a power for 
 evil, as well as a power for good. I am aware that the corrup- 
 tion of the best things is sometimes the generation of the worse. 
 But none of these considerations move me. Bad men have 
 made religion the slave of their bad passions, yet for one pang 
 that religion has inflicted, she has assuaged ten thousand. Bad 
 men have made education the slave of their bad passions, but for 
 one crime which education has prompted or facilitated, she has 
 stifled ten thousand in the birth. With a fitting education much 
 may be done fora community; without it, you can do but little.
 
 AT THE SOUTH AFRICAN PUBLIC LIBRARY. 
 
 While I admit the painful but imperative necessity, in the absence 
 of a better check, of deterring from evil by the punishments of 
 the law : while I admit that those punishments are possibly the 
 more imperative, just because there is no better check ; I have, 
 at the same time, no hesitation in declaring my conviction that 
 after all, and in the long run, it is by the printer, and not by the 
 prosecutor, it is by the schoolmaster, not by the hangman, that a 
 moral population must be made. Gentlemen, I know that this 
 Library is not, directly, concerned with the instruction of the 
 lower orders ; but, indirectly, it cannot be without its influence. 
 Everything which raises literature in the estimation of the higher 
 classes in the Colony, everything which spreads amongst those 
 in inferior station a conviction of the advantages of intellec- 
 tual culture, has an ultimate tendency to benefit the humblest of 
 our fellows, for knowledge naturally gravitates. But, leaving 
 this important topic, need I glance at the benefits, the inestimable 
 benefits, which this Library affords to those more immediately 
 within its reach ? What would your town and neighbourhood 
 become without it ? Were some barbarian enemy the heavenly 
 Emperor, if you choose to treat this Library as the Caliph 
 Omar did the famous one of old, at the other extremity ot 
 Africa, what would be the result ? You are ten thousand miles, 
 or thereabouts, from the great literary mart of Europe. This 
 being the case, individuals (I am speaking generally, exceptions 
 would of course be found) could neither know what books to 
 get, nor afford the expense of an adequate collection. The 
 public mind would stagnate. Every elevating taste would be 
 extinguished. We should become engrossed by sordid pursuits 
 and vulgar cares. I cannot, in truth, imagine a greater misfor- 
 tune for this Colony, than the occurrence of any event which 
 should shut the doors of a repository which, by being the Library 
 of the Public, is in fact the Library of every man in the com- 
 munity. It is hard to realise an adequate notion of the state to 
 which we should be reduced by such a deprivation. According 
 to the admirable arrangements of this Institution, the circulation 
 of books appears to be a thing as regular, as certain, and as little
 
 AT THE SOUTH AFRICAN PUBLIC LIBRARY. 
 
 liable to be disturbed, as the circulation of the bl cod. But if, by 
 an efforc of imagination, we could transport ourselves from the pre- 
 sent to the past ; to the time when the deluge of barbarism by 
 which Europe was inundated had only in some degree subsided, and 
 the dry land but partially appeared ; to the time when the public 
 mind began first to rouse itself like a strong ma n after sleep ; to 
 the time when Italy, the last to lose the ight of the older civiliza- 
 tion, the first to hail the dawning of another day, bestirred itself to 
 search for and dig up the fossil remains of ancient intellect out 
 of the beds in which they had been buried ; to the time when a 
 single volume was as valuable as a great estate ; when a manuscript 
 was transferred with more than the ordinary formalities of law, and 
 when the works of a favourite author might be made the subject 
 of solemn treaties; if, I say, we could transport ourselves, in thought, 
 to such a time as this, and compare the situation even of the 
 great and the learned then, with that in which the humblest indi- 
 vidual in this distant and then unthought of territory now are 
 placed, we should know better how to estimate the advan- 
 tages which, through this great emporium of literature, we, all of 
 us, enjoy. To those by whose exertions this Institution has been 
 rendered what it is, the Cape Public owes a debt of ceaseless 
 gratitude. The work which their hands found to do, they did with 
 all their might, and, verily, they did it well. '' The King of 
 Brodignag," says Swift (I quote from memory and not, perhaps, 
 correctly), '' the King of Erodignaggave it as his opinion, that the 
 man who caused 5wo blades of grass to grow upon a spot of ground 
 where only one grew before, was of greater benefit to his country 
 than the whole race of politicians put together." Gentlemen, 
 this, surely, is not true, it is only one of those well put fallacies 
 that strike like truth. But if the saying of the great satirist have 
 even a semblance of correctness when applied to him whose 
 efforts are productive only of the grass " which to-day is, and 
 to-morrow is cast into the oven," how much more properly may 
 it be applied to him who causes two ideas to grow in the mind 
 where but one grew before, who labours to make the barren spirit 
 fertile, and sows the immortal seeds of knowledge and of virtue ?
 
 AT THE SOUTH AFRICAN PUBLIC LIBRARY. 
 
 Gentlemen, it is sometimes said by narrow-minded and short- 
 sighted men, and it is oftener thought, perhaps, than said, 
 " this hubbub about books is nonsense. Who is sixpence the 
 richer for all that have been written and read since time began ?" 
 Why, gentlemen, even here wisdom is justified of her children, for 
 who knows not that the triumphs of speculative science are ever 
 followed by the perfection of the useful arts ? Without astronomy, 
 what were navigation ? Without chemistry, where were manu- 
 facture r To whom is England mainly indebted for her great- 
 ness at the present moment ? To her statesmen ? No. To 
 her warriors ? No. She is indebted for it to two men buried 
 for years in the study of science and philosophy, to the Inventor 
 of the Steam Engine and the Inventor of the Power Loom, 
 to JAMES WATT and RICHARD ARKWRIGHT. Even from the misty 
 regions of mental philosophy, substantial gain has been derived. 
 It is a fact which deserves to be remembered, it might serve to 
 rescue such studies from the neglect into which they have too 
 generally fallen, that the science of Political Economy has been 
 the work of metaphysicians. Locke was the first in Europe 
 who wrote rationally about money ; and the " Wealth c f Na- 
 tions," a work which has influenced the whole comn.crcial 
 legislation of the age, was not composed by Adam Smith unti^ 
 his intellect had been braced and strengthened by a long con- 
 tinued course of metaphysical gymnastics. But this is stooping 
 miserably. To measure knowledge by its power of money- 
 making were to estimate it by a most unworthy standard. As 
 the Saviour's value was not the thirty pieces of silver for which 
 Judas sold him, so the value of literature and science is not the 
 money for which they may be bartered. Is there any educated 
 man, or half educated man, or any man who has ever read 
 and relished one great work, who does not feel that there is 
 something in literature which wealth could never purchase, and 
 for which no price could furnish an equivalent ? Man's chiefest 
 glory, what is that ? Doubtless the cultivation of the moral and 
 religious principle, for the neglect of which no merely intel- 
 lectual acquirements can ever compensate. But next in rank to
 
 AT THE SOUTH AFRICAN PUBLIC LIBRARY. 
 
 this, confessedly the sublimest of man's duties and delights, 
 comes the cultivation of the mental powers. Both well may 
 Sourish in the same soil, and that man's mind is a perfect paradise 
 in which learning and piety rise side by side, even as of old 
 the tree of knowledge stood together with the tree of life, 
 twin growths of Eden. When I call to recollection what litera- 
 ture has done for mankind through many an age, the heroism 
 that it has inspired, the enthusiasm that it has kindled, the 
 cares that it has lightened, the sorrows that it has condoled, I 
 bail and bless its beneficent career. Poverty cannot be intole- 
 rable to him who possesses, and who knows how to prize, that 
 great treasure, a good book. The pains of a weakly body or a 
 wounded spirit may be alike alleviated by the soothing influence 
 of literature. The wildest passions hear her still small voice and 
 are at rest. 
 
 Gentlemen, to some, perhaps, these sentiments may seem ex- 
 aggera'ed, if not absurd. But I have little fear that they will 
 so appear to you. How, as I stand, surrounded by those im- 
 mortal vvorks which are the noblest monuments of noble minds, I 
 may be allowed 1o testify some portion of the love and reverence 
 which I feel for them, and for the elevating pursuits in which their 
 gathers lived and died. That yon are animated by the same sen- 
 timents I can entertain no doubt. I judge you by your fruits. 
 The Institution within whose walls I speak could only have been 
 produced by such principles carried out into a course of action 
 worthy of them. Those who have raised a temple to literature 
 such as this must have faith in the Divinity to whom it is devoted. 
 
 Gentlemen, I have detained you too long, I hasten now to a 
 -conclusion. I rejoice to learn from my friend Mr. Jardine, that 
 your affairs are, at present, prosperous. Be instant, I beseech you, 
 in season and out of season, in your efforts to continue that pros- 
 perity, or rather to augment it. Preserve unabated your interest 
 in this institution. Believe me you should do so. It is a credit to 
 you. It is a credit to your Colony. Take an honest pride in point- 
 ing it out to strangers as a specimen of what the Cape can do, 
 and in making it still better worth being pointed out. Let it be
 
 LIGHTHOUSE AT CAPE L AGULHAS. XXV 
 
 fixed upon a basis as immovable as the mountain that towers above 
 your town. Labour to make it as enduring as the deathless thoughts 
 of which it is a vast depository. Work a work not for a day, but 
 for all time. Man's merely material labours perish, not so the 
 purer emanations of his mind. The v/ild beasts of the desert cry 
 in the desolate houses, and dragons in the pleasant palaces of many 
 a Babylon, while the "thoughts that breathe and words that burn" ot 
 the godlike intellect have imparted of their immortality to the 
 very leaves of the forest. 
 
 LIGHTHOUSE AT CAPE L'AGULHAS. 
 
 [July \%tb, 1840.] 
 
 On Saturday, the nth July, 1840, a public meeting was held in 
 the Commercial Exchange, Cape Town, to adopt measures for the 
 erection of a Lighthouse at Cape L'Agulhas, as a safeguard to ships 
 approaching this Colony from India and the East. A numerous 
 attendance of mercantile and nautical men, and the presence of the 
 various foreign consuls and vice-consuls resident in Cape Town, 
 evinced the deep interest which has been at length awakened 
 towards this important object. 
 
 The Hon. W. Porter having taken the chair, Mr. E. Norton 
 read the requisition which had been signed and forwarded to His 
 Excellency the Governor, and also His Excellency's answer. 
 
 The CHAIRMAN then spoke to the following effect : Gentlemen, 
 the requisition addressed to the Governor, and His Excellency's 
 authority for holding our assembly, having now been read, it 
 becomes my duty to make a few remarks. I begin by thanking you 
 for the honour which you have done me, by calling upon me to 
 preside over this meeting. It is one collected to promote no ob- 
 ject of a sordid or selfish character ; it is collected in the spirit of per- 
 fect charity and good will, free from the " barbarous dissonance " of
 
 XXVI LIGHTHOUSE AT CAPE L AGULHAS. 
 
 party spirit, bitterness and strife ; it is collected solely in order that a 
 good work too long delayed may now at length be done. To 
 preside over such a meeting, I feel to be indeed an honour.. 
 Gentlemen, I have no sooner thanked you for one favour, than I 
 find it necessary to ask you for another. I have to entreat your 
 kind indulgence towards all deficiencies upon this occasion. Be- 
 lieve me this is no idle affectation. The affectation would be in 
 doing otherwise. I had intended to have mastered and matured,, 
 as well as I was able, the subject which we are assembled to con- 
 sider, and I was anxious, shall I say ambitious ? to have made, if I 
 could, such a statement as might do some service to the cause. 
 The pressure of other avocations has destroyed this hope, and 1 am 
 therefore compelled to throw myself on your forbearance. I do so 
 with unhesitating confidence. And yet, if it be true that to be 
 yourself deeply interested is the great art of interesting others, if 
 it be true that out of the abundance of the heart the mouth 
 speaketh, I feel that I ought not to be quite incompetent to address 
 you upon this question. Gentlemen, it is now three hundred and 
 fifty years ago, or thereabouts, since Bartholemew Diaz first doubled 
 the Cape, and found himself in Algoa Bay. The narrative of his 
 disastrous return 
 
 With darkness and with dangers compassed round 
 
 is familiar to every schoolboy, and we may well conceive, I think, how 
 amidst all the horrors which beset his path, when death in a thousand 
 ghastly shapes still menaced him on every side, a beaming light 
 upon Cape L'Agulhas would have imparted con fidence and comfort. 
 It is obvious, notwithstanding, that however m uch old Diaz might 
 have wished for such a thing, he could not, in that day, have 
 wondered at its absence. But if he could have foreseen the 
 consequences to which his great exploit was finally to lead ; if he 
 could have foreseen the multitude who were, from age to age, to 
 pass along the coast he had discovered ; if all the commerce, with 
 its thousand and ten thousand sails, which was to be afterwards- 
 wafted round the promontory he was leaving, could have been 
 presented to his view ; and if he could, at the same time, have
 
 LIGHTHOUSE AT CAPE L AGULHAS. XXV11 
 
 been told that at the end of three centuries and a half that pro- 
 montory would stand just as it stood on the day of the creation, 
 that a work of necessity and mercy in which both the east and the 
 west, the old world with which he was himself acquainted, and 
 the new world which his great contemporary Columbus was 
 about to call into existence, were alike interested, should still 
 remain to be accomplished, that, prodigal of property and life, we 
 allowed ship after ship to perish on that fatal spot, for want of 
 an Argand Lamp or two and some reflectors, if such a state of 
 things as this had been prophecied to him, then, indeed, the daring 
 navigator might well have been astonished ! Our case is shortly 
 stated. A glance at any map will show that along the southern 
 coast of Africa one point of land projects beyond the rest, that 
 point is Cape L'Agulhas. On the outward voyage, vessels generally 
 speaking stand considerably to the southward, in order to catch the 
 western breezes, while, on the contrary, it is the interest of all ships 
 homeward bound to keep as close as possible to the coast, so as to 
 be sheltered from the strong winds and heavy seas which, parti- 
 cularly in the winter season, they would otherwise be necessitated 
 to encounter. It so happens that the shore at L'Agulhas, and the 
 whole country for a considerable distance inland, is deceitfully de- 
 pressed, and that mistakes are made at sea with respect to the true 
 distance and character of the mountains of Swellendam and 
 Caledon. The results have been terrific ; and to put a period, 
 if possible, to the many and melancholy losses at that Ocean 
 Golgotha, Cape L'Agulhas, is the purpose for which we are this 
 day met. I am not quite a twelvemonth in your Colony, and yet 
 since my arrival there have been no fewer than three shipwrecks at 
 this destructive point. I cannot say that I am in possession of 
 sufficient data from which to calculate, with accuracy, the amount 
 of property lost upon these several occasions. But it must have 
 been immense. I am persuaded that I am guilty of no exaggeration, 
 that on the contrary I keep far below the mark, when I assert that 
 the cargo of one vessel alone, the Northumberland, would itself have 
 amply sufficed to erect a Lighthouse upon every headland which 
 requires one, round the entire coast from Oliphant's River on the
 
 LIGHTHOUSE AT CAPE L AGULHAS. 
 
 west to the Keiskamma on the east. It would have built, aye, and 
 maintained for ages, a Lighthouse on L'Agulhas ten times over, 
 and far, far more. Are we to proceed, then, in this miserable 
 penny-wise-but-pound-foolish course, permitting vast properties to 
 be totally destroyed, which might, by so cheap and simple an ex- 
 pedient, be preserved in safety ? This speaks to the pockets 
 in language to be understood. Even on the mere question of 
 property and its preservation, economy cries aloud. But 
 ranother sound is heard, before which all meaner sounds are 
 hushed, for humanity uplifts her mighty voice. Property 
 perishes, and there lent perish if so its owners will, but the piteous, 
 waste of human life, how can we reconcile ourselves to that ? Upon 
 this subject it is difficult to dilate, without upon the one hand deal- 
 ing in cold common-places, or upon the other resorting to wild and 
 passionate declamation. I shall not attempt to do it justice-. The 
 silent eloquence of facts which are familiar to every man who hears 
 me, will be the most effective advocacy. Give you an understanding 
 to that, to which / can give no tongue. The number of human 
 beings who have within the last few years perished at this fatal 
 Cape, is a spectacle at which, if there be tears in heaven, the angels 
 weep. Take one solitary ship, the Arnhtt/n, or even the 
 Doncaster, and if that be true which is vouched by high authority ^ 
 that none of us liveth to himself, and no man dieth to himself 
 think, I beseech you, of the melancholy chasm which must have 
 been made in many a heart, by the violent and untimely death of 
 all the sufferers, who then sank to rise no more ! In the view of 
 such calamities our common nature seems to realize the pathetic 
 image of Jewish desolation, Racbael weeping for her children. 
 Gentlemen, I turn from the dismal si^ht. I do so to ask, in the 
 name of humanity, and in the name of God, if such things must 
 last for ever ? Will men stand tamely by as lookers on whilst so 
 many of their fellow-men are drowning ? Poetry has imagined a 
 ^supernatural being as tenanting that fatal shore, " the Spirit of the 
 'Cape." Savage tribes upon the coast of Africa are, we know, in the 
 -habit of devoting human victims to such intelligencies. We shudder 
 when we hear or read of barbarity like this. We feel grateful that
 
 LIGHTHOUSE AT CAPE L AGULHAS. 
 
 our lines arc cast in happier places. But if we may be fairly said 
 to cause every evil which we neglect to prevent, it may be well 
 doubted, when we consider the extent of the destruction which 
 periodically takes place at Cape L'Agulhas, whether we have much 
 ground for self-complacency. Our fellow-creatures die in both in- 
 stances, and die in both instances a miserable death, and, in my 
 opinion, the cruel superstitions of savages and heathens is to the full 
 as excusable as the more destructive indifference of civilized and 
 Christian men. Gentlemen, to proclaim that the continuance of such 
 calamities shall not at least be chargeable to us, is the object for which 
 we are now present. It may be that we shall not succeed. It may be 
 that for the want of a little, and but a little, money this noble pro- 
 ject must be given up. It may be that the world will still look 
 coldly on, and see ship after ship, and cargo after cargo, and crew 
 after crew, perish before their eyes. All this is possible. But I do 
 in my conscience believe that, if we take our measures properly, 
 the result will be altogether different. I cannot, and I will not 
 doubt it. You have on your side reason, religion, humanity, and 
 conscience, the calculations of enlightened selfishness, and the 
 dictates of the universal heart of man. With such a cause, these 
 supporters, and God's blessing, believe me, you can never fail. 
 Gentlemen, in the course of yesterday I endeavoured to ascer- 
 tain on what grounds, if any, the object of this meeting could possiblv 
 be opposed. For my own part, I can safely say that I could not 
 imagine what those grounds could be. I should just as soon have 
 expected to hear that it was wrong to keep the commandments, or 
 to clothe the naked, or to feed the hungry, as that it was wrong 
 to raise a light upon Point L'Agulhas, to warn the mariner from 
 danger and from death. I have, however, been able to hear of 
 three objections, and but three, to each of which I shall, with your 
 permission, give a brief consideration. It has been said, then, 
 in the first place, that a lighthouse is unnecessary. The 
 captains of the present day, it seems, do not require such 
 assistance. Lighthouses, it is conceived, are vulgar, old- 
 fashioned affairs, the clumsy, but convenient, mode of other 
 times for counteracting ignorance, and fit enough perhaps, even now,
 
 LIGHTHOUSE AT CAPE L AGULHAS. 
 
 to show small craft the way of creeping round a coast, but objects 
 of derision to the superior seamanship which, in the present day, 
 conducts the Eastern trade. Gentlemen, I trust that I am very far 
 from undervaluing the mercantile navy of either Europe or America. 
 That the commanders in that navy are, at the present moment, a 
 credit to their respective flags, I entertain no doubt whatever. But 
 that these commanders are now, or are likely to be hereafter, so 
 skilful as to be beyond the benefit of a beacon light upon Cape 
 L'Agulhas, cr that such skill is in point of fact attainable, consider- 
 ing the mode in which two great commingling oceans affect the cur- 
 rent in that quarter, I respectfully deny. And even were we to admit 
 that there is a class of ships which may be independent of the 
 humble aid we would afford, ships with infallible chronometers, and 
 n which the sextant itself has been discarded for instruments of still 
 greater accuracy, would it therefore follow that there are not other 
 vessels, aye, and many of them, which would hail with joy the use- 
 ful light ? But in truth the object is absurd in principle, and is 
 refuted by the state of facts. I say the objection is absurd in prin- 
 ciple, and I say so for this reason. It is not denied and I believe 
 it cannot be denied that Cape L'Agulhas, upon every consideration 
 applicable to such a subject, requires a lighthouse as much as any 
 other point or spot with which we are acquainted. Now, if you 
 tell me that a beacon on L'Agulhas is unnecessary, then I say, " put 
 out the Channel Lights, why waste the precious oil ? Tf seamen 
 should require no aids of thai description, darken every lighthouse 
 in existence, you may do so with safety." Few persons, however, 
 will, I think, be bold enough to advocate this sweeping proposition. 
 I say, moreover, that the objection is refuted by the state of facts. 
 We hear of seamanship, indeed, but we see the shipwrecks. Driven 
 by no tempest and shattered by no storm, still bark after bark is 
 betrayed by that deceptive shore, and I hold it to be preposterous 
 to talk about a speculative perfection, while the work of destruction 
 is going practically on. The second objection to our meeting differ 
 altogether from the first. It freely admits that a lighthouse would be 
 useful. It even strongly contends that a lighthouse should be built. 
 But it says in substance this : "this question is an important question,
 
 LIGHTHOUSE AT CAPE L AGULHAS. XXXI 
 
 but it is not a colonial question. It belongs to those who own the 
 -ships to make arrangements for protecting them. If British and 
 Foreign ship-owners are content that their property should be con- 
 tinually perilled, and the passengers stand in jeopardy every hour, 
 this Colony may well be content also. Why should we meddle or 
 make with what concerns other people, and what does not concern 
 us ?" Gentlemen, itistrue that the Colony of the Cape has apparently 
 but a small interest in the accomplishment of the work in view. 
 The vessels which are wrecked are not the property of our ship- 
 owners. The merchandize which is lost is not consigned to our 
 merchants. The lives which are sacrificed, for the most part, make 
 desolate other homes and hearths than those belonging lo this 
 Colony. The loss of one vessel has been felt in England, India 
 has mourned it may be for a second, a third perhaps has raised a 
 universal wail throughout the whole of the Mauritius, other 
 quarters may be reached in turn, but from such visitations, owing 
 to circumstances, this Colony is exempt. All this is true. But 
 while I admit that all this is true, I still contend that it is our 
 interest as well as our duty to stand forward. Surely it needs no 
 argument to prove that everything which conduces to the security and 
 prosperity of the great Eastern trade must be advantageous to the 
 Cape ? We have an interest, if we must consider the matter in this 
 way, that our Indian visitors should not fear a voyage to the Cape, 
 more than a voyage to Australia. But if I am asked the true reason 
 why you should come forward in such numbers as I see to-day, I 
 would answer, that you so came forward because, enforced by strong 
 necessity, you cannot help it. The disastrous spot is in our territory. 
 The harrowing scenes which it presents are forced upon our notice. 
 The dreadful nuisance which we would abate lies at our very doors. 
 Our own eyes, so to speak, behold the wretched sufferers, the men 
 and the women, and alas ! the little children too, struggling for life 
 and sinking in the wave. Our own ears are pierced with the 
 appalling cries which nature prompts in that awful hour of nature's 
 agony. Our own hands perform the sickening task of collecting 
 upon the sea-beach the bodies of the dead. Have we no interest, 
 I ask, in terminating if we can such miserable doings ? Interest
 
 XXX11 LIGHTHOUSE AT CAPE L AGULHAS. 
 
 indeed ! Why what interest had Woltemade let me do honour 
 to a brave man's memory, and thank the gentleman opposite (Mr. 
 Silberbauer) for having brought a most noble action to my notice 
 what interest had Woltemade, which prompted him to peril and to 
 lose his life in the manner which the historian has recorded ? I 
 thought I had in my pocket the paper which transcribes the incident> 
 but I find I have forgotten it. The story, however, is soon told. 
 On the first of June, 1773, an Indiaman, of which I do not know 
 the name, was wrecked somewhere off your coast. When the crew 
 and passengers were in the last extremity, Woltemade arrived on 
 horseback at the spot, and determined to save as many as he could, 
 he swam his horse seven times through the breakers, and succeeded 
 upon each occasion in bringing off with him two men. Worn out 
 with anxiety and toil, Woltemade was inclined to pause, but still 
 the cry for help came upon him from the wreck, and unable to 
 endure that cry, exhausted as he was he sprang once more into the 
 saddle, and spurred his tired horse again into the surf. He reached 
 the vessel, though with difficulty, but there, alas ! too great a 
 number, in the selfishness of suffering, fastened themselves 
 upon their deliverer, and all perished ! That was a great 
 deed, gentlemen, a deed of deathless glory. I am disposed to 
 think that the doer of it took a different view respecting what 
 should interest him, than some amongst us seem inclined to 
 entertain. He had not sixpence worth of property on board that 
 ship, nor was there a single person on her deck of whom he had 
 ever seen the face. But he acted upon other principles. He 
 knew nothing, I presume, of the Roman Drama, nor, in all probability, 
 did he ever hear the hacknied line of which the fine philanthropy' 
 excited the enthusiasm of a heathen audience ; but though ignorant 
 of classic lore, he was well acquainted doubtless with a better 
 learning, and he had pondered perhaps upon the question " who 
 is my neighbour ?" and he had laid up in his heart the simple 
 beauty of the parable which gives the memorable answer. God 
 had given him a generous and heroic spirit, and he obeyed its dictates 
 even to the death. None of us, gentlemen, is likely to be placed 
 in such extremity as was this gallant colonist. None of us is ever
 
 LIGHTHOUSE AT C-vPE L AGULHAS. 
 
 likely to be called upon to do such services or to make such sacrifices. 
 But still, in an humble and inferior measure, we may feel something 
 of the spirit by which he was imbued. If everyone now within 
 hearing of my voice, and everyone of perhaps the greater number 
 who may chance to see hereafter some account of what I say, would 
 only hear an inward voice proclaiming "go thou and do likewise," 
 why, gentlemen, in two years your lighthouse would be built 
 and burning ! Gentlemen, the only objection which now remains 
 to be disposed of is certainly a fatal one, if valid. Our hopes, it 
 is said, are doomed to be shipwrecked on L'Agulhas. I have been 
 asked to name the sum which will probably be required for effecting 
 the purpose now in view. In answer, I have named a sum con- 
 siderably more than we can need. I have named, in round number?. 
 1 0,000 as the sum whicn will suffice to build a lighthouse fit to 
 last for ever, and also to defray all charges as long as it shall last. 
 The reply to this announcement has been the usual shrugging of 
 shoulders, and the usual shaking of the head, and the usual prophecy: 
 "You will never raise the money." Gentlemen, I venture to pro- 
 phesy that this prophecy is false. I am not, indeed, absurd enouah 
 to think that 10,000, or anything like it, can be collected in this 
 Colony. We are neither numerous enough nor rich enough for 
 such an undertaking. To expect that the Cape of Good Hope 
 should build this lighthouse, would not be just if it were practicable, 
 and would not be practicable if it were just. But I wi.l rot be 
 persuaded, until we shall have tried, and fairly tried, and after 
 all have failed, that if we can forward with unanimity, with 
 earnestness, and according to our means with liberality we shall 
 not be powerfully supported from abroad. For just consider how 
 the matter stands. Examine the map of the world from North to 
 South, from East to West, and you will find that there is not a 
 spot upon the face of God's earth, where it is for the interest of so 
 many different nations that a lighthouse should be built, as upon 
 the very spot in question, Cape L'Aguihas. I hold this to be in- 
 disputable, and see the cheering results to which it almost neces- 
 sarily leads. Why, 10,000 might easily, if you had only the fit 
 machinery to work with, be raised in half a dozen towns which might 
 
 c
 
 XXXIV LIGHTHOUSE AT CAPE L AGULHAS. 
 
 be mentioned, while instead of towns there are far more than that 
 number of great nations to whom, through their consuls here (who 
 all take a lively interest in the subject), we may confidently appeal. 
 What we have to contend against is, the diminishing effect of dis- 
 tance. Our task must be to counteract this tendency as much as 
 possible ; to bring the distant near ; to secure, if we can, the services 
 of some zealous spirits, who will not like to let their fellow creatures 
 perish, even so far off as L'Agulhas. Such spirits, I believe, may 
 still be found. Details, however, will be for your Committee, and 
 with them I shall not meddle. But it is amazing to think how 
 differently we are affected by a matter which takes place beside us, 
 and one which chances to occur five or six thousand miles away. 
 A wherry upset upon the Thames, by which a single waterman is 
 drowned, will cause as great a sensation throughout wide London's 
 bounds, as the destruction at Cape L'Agulhas of a vessel of 1,000 
 tons with all her passengers and crew. Tell the people abroad, 
 tell for instance the people of England, to make the case their own. 
 Transfer the dangers and disasters of Cape L'Agulhas to some 
 head-land on the British coast. Will any man tell me that that 
 head -land would be left unprotected by a light ? Why, knowing as 
 I do, and honouring as I do, the majestic charity, the sublime 
 benevolence of London, I have no more doubt than I have of my 
 own existence, that within forty-eight hours after the tidings lhat 
 the Arniston was lost with 400 souls that freighted her had 
 reached that royal city, not 10,000, but if necessary 50,000, 
 would have been subscribed to raise a lighthouse at the scene of 
 death. What is true of London will equally apply elsewhere. 
 Let us lay the case before them ; it is a case emphatically of life 
 nd death ; let us call on them to help us, or, I should rather say, 
 to help themselves, and leave the rest to God and their own con- 
 sciences. Gentlemen, from the Colonial Government, under the 
 circumstances in which it is placed, it would be unreasonable to 
 expect assistance. Whether or not the Government at home will 
 jaid us, it is not for me to judge. Perhaps it may be thought that 
 <the substance of a recent despatch, in relation to a somewhat 
 kindred subject, does not augur favourably. It appears that some
 
 LIGHTHOUSE AT CAPE L AGULHAS. 
 
 time ago, Admiral Elliot was strongly impressed with the importance 
 of having a minute survey made of our south-eastern coast, and Sir 
 George Napier, taking as he does a warm and anxious interest in 
 all such matters, wrote earnestly home upon the subject. By the reply 
 which has been received, it appears that the Admiralty were of 
 opinion, after considering the subject, that there were but two places 
 between Simon's Bay and Port Natal in which a small craft could 
 ride, and .they came to the conclusion that the proposed undertaking 
 would be useless. From this, of course, it by no means follows 
 that the Home Government will not enter into our views about 
 L'Agulhas. For my own part I hope and believe they will. But 
 on a great question of this kind, I " put not my trust in Princes," nor 
 yet in Prime Ministers, but in the universal people. If our Gover- 
 nors should want the will to aid this work, which is impossible, or 
 if, having the will, they should want the power, which may turn 
 out to be the case why then, we have nothing for it but to do the 
 work without them. But while I feel myself justified in saying 
 this, I must, at the same time, say that I look with confidence for 
 better things. (Jentlemen, one word as to the work itself. You 
 all know the ease and cheapness with which it can be carried on 
 My honourable friend near me (Mr. Breda), the proprietor of the 
 property, gives you the ground as a free gift. Major Michell, the 
 Surveyor-General, has made a plan and estimate, and he had pro- 
 posed to add to these his gratuitous services as architect, services 
 of which, owing to other arrangements, we shall not in all proba- 
 bility be able to enjoy the benefit. I need not dwell upon the 
 claim which the gentlemen I have mentioned possess upon the 
 public gratitude. But it is not by man alone we are assisted, for 
 the very nature of the plan appears to afford us its co-operation 
 Stone for building purposes is plenty on the spot, and there is an 
 elevation of solid limestone ready to receive the edifice which we 
 propose to raise. Gentlemen, I have detained you long. I have 
 now done. There is but one thing more which I would say to 
 you. Do not yield to little difficulties and discouragement. You 
 will meet these things, and meeting them you must overcome them. 
 Do not expect that in every quarter you will at once arouse 
 
 c z
 
 XXXVI LIGHTHOUSE AT CAPE L AGULHAS. 
 
 indifference, or look for it that men will be able everywhere to> 
 trample selfishness beneath their feet. Lighthouses are not 
 things which rise like exhalations. I have myself looked from 
 shipboard upon the Eddystone at night. I would fain derive a 
 moral from what has occurred upon the site of that celebrated 
 structure. To surmount all the difficulties which nature there pre-, 
 sented in such numbers, and found a lighthouse in the very waves 
 might well have seemed a vain and visionary notion. But still the 
 noble thought was not abandoned. Winstanley strove to realize it, 
 but the savage sea, lashed into fury, as if by the attempt to deprive 
 it of its prey, sprang on its victim, like a thing of life, and in a 
 night laid prostrate the workman and his work. But still the noble 
 thought was not abandoned. Rudgerd next essayed his skill, and 
 then, as if the two great destructive elements of nature had made 
 a compact and alliance, fire came to succour and avenge the baffled 
 ocean, and the finished building was consumed. But still the 
 noble thought was not abandoned, ftmeaton finally arose, and he 
 triumphed gloriously, and there his mighty labour stands, firm as 
 the rock into which it is inserted ; destined, for many an age, to 
 smile superior to every storm, and defy the surges of a thousand years. 
 Your obstacles are of a widely different description ; but, such as 
 they are, encounter them with the same determination, and they, too, 
 will be overcome. Send far and wide over the deep your philan- 
 thropic summons. There is, it seems, in the neighbourhood of 
 Cape L'Agulhas a certain spot termed the Tower of Babel The 
 tower which bore that name of old was begun by one people who 
 spoke one speech, but idle if not impious in its object, the building 
 failed in consequence of disunion, for the language of the builders 
 was confounded. Let us hope to lay the first stone of a tower to 
 be commenced under other auspices, and for other objects j a tower 
 for the erection of which many different tongues and nations shall 
 combine in fellowship and concord ; a tower to be raised by those 
 who are of one heart, if not of one dialect ; a tower to which the 
 mariner can look in his extremity, and by which, long after we our- 
 selves have passed away, the blessing of those who were ready to 
 perish may be gratefully called forth.
 
 LIGHTHOUSE AT CAPE L AGULHAS. 
 
 The Hon. Mr. BREDA said : It may appear strange that a farmer 
 should rise to move the first resolution on such a subject, but although 
 neither interested in shipping nor commerce, I cannot but look 
 upon the object which this meeting is assembled to promote as one 
 of importance to every inhabitant, not only of Cape Town but the 
 whole Colony at large ; and I feel especially called upon to come 
 forward on this occasion, as most of the disasters referred to in this 
 resolution have occurred on the coast in the neighbourhood of my 
 own dwelling ; and I have been painfully called on to witness, with 
 my own eyes, ship after ship cast away, valuable cargoes strewed 
 along the beach, and hundreds of human beings at a time washed up 
 dead upon the shore. There was the Arniston on the I3lh of July, 
 1819, a total wreck ; when out of 365 persons on board, only five 
 escaped. No less than 360 dead bodies of men and women and 
 children were washed on shore, and, what is more, they lay there a 
 week, before any man knew their fate. I saw them, gentlemen, with 
 my own eyes, torn and partly devoured by the preying vultures. 
 Had a lighthouse been rear, this accident would probably not have 
 happened, as the Arniston went ashore in the night. The second 
 was the Martha, and third and fourth the Jessie and the Linius, 
 when numbers also perished. Then came the Doncaster with fifty or 
 sixty men, women, and children, who were all drowned, and 
 washed on shore mutilated ; and then we saw that noble property 
 the Duke of Northumberland wrecked and totally lost. The Venerable 
 followed ; and a French vessel the La Lise also miserably perished, 
 the captain, a gentleman, the proprietor of the vessel and cargo, with 
 his wife and children, the whole number of passengers, and one half 
 of the crew, drowned and washed on shore in a mutilated state. At 
 these last wrecks I was not present, but the letter of my son, 
 who was on the spot, describes scenes such as I hope I shall never 
 witness ; and let me now indulge the hope, that by the measures 
 to be adopted by this meeting, a stop will be put to the destruction 
 of human life and valuable ships upon Cape L'Agulhas, and that 
 I shall thus be relieved from the painful sight of dead bodies, so 
 frequently washed up on my property. 
 
 Mr. ANDSDELL, in moving the second resolution, remarked that, in
 
 XXXV111 LIGHTHOUSE AT CAPE L AGULHAS. 
 
 the case of the Arniston, where all on board, as Mr. Breda had 
 stated, had been lost except five, and a week passed before the 
 circumstances became known, had a lighthouse keeper and family 
 been on the spot, even although the wreck might not have been 
 prevented, yet several of the sufferers could, probably, have been 
 saved ; as it is not unlikely that some reached the shore alive and 
 perished miserably for want of timely assistance. 
 
 The following communication was presented to the meeting 
 from M. De Lettre, French Consul : 
 
 " Cape Town, Cape of Good Hope, 
 
 July 1 2th, 1840. 
 
 " Gentlemen, The melancholy feelings which every sympathizing 
 mind must experience on learning the accounts of various shipwrecks 
 which have taken place during a very short space of time, on the 
 rocks at the point of Cape Agulhas ; the poignant sorrow of the 
 families of the victims who have perished ; and also the cargoes 
 swallowed up by the sea, to the great injury of various persons 
 interested in the shipwrecked vessels, are sufficient to prove the 
 absolute necessity for erecting a lighthouse of large dimensions at 
 that station, as well as providing accurate instructions for the 
 guidance of the captains of vessels which annually frequent the 
 coast, and to endeavour to prevent a recurrence of the same misfor- 
 tunes. I take upon myself (in accordance with the resolution you 
 are about to pass on the subject) to transmit immediately the pro- 
 spectuses to their Excellencies the Ministers of France and to the 
 Governor of Bourbon and Pondicherry, requesting them to circulate 
 these papers among the commercial houses and assurance companies 
 of their respective countries, for the purpose of encouraging them to 
 subscribe a certain amount, in order to assist in meeting the expense 
 which the erection of such an edifice will incur. 
 
 " At the same time I submit to you, gentlemen, the propriety of 
 addressing a vote of thanks to Mr. Silberbauer, for the indefatigable 
 zeal he has manifested in this affair, with the hope of conducting 
 the project to a happy issue ; as also of giving him some mark of
 
 LIGHTHOUSE AT CAPE L AGULHAS. XXXIX 
 
 public acknowledgment of his assiduity in discharging the office 
 of agent of commerce in this town. 
 
 " (Signed) F. DE LETTRE, 
 "French Consul at the Cape of Good Hope." 
 
 Mr. MERRINGTGN said, as he might not have an opportunity of 
 making the suggestion to the committee, he would now mention an 
 idea that had occurred to him during the eloquent address to 
 which they had all listened with so much pleasure. With such 
 a powerful appeal to humanity, he thought they might derive much 
 assistance in their object, by making the proposed lighthouse also 
 a monument to humanity. It was well known with what a warmth 
 of interest the public regard the effort making to put an end to the 
 slave trade, and he considered this a fitting opportunity for comme- 
 morating Mr. Clarkson's labours in this respect, by making the 
 lighthouse at Cape L'Agulhas a Clarkson Monument. 
 
 Mr. BORRADAILE begged to enquire whether any gentleman present 
 could give any account of the money which had been subscribed to 
 erect a monument to the late Captain Horsburgh ? If that fund 
 were not already disposed of, he knew no spot more suitable than 
 Cape L'Agulhas on which to place a tribute to the memory of that 
 singularly meritorious individual. 
 
 Mr. STEIN regretted the absence of Colonel Michell, who, he 
 believed, could give some information respecting that fund, having 
 had several interviews on the subject, in ihe year 1838, with Mr. 
 Borradaile, sen., and the Cape Trade Society. He believed the 
 spot then deemed most suitable for the erection of a monument to 
 Captain Horsburgh, was somewhere in the China Seas. 
 
 The CHAIRMAN said it would certainly be the duty of the com- 
 mittee now appointed, to put themselves in communication with 
 the parties who had raised such a fund, and to make any necessary 
 enquiries as to whether this suggestion could be carried into effect. 
 He was not sufficiently acquainted with the career of the dis- 
 tinguished man who had been named, to say whether the China 
 Seas or Cape L'Agulhas would be the most fitting situation for this 
 monument ; but he considered that nothing could be more fitting
 
 ON THE INSOLVENT LAW. 
 
 than that utility should be combined with the monument of such 
 a man. Where this principle is overlooked in the erection of 
 monuments, they are likely to be regarded with less respect. He 
 remembered one near Dublin, which, being fit for no purpose what- 
 ever, is commonly pointed out as an overgrown milestone. But if 
 every man who traverses the ocean around that destructive Cape, 
 besides enjoying the benefit of a light, could also have his mind 
 refreshed by a remembrance of the services of an illustrious in- 
 dividual, no more fitting opportunity could probably be found for 
 the employment of any fund that may have been raised for erecting 
 a testimony of respect to his memory. 
 
 The resolutions submitted to the meeting havingbeen unanimously 
 adopted, and the cha:r vacated, Mr. Simpson was called to preside 
 and a hearty vote of thanks was given to the Hon. Mr. Porter for 
 his able conduct in the chair. 
 
 Mr. PORTER said he could only conclude as he commenced, by 
 saying that the compliment was all on the side of the meeting. 
 He considered that in calling him to preside on that occasion, they 
 had done him a very great honour, and if their efforts were success- 
 ful, and a lighthouse erected, he would, to the last hour of his life, 
 count it a high distinction to have been in the chair of so useful a 
 meeting. 
 
 ON THE INSOLVENT LAW. 
 
 [Supreme Court, Wednesday, July 15^, 1840.] 
 
 The ATTORNEY-GENERAL said : On a subject respecting which 
 he had so much to say in a proper place, he now felt a'most disposed 
 to reserve himself entirely, as it was his intention, as soon as other 
 duties would admit, to communicate with the Governor, and obtain 
 a special meeting of the Legislative Council, where, taking as he did
 
 ON IMMIGRATION. 
 
 a deep interest in the subject, he would endeavour in conjunction 
 with his learned friend (Mr. Cloete), then no longer professionally 
 opposed, to give the entire insolvent law as well as the question of 
 preferent bonds a full and complete discussion ; depending for 
 its promulgation on the liberality of the public press. He would only 
 say that at present it is not sufficient that 10, 20, or ,100,000 
 be traced to have been in the possession of an insolvent within a 
 given period. Nor could he (the Attorney-General) call on the 
 Court to convict any man on merely tracing any amount to his hands 
 and there closing the case. He considered it would be hard to 
 subject a man who, through ignorance, has kept no books, to the 
 necessity of accounting for the last farthing, under pain of a punish- 
 ment which the law has reserved for the most heinous crimes. 
 There were' other considerations, which he would ta^e an early 
 opportunity of throwing before the public. 
 
 ON IMMIGRATION. 
 
 [Legislative Council, Wednesday, May \yb, 1840.] 
 
 The ATTORNEY-GENERAL said : It appeared to him there was no 
 difference of opinion among them as to the abstract question. All 
 were agreed that there is a want of labour in the colony, and all 
 were desirous of having that want supplied. But in life it is always 
 found that to be sensible of our wants is the easiest thing in the 
 world ; what men trouble their heads and hands about is to supply 
 them. He was always opposed to throwing cold water upon noble 
 projects, as he considered that to attempt more than could be 
 accomplished is always better than to stand still and do nothing. 
 At the same time we should not shut our eyes to the difficulties of 
 the position in which we are really placed. With regard to the 
 great question of Emigration, as an Irishman, coming from a country 
 where he had seen the utmost excess of misery arising from the
 
 xl'ti ON IMMIGRATION. 
 
 circumstance of there being more h-mds than can possibly obtain 
 employment, to a country where he found there was such great 
 difficulty in obtaining hands, and such inconvenience and diminu- 
 tion of happiness experienced from the want of persons to 
 act. as servants, he should surely be as much disposed as any 
 man to adopt measures which would yield relief to the one 
 class, while they would bring prosperity to another. He had 
 not had an opportunity of seeing the Colonial Gazette, from which 
 such repeated extracts had been made, but he thought it might be 
 fairly inferred that what the Ministry at home must have chiefly 
 before them in promoting Emigration, must be to relieve the pres- 
 sure of the population there. He considered it probable that an 
 English Minister would chiefly look to this, not, however, that he 
 would necessarily shut his eyes either to the benefits conferred 
 upon those who are thus brought from circumstances of distress 
 into a country where they will have a fair and open field for their 
 industry, or upon the colonists who are thus supplied with neces- 
 sary labour; but the great and animating purpose of the ministers 
 who promoted Emigration, must obviously be to relieve the distress 
 of population at home. Now he thought that this consideration, 
 taken in connexion with what was stated by the Colonial Secretary, 
 had some bearing on the question I'efore the Council, as showing 
 that the Colony was not likely to derive so much fencfit from the 
 measure n w proposed, as everyone, he was certain, although he 
 might not anticipate, must heartily wish. This Colony never has 
 been a Colony chosen for Emigration from England ; the tide of 
 Emigration has flowed towards Canada and Australia, but it has 
 never set strongly towards this Colony. He would observe in pass- 
 ing that hitherto the Emigration from England and Ireland had not 
 been of the right sort. The general class of Emigrants have been 
 small capitalists, who have sold their farms or other property to pay 
 their transport, and who are enabled to g > to work on their own- 
 means on reaching their destination. By this species of Emigration 
 the Home country could have been but very slightly, if at all, bene- 
 fited ; for if it be true that it is advantageous for a country to have 
 the amount of capital bearing a certain proportion to the amount of
 
 ON IMMIGRATION. 
 
 labour, then the system which will diminish the number of labour- 
 ing hands and diminish the amount of capital at the same time, and 
 in a greater proportion, does not ultimately do any good. Now the 
 present pl.m is, to do the very thing which is wanted at home, and 
 is equally wanted here, and that is, to raise a fund to bring out 
 people who cannot bring themselves. But it is to be expected that 
 the stream of gratuitous Emigration which Government will set in 
 action will follow the voluntary stream, and therefore that the Cape 
 will profit less by the measure than Australia and the two Canadas, 
 The amount of English capital which has been transmitted to these 
 colonies is immense ; and it is to be expected that the English 
 Minister will act on the principle of sending the pauper after the 
 capitalist, and that it will appear to him that the Cape is not the 
 best place for gratuitous Emigration, seeing that voluntary Emigrants- 
 havegenerally chosen the other Colonies. The feeling would perhaps- 
 be different if the object of the Ministry were to relieve the colonists, 
 and not to relieve themselves of the pressure of the home population ; 
 they would then examine and find that this Colony is in urgent 
 want of hands ; but if their object also were to benefit the pauper 
 they might still consider this Colony as a place where industry 
 and capital are not so likely to be adequately remunerated. 
 Talking then of waste lands, he knew it to be the opinion of his- 
 hon. friend on the extreme right (Mr. Ross) that the proceeds of 
 the sale of such lands should be expended in the formation of good 
 roads; and he must acknowledge that in his own opinion roads 
 should take precedence of every other object ; fora country without 
 roads is as a body without veins or arteries to give circulation to the 
 fluids which support life. The sum requisite to bring out each 
 Emigrant might, he thought, be about 15 ; but say it were only 
 10. To bring out 1,000 paupers, therefore, would requi re _ 10,000* 
 and he considered that, in the present position of the Colony, that 
 sum, if realized from the sale of waste lands, might be much more 
 beneficially expended in the formation of roads and other local im- 
 provements, which would bring the Colony into such a state that the 
 stream of spontaneous Emigration would be likely to flow towards 
 it. Although, however, he felt there was something peculiar in the
 
 ON A PAPER CURRENCY. 
 
 position of the Colony which rendered it unlikely that anything 
 effective would be accomplished by it, he highly approved of the 
 principles thrown out in the extracts which had been read from the 
 instructions to the Land and Emigration Board, and he would give 
 his cordial assent to an expression of the Council's opinion as to the 
 soundness of those principles ; but he considered he should be quite 
 uncandid to the Council and to the Colony, were he not to state his 
 opinion that, until by forming good roads, and making other 
 internal improvements, the tide of voluntary Emigration shall be 
 attracted to these shores, no practical measure of utility is likely 
 just now to follow from this resolution. 
 
 ON A PAPER CURRENCY. 
 
 [Legislative Council, Monday, August ^\th, 184.0.] 
 
 The ATTORNEY-GENERAL : Itis notmyintention to enter just now 
 upon anything which can be called an argument. I wish, however, 
 to state, without reasoning upon them, three things which were 
 suggested by the able speech of my hon. friend on the extreme left 
 (Mr. Ebden), and which I think have some bearing on the matter 
 now in hand. In the first place, I wish to say that, with scarcely 
 any modification, I adopt the general propositions which have been 
 advocated by my hon. friend ; but I conceive that those genera] 
 propositions, though very true, bear but slightly ui'on the immediate 
 question now before the Committee. That question is not whether 
 our existing currency is the best imaginable currency, but whether 
 it is not desirable, in the present state of the Colony, to employ 
 some ,50,000 or _6o,ooo in public works, rather than to employ 
 that sum in the destruction of the same amount in paper money 
 it beirg clear that the notes so to be burned would be a certain 
 sacrifice for the purpose of letting in some better circulating medium; 
 and it being in a great degree doubtful whether that sacrifice would
 
 ON A PAPER CURRENCY. 
 
 have the anticipated effect. In the second place, I would say that 
 there is no witchery in a paper currency convertible into gold at 
 the will of the holder. It is very clear, and has been proved, that 
 the value of a paper may be maintained on a par with gold without 
 being convertible into gold. Convertibility is not a good thing 
 considered in itself; on the contrary, by creating a necessity on the 
 part of paper issuers for having at all times a quantity of unemployed 
 specie lying by them, it is considered, in itself, an evil. This evil, 
 however, is the price paid in England and elsewhere for the most 
 obvious means of checking over-issues. Now, as far as the Govern- 
 ment paper money of this Colony is concerned, this, the great use 
 and object of convertibility, does not exist ; for everyone knows that 
 any further issues of Government paper are quite out of the question. 
 In the third place, I wish to say that in fact the Government paper 
 is, as it appears to me, convertible into gold at the will of the holder. 
 Would my hon. friend derive a paper currency for this Colony 
 which should be payable in gold at every drostdy in the Colony, at 
 Graham's Town, at Graaff-Reinet ? (No, no, from Mr. Ebdcn.) 
 Well, then, as rhc Gr.iham's Town holder is concerned, the orly 
 difference between the present paper currency and that with which 
 my hon. friend would supply its place, is this, that now he gets his 
 gold in London (by means of a Treasury bill), and that then he would 
 get his gold in Cape Town. Is there any essential or philosophical 
 difference ? I think no difference in principle exists, and the 
 practical effect of the slight difficulty thus interposed is beneficial 
 rather than otherwise, as it tends to keep the |-aper steady, and like 
 the small premium on coining gold at the Mint, to prevent people 
 from rushing in with large quantities unnecessarily. When the com- 
 mercial relations between England and this Colony are taken into ac- 
 count, I consider that for all practical purposes gold in London is 
 just the same as gold in Cape Town. So long as Government paper 
 procures Treasury bills at one and a half per cent., so long any man 
 who has .100 can always be able to get from somebody else ico 
 sovereigns for it ; and thus it will virtually be convertible at 
 pleasure. 1 shall not seek to draw any inferences from these positions, 
 or to apply them directly by way of answer to a good deal of wh.it
 
 ON A PAPER CURRENCY. 
 
 my hon. friend has said ; but I do not think that, if maturely 
 weighed, they will serve to show that the evils of present pape r 
 currency have been by my hon. friend not a little exaggerated. 
 
 Mr. Ross : With the observations which have just been made 
 by my hon. friend, I quite agree ; but no mention has been made of 
 the uncertainty that exists how this money is to be applied. I take 
 it for granted that it shall be bona fide specified in the body of the 
 report for what objects the re-issue is to be made, and that those 
 objects shall be new ones, for which the revenue is clearly Inappli- 
 cable. 
 
 Mr. EBDEN : It was no more than I expected that my hon. 
 friend (the Attorney-General) should give his assent to the g enera 
 principles I have humbly endeavoured to advocate. But I would 
 beg to ask how he gets over the difficulty arising from the absence 
 of all pledge or promise to pay, in seeking a remedy against the 
 issuers ? 
 
 ATTORNEY- GENERAL : I do not enter on that question now. 
 The objection is merely technical ; it is nothing in practice. 
 
 Mr. EBDEN : It is admitted that no State ever possessed the 
 power to issue paper money to any amount without abusing it. 
 
 ATTORNEY-GENERAL : But my hon. friend has heard in the 
 memorandum of the Secretary to Government, that no idea is enter- 
 tained of any further issue, that it is " utterly out of the question." 
 
 ON THE SAME SUBJECT. 
 
 {Legislative Council, Thursday, August 2"jtb, 1840.] 
 
 The ATTORNEY-GENERAL : It was not my intention to trouble 
 Your Excellency with any remarks to-day, as almost every topic con- 
 nected with these resolutions has been so fully discussed in committee ; 
 but my hon. friend having called Your Excellency's attention to 
 three of the resolutions which we had under consideration, and
 
 ON A PAPER CURRENCY. 
 
 thrown out some suggestions which certainly are, as the American 
 newspapers say when they are about to make some doubtful state- 
 ment, "important if true," I think it necessary to make a few 
 remarks on the subject of those particular resolutions. With regard 
 to the Jth, which my hon. friend seems to regard as supererogatory, 
 I must confess that I regard it as exceedingly important that we 
 should make a statement of the interpretation we put upon the 
 documents, which my hon. friend deems so equivocal. For what 
 will be said by the Home Government, and what has been said by 
 many in the Colony, as alluded to by the hon. Secretary to Govern- 
 ment? That since 1825 this Government has had reiterated orders 
 to withdraw the paper money, which, with culpable neglect of its 
 bounden duty, it has neglected to do. Now it is very important 
 to state to the Home Government that this is altogether a misre- 
 presentation. We assert in the previous resolution that " the Home 
 Government have selected a particular result of their own arrange- 
 ments, and at a time unfavourable to the Colony, to withdraw the 
 paper money, &c." But if the Home Government can say, " we 
 told you to withdraw that money in 1825 ; look at the letter to 
 Mr. Under Secretary Wilmot Horton, and look at the Treasury 
 minute ; have we not, instead of selecting an opportunity, given you 
 fifteen years' notice during which period we have sent you out 
 reiterated orders to destroy that paper money ?" instead of this 
 resolution then being supererogatory, its omission would be 
 "worse than a crime," as Fouche has it, " it would be a blunder." 
 When you tell a man who has written anything that you attach to 
 it a meaning different from what he intended to convey, he may be 
 incensed at your impudence, and if it appeared that you had not 
 read it attentively, you would certainly not recommend yourself to his 
 favourable consideration. This Council might not perhaps be charge- 
 able with ignorance or impudence, but rather with a beautifu I combina- 
 tion of both. Looking at these two documents, what would be the 
 construction put upon them by the Supreme Court, with reference 
 to the intentions of the parties ? This is a mere question of language, 
 and had the resolution confined itself to saying that, on an attentive 
 consideration, we cannot find that the Home Government have
 
 ON A PAPER CURRENCY. 
 
 ''expressed " an intention to withdraw that paper money, it might 
 have been better. The word "entertained" is surplusage, as> 
 whatever means my hon. friend (Mr. Ebden) may have had of 
 knowing the sentiments entertained by the Lords of the 
 Treasury in 1825, we can have no means of coming to such a know- 
 ledge but by the terms of their minute, yet putting ourselves, as 
 far as their language enables us, in their places, we may say safely 
 that no such intention was ever entertained. Now, upon the pro 
 babilities, does it not appear extraordinary that this letter and 
 Treasury minute were written at a time when this paper currency 
 was just emerging from its chrysalis rix-dollar state into what my 
 hon. friend (Mr. Ebden) would call its present butterfly form, in 
 these sterling promissory notes ? And is it not singular that in 
 destroying the old paper and sending out the new notes, the Home 
 Government did not send out some such message as this, " We beg 
 your attention to the Treasury minute, by which we directed the 
 speedy extinction of this paper money, instead of which you are 
 making it renew its youth as the eagle. We must have a full ex- 
 planation why this is necessary, and above all we must have an 
 alteration of the principle on which it at present circulates." Now, 
 although I have no access to the documents, my hon. friend the 
 Secretary to Government, whose accuracy of statement is unim- 
 peached, and whore means of knowledge are perfect, has informed 
 us that such directions were never given, and consequently never 
 reiterated. 
 
 SECRETARY TO GOVERNMENT : Certainly not. 
 
 ATTORNEY-GENERAL : Then if your view of the Treasury minute 
 is correct, it was the most natural thing in the wor'd that such a 
 declaration should be made. 
 
 SECRETARY TO GOVERNMENT : Pardon me for interru ting you a 
 moment to state that, during our wordy discussion in committee, I 
 pointedly mentioned the circumstance that the Home Government 
 actually sent a considerable amount of notes which could never get 
 into the military chest, being only made receivable in payment of 
 taxes. Judge, after that, how far there was sn intention to redeem 
 this paper money.
 
 ON A PAPER CURRENCY. 
 
 ATTORNEY-GENERAL : I am glad the fact has been again elicited, 
 It appears, then, that the Home Government, in sending out notes 
 to replace the old rix-dollar circulation, made a portion of those 
 notes bear terms involving an indefinite extent of duration ; 
 which is another argument with respect to their intemicns. Coming 
 now to their language in page 1 1, following the passage which has 
 been read and relied on by my hon. friend (Mr. Ross), and on 
 which a word by-and-bye, we find " as a part of those rix-dollar s 
 were issued by a Government establishment, called the Lombard 
 Bank, upon various securities, the sums which may from time to 
 time be paid upon these securities should be appl ed towards the 
 liquidation of this paper money." We do not deny that. My hon. 
 friend opposite has indeed contended that the Home Government 
 should pay the whole, but the cancelled repayments would clearly 
 be a reduction of the amount. It is not even Lord John Russell's, 
 intention that the whole amount should now be redeemed, but 
 only such portions of the sums which have been transferred from 
 the Discount Bank to the Colonial Treasury, as might not be required 
 for the transactions of the Bank. The passage relied upon by my 
 hon. friend (Mr. Ross) is in substance this, that every 103 of 
 notes taken in exchange for jioo Treasury bills should be not 
 re-issued, but remitted to England as vouchers for the bill sent, and 
 there destroyed. From this my hon. friend argues, that all the 
 paper money that got into the commissariat chest should be with- 
 drawn from the circulation. But is it not evident that the object 
 of the Home Government in this Treasury minute was to get rid of 
 a depreciated currency ? Was it not clearly intended to create a re- 
 servoir into which the redundancy should flow ? Was not their 
 language in effect this : " Your paper is redundant, now we open 
 a way for the escape of the redundancy, and when it has been re- 
 moved, the remainder will oufstand at its full value." That such 
 was their intention there can be no doubt. There is noth'iig in 
 the machinery they employed that can indicate their having had 
 a view to ultimate extinction. They say there is in the measure 
 " nothing compulsory," and indeed their whole subsequent proce- 
 dure proves that their only intention was to get rid of the rcdun- 
 
 d
 
 ON A PAPER CURRENCY. 
 
 dancy which had given rise to the depreciation. But there was a 
 point at which, the equilibrium being restored, the public would 
 seek to retain the remainder of the paper as a means for making 
 remittances. That point gained the redundancy disappeared, and 
 the remaining paper becomes a solid and fixed circulation equal 
 in value to gold. But the reasoning of my hon. friend (Mr. 
 Ebden) goes upon the notion I will not call it " a crotchet," 
 as he does not like to have it said that he entertains crotchets 
 his reasoning is founded upon the notion that convertibility 
 is an essential condition of every currency. I now join issue 
 with him on that point, and undertake to give him the first 
 economic authorities in support of the position that convertibility 
 into gold is not at all necessary to maintain paper on a level with 
 gold ; and that it is quite possible for every pound note of 
 such inconvertible paper to maintain the value of a sovereign. 
 To prove this it is only necessary to glance into history. At the 
 time that Mr. Pitt's bill was passed, four years elapsed before there 
 was the slightest depreciation of the currency ; and it was not until 
 the Bank rushed on to unlimited issue, and poured a further mass 
 of paper into the market, that it began to depreciate, and fell to 
 the point to which my hon. friend has alluded, when the guinea 
 was equal to l I is. 6d. But for four years the value of the 
 paper remained unimpaired, which shows that the value of a paper 
 currency is not alone determined by its convertibility ; but that a 
 restriction on over-issue is sufficient to prevent depreciation. 
 I wish I had a copy of McCulloch here to quote the 
 passage, as I would press the matter a little further with 
 my hon. friend on my left (Mr. Ebden). His great cry, put forth 
 with as much ability as perseverance, has been, "Give us a paper 
 currency convertible into gold at the will of the holder." Now, I 
 have always regarded the convertibility of papei into gold as an evil 
 instead of a good ; because the issuer is under the necessity of 
 keeping in his coffers, of no use to any mortal, a quantity of gold 
 which might as well be at the bottom of the sea, and which, but 
 for that necessity, would be employed in the transactions of pro- 
 ductive industry. But this is the price paid in England for a
 
 ON A PAPER CURRENCY. 
 
 greater advartage. It serves to prevent the issuers from acting as 
 the Bank of England did on the occasion to which I have referred, 
 that is, from inundatine the market with notes so as to disorder 
 contracts, and produce other inconveniences. There is thus a 
 balance of evils, and beyond doubt that arising from convertibility 
 is the least. But does this apply to the Government money of this 
 Colony ? No man here dreams of another pound note being issued. 
 If I were speaking in another place and under other circumstances, 
 I might call out for convertibility ; but in this Colony there can be 
 no use in raising such a cry, seeing that the sole object of converti- 
 bility is an object you have already gained. -Returning, then, to 
 the views of my hon. and learned friend on the other side, we take 
 upon us to express our sense of these two documents ; and we find 
 in the letter of Mr. Herries the remarkable expressions which were 
 read by the hon. Collector of Customs, an<l which I shall here read 
 again, as they go the whole length of the position I shall have laid 
 down. He goes on to say : "But for the sake of remedying the in- 
 conveniences occasioned to the Colony by the fluctuating value and 
 increasing depreciation of this paper currency, the Treasury thought 
 it right that the mother country should make the sacrifice of pro- 
 viding such a quantity of metallic money as might be necessary to 
 create a solid and fixed circulation at the Cape, by supplying the 
 place of this paper money to such an extent as should be sufficient 
 to give a fixed and permanent value to the remainder." Now it 
 is impossible that the man who wrote this entertained the idea of 
 the extinction of the paper money, and it would be an outrage upon 
 common sense to tell Mr. Herries to his face that he did not look 
 forward to some part of that paper remaining as a solid and fixed 
 circulation at the Cape. It becomes an Attorney-General of a 
 Colony to be cautious in speaking of the Home Government, but 
 it certainly appears that the Government of 1825 did not very well 
 know iheir own minds. The Proclamation of Lord Charles Somerset 
 declares that his Britannic Majesty has determined to establish the 
 British currency as the circulating medium of all the Colonial 
 possessions of the Crown, and states that the Governor has in con- 
 sequence issued the necessary instructions that a table or scale shall
 
 I'll ON A PAPER CURRENCY. 
 
 be printed forthwith, specifying the relative value of the paper rix- 
 dollar, and of all the lesser proportion thereof, with British money, 
 in order to regulate the payment of the established Government fees, 
 &c. This probably refers to the establishment of a measure for 
 the circulating medium as a means of calculating the rates and taxes. 
 But, admi'.ting (what is not here expressed) that this Proclamation 
 was intended to introduce the British currency, although it is 
 known that nothing was ever done to introduce the precious metals 
 instead of the paper, yet admitting that this was the object of this 
 Proclamation, the only inference is, that the person by whom it was 
 drawn up did not understand the paper he undertook to explain ; 
 and we are just as well qualified, and a little more interested, to 
 form a right conclusion respecting it than he was. 
 
 Mr. Advocate CLOETE. That Proclamation was confirmed by 
 the Home Government. 
 
 ATTORNEY-GENERAL. It was ; but what does the minute say ? 
 You are to withdraw all the rix-rollar notes ; those under ten 
 dollars you are not to re-issue but send them home ; and those 
 above that value we shall give you directions how you are to dispose 
 of; and you may in the meantime issue any portion of these you 
 may want for current expenditure. 1 think I am justified in saying 
 that there is some little incongruity between the ininutc of the 
 Treasury Board and their instructions to their own ofncers, and this 
 within a month or two ; ere the ink of the one was dry, the other 
 was sent out. The only way I can reconcile them is by supposing 
 that the intermediate period was intended as ?n opportunity for the 
 redundancy to escape. I know of no reason why I should consider 
 that opportunity to be now, rather than then. On the whole, my 
 original argument remains unimpeachcd, that the Treasury minute 
 was intended merely to catch the redundancy ; and that when there 
 was no longer a run for Treasury bills, grounded on the depreciation, 
 the remainder should be of permanent value. It appears to me, 
 therefore, that we are not only called upon to express our sentiments 
 on these documents, but that we are perfectly borne out by them 
 in the sentiments we have expressed. The other objection of my 
 hon. and learned friend went substantially upon the evil of this 
 Colony being charged with 2 per cent, upon a portion of a balance
 
 ON A PAPER. CURRENCY. 
 
 in the Treasury chest. This is certainly only a balance of disadvan- 
 tages. If comparing plans, it is found that certain important public 
 works which are urgently wanted, cannot be erected at a small 
 charge to the Colony, it must be admitted that the proposed 
 arrangement promises to be extremely useful ; and if, in sending a 
 representation to that effect to the Home Government, we could 
 attach to our request the mention of some specific work, in fav jr 
 of which the voice of the whole Colony would be uplifted, then it 
 appears to me the further objections of my hon. friend would be 
 obviated, when he says that the request has already been made 
 and refused, and what is the use of our going back without some 
 additional circumstance to urge ? My ho. friend opposite (Mr. 
 Cloete) thinks it will be a bad bargain for the Colony, and my 
 hon. friend on the left ( >Ir. Ebden) thinks it will not bear the 
 Home Government harmless. But both of these positions cannot 
 surely be right. My hon. frieni (Mr. Ross) says by taking the 
 bills of the Treasury we save them the expense of sending out specie. 
 Now, without venturing into the subject of the exchanges, for I 
 did the other day put my foot into that Serb onian bog, and was 
 thoroughly engulfed before I knew what I was about, but thus 
 much is clear, that as far as their expenditure goes, the Commissary 
 here, who represent the Treasury, can always get l per. cent for 
 these bills from any person who wants to remit. Any merchant 
 can obtain i^ per. cent on his bill, and it is acknowledged that 
 no bills are so good as those of the Treasury. Yet no one would 
 consider that by taking a merchant's bill at that rate, he laid him 
 under any obligation ; on the contrary the transaction is entirely 
 for value received, and if one person will not agree to the terms 
 they may be obtained from his next door neighbour. Seeing that 
 Treasury bills can always command l^ per. cent., it ii evident that 
 we have no right to set off any obligation on that account. It 
 appeals, then, that these resolutions do just express the very thing 
 that ought to be expressed ; and I do trust that when they go home 
 with the recommendation of your Excellency and the concurrence 
 of this Council, they will be agreed to by the Home Government, 
 and thus be instrumental in obtaining for the Colony the erection 
 of various public works, of essential and permanent importance.
 
 ON A PAPER CURRENCY. 
 
 I promised my friend some economic authority. Not having 
 McCulloch at hand, I shall refer him to Adam Smith with 
 supplemental dissertations by McCulloch, p. 489 : " In the 
 first part of this note we endeavoured to show, in the first 
 place, that when the power to supply money is not restricted, its 
 value depends, like most other commodities, entirely on the cost of 
 its production ; and that in the second place, or when the power to 
 supply money is monopolised, its value does not depend on the cost 
 of its production, but on the quantity in circulation compared with 
 the demand. This distinction is of very great importance, and 
 should never be lost sight of. Its elucidation has served to clear up 
 almost all the doubts and difficulties with which the theory of money 
 was previously encumbered, and has been a means of suggesting 
 several important practical measures. Until very recently it was 
 universally supposed that the ability to convert paper into gold at 
 the will of the holder was necessary to sustain its value. But it is 
 plain, as well from the principles already stated as from experienre, 
 that the mere limitation of the quantity of paper made legal terde r 
 is quite sufficient to preserve its value on a par \vith the value of 
 gold, or to raise it higher. When the restriction on cash payments 
 at the Bank of England took place in 1797, it was generally and confi- 
 dently predicted that the value of her notes would immediately fall : 
 but their employment in the payment of dividends and of the pub- 
 lic taxes really made them, in some most important respects, a 
 species of legal tender ; and to the surprise both of the friends and 
 opposers of the restriction, they continued for three years to bear a 
 small premium over gold ; and their depreciation, which began in 
 1800, was entirely owing to the greatly increased quantities that 
 were then thrown upon the market." I pause here a moment to 
 observe that a paper issued by Government, or by a board under 
 the orders of Government, is, in the opinion of all economists, the 
 only true circulation. The writer thus proceeds: " The obligation 
 to pay in bullion compels attention to be paid to principles that 
 might otherwise be contemned ; but that is all. And hence it follows 
 that if sufficient security could be obtained, that the power to issue 
 inconvertible paper would not be abused, and that its amount would 
 be enlarged and diminished so as to preserve its value on a par with
 
 PUBLIC DINNER TO THE ATTORNEY-GENERAL AT GRAHAM S TOWN. IV 
 
 gold. The latter might be entirely dispensed with for all pecuniary 
 purposes, except as a standard, though it might still be expedient 
 to us-? a subsidiary silver and copper currency, as at present, for small 
 payments." 
 
 Mr. EBDEN. The " standard " referred to there is gold ? 
 
 ATTORNEY-GENERAL. Clearly. 
 
 PUBLIC DINNER TO THE ATTORNEY- 
 GENERAL AT GRAHAM'S TOWN. 
 
 On the 24th of October, 1840, a public dinner at Watson's Hotel 
 was given by the inhabitants of Graham's Town to the Honourable 
 the Attorney-General, on the occasion of this his first visit to the 
 Frontier Districts. About seventy persons sat down, amongst whom 
 were the Chief Justice, Sir John Wylde, the members of the Bar 
 on circuit, the Resident Magistrate of Graham's Town, Col 
 Somerset, Major Lehvyn, R.A., Major Burnic, gist Regt., Major 
 O'Reilly, Asst. Com. Gen. Sanford, and several other Military 
 Officers. 
 
 Dr. Atherstone, sen., discharged with great credit the duties or 
 Chairman, and Messrs. G. Jarvis and J. D. Norden those of croupiers^ 
 In proposing the toast of the evening, the Chairman, Dr. 
 Atherstone, introduced it by claiming the indulgence of the meeting, 
 for that after the eloquent observations which had just been made by 
 Sir John Wylde, in reference to their distinguished guest, he felt most 
 deeply his own inadequacy to do justice to the subject. He had 
 powerfully forced upon his mind the truth of a remark which he had 
 heard, that there are times when every man finds his nerves unstrung* 
 and when all dependence upon himself was, as it were, broken 
 down. That feeling he felt acutely at that moment. When called 
 upon to take the chair he then filled, he felt proud, as he was sure 
 he ought to feel, of the distinction, but then that pride had be- 
 clouded his judgment, and, for the moment at least, hid from him 
 his own inefficiency to discharge the duties of the distinguished 
 position in which their kindness had placed him. The task which
 
 Ivi PUBLIC DINNER TO THE ATTORNEY-GENEF.AL AT GRAHAM'S TOWN. 
 
 he then had to perform was no ordinary, though a most delightful 
 one, namely, to express in suitable terms the high regard and 
 sincere esteem which the inhabitants of Graham's Town entertain 
 f)r him whom he was about to name. That task he felt to be 
 difficult so as to ensure the approval of a large assembly like the 
 one before him, composed of those, who, John Bull like, would 
 expect him to do it in the best manner, and to state bluntly the 
 naked truth, which was, that throughout that large and populous 
 town, there was but one voice heard with regaid to that distinguished 
 individual ; one universal acclaim, the reverberations of which he 
 trusted would reach the most distant corner of the Colony, unti] 
 ere long it sounded upon the ears of those whom he loved at 
 home. His honourable and learned friend would, he hoped, 
 acquit him of all intention to offend by any laudatory observations 
 which he might offer ; but they stood in his brief, and duty to his 
 clients demanded from him the uncompromising fulfilment of hi s 
 instructions. What should he say then ? That he would carry 
 with him from Graham's Town the warm attachment of the in- 
 habitants, and their highest respect for that independency which 
 had invariably marked his public conduct in that Colony. He pro- 
 posed t:.c health of the Honourable W. Porter, Attorrey-General. 
 
 Air : St. Patrick's Day in the morning. 
 
 Mr PORTER then rose, and in a speech of great beauty and power 
 returned thanks. He commenced by expressing an anxious wish 
 that the exhilarating sounds of his national music might excite 
 corresponding emotions in his own mind. For he was so overpowered 
 by the kind and flattering manner in which he had been greeted 
 that he was quite at a loss to express what he felt, and what he 
 desired to convey to them. He remembered, however, an observa- 
 tion of cne who, when he arose to address an audience, said that he 
 stood up to think audibly ; he in the same manner did notpresenthim 
 self to make a speech, but simply to give utterance to his thoughts, 
 to say what was then floating in his mind, and to thank them from 
 the bottom of his heart for that warm and cordial reception with 
 which they had favoured him. He should bespeak their indulgence 
 for the dcsultoriness of his remarks, for to make an afcer-dianer 
 speech was of all undertakings the most impracticable. To square
 
 PUBLIC DINNER TO THE ATTORNEY GENERAL AT GRAHAM ? S TOWN. Ivii 
 
 the circle, to invent perpetual motion, would be a matter of less 
 difficulty, for so perfectly intangible was it that it reminded him of 
 the ingenious American who said that " he had got the small end of 
 nothing wittled down to a point." On one previous occasion 
 he had been under the same circumstances in which he then 
 found himself. On that occasion the members of the Drofessiou 
 to which he belonged honoured him with a public entertainment, 
 and he was called upon to address them at that time. 
 He was on the eve of weighing his anchor, and adventuring on an 
 unknown sea. He had many ties of kindred and country to bind 
 him to his native shore, but there were those who told him that in 
 Africa, at a distance of more than 5,000 miles, there were British 
 hearts to respond in unison with his own, and British tongues 
 to bid him welcome. But the half only had been told him, 
 for had he been informed that he should have met with 
 the reception of that evening he should have considered it 
 the wildest dream of the warmest and most extravagant 
 fancy. From his first landing in Table Bay, just thirteen 
 months ago, to the present moment, he had met with nothing but 
 invariable kindness. This had been the case especially in the 
 members of the Bar, among whom, perhaps, the absence of that 
 cordiality might have been expected. Most of them were his 
 seniors in years, many superiors in experience and knowledge of 
 civil law, and it would not thtrefore have been unreasonable had 
 he, who had been put as it were over their heads, been met 
 with some degree of coolness. Instead of this he had been received 
 by them with that generous frankness the recollection of which 
 would ever be to him a source of high gratification. The kind 
 attention which had been shown him by the Bench was no less 
 conspicuous. And to his other obligations he had to add the Ihtter- 
 ing terms in which their nistinguished guest, Sir John Wyldc, 
 had that evening been pleased to speak of him. It would ill be- 
 come him, nor was it necessary for him to state his high respect 
 for that learned Judge. He remembered an anecdote of the great 
 Dr. Johnson, which was apposite to the circumstances in which 
 he then found himself. He (Dr. Johnson) was in the Royal 
 Library, when his Majesty King George the Third entered the
 
 Iviii PUBLIC DINNER TO THE ATTORNEY-GENERAL ATGRAHAVl's TOWN. 
 
 room, and engaged him in conversation. That monarch compli- 
 mented the Doctor very highly on his literary productions, and 
 expressed a wish that he might be spared to continue them. And 
 what reply, said the person to whom the relation was made, did 
 you make to this ? " Reply, Sir," said Dr. Johnson, " I said nothing ; . 
 it was not for me to bandy compliments with my Sovereign " He 
 (the Attorney-General) felt the more grateful for the consideration 
 with which he had been treated, because he was so well aware 
 of the great difficulties of the office he had the honour to hold, and 
 of his own inadequacy to discharge fully its duties. He might be 
 allowed to magnify his office. It was one of deep responsibility j 
 but whatever m'.ght be his deficiencies he could with confidence 
 say that he brought thereto that inflexible independence of mind 
 which nothing could subdue, he brought to it a most unspeakable 
 hatred of oppression of every kind and a most anxious 
 desire to discharge its duties so as to advance substantially the 
 public interests. It was related of Mahomet, whom, notwith- 
 standing the expression of many fine sentiments, he 
 must ever consider an impostor, that on a certain occasion 
 he found two sparrows contending for a single grain of corn ; this 
 dispute he endeavoured to settle, and was upbraided by his wife 
 for thus wasting his time in what appeared to be so frivolous an 
 employment. " Woman," said the stern philosopher, " in that dis- 
 pute were involved the immutable principles of justice, and nothing 
 can be small or frivolous, or unworthy the attention of the universe, 
 which goes to preserve them inviolable." He was no less 
 sensible of his responsibility as a member of the Legislative Council, 
 and it was that which had brought him amongst them. In making 
 the circuit he could assure them he was not a Dr. Syntax in search 
 of the picturesque. He was convinced that no member of the 
 Legislature could efficiently discharge his duties unless he knew 
 something of the country and its inhabitants. He was desirous ta 
 see and hear for himself, and though a wan t of acquaintance with 
 the Dutch language had been a sad drawback, yet he trusted that in 
 the course of his journey he had collected that information } 
 which, in due time, would be turned to good account, and be 
 made of benefit to the community. It was his anxious desire to
 
 PUBLIC DINNER TO THE ATTORNEY-GENERAL AT GRAHAM'S TOWN. llX 
 
 promote amongst all a spirit of unanimity, convinced as he was 
 that one drop of the milk of human kindness was worth more than 
 all the waters of bitterness that had ever flowed since the world 
 was formed, and he would say, therefore, in a voice to be heard 
 throughout the Colony : perish party, but live philanthropy ! He 
 should avoid as far as possible touching upon politics, but still there 
 were one or two points to which it seemed desirable that he should 
 allude. He had seen in the course of his journey the serious losses 
 to which the farmer was subject by those cattle thefts which were 
 of such frequent occurrence; he saw that he could not 
 obtain redress with that facility which he considered ought to be 
 afforded him ; that he had first to go to a Magistrate at a 
 considerable distance, and afterwards to attend at the Circuit Court 
 at the loss of considerable time, during which his family were left 
 unprotected. He was not prepared to say what remedy should be 
 applied to that evil, but he was deeply impressed with the necessity 
 that it was an evil of such a character as demanded the adoption of 
 a remedial measure, [t had occurred to him that the most practi- 
 cable means would be the extension of the jurisdiction of the power 
 of the Magistrate, even though it were to militate in some decree 
 against that great bulwark of our constitution, trial by jury. It might 
 be necessary also to augment the number of Magistrates ; but without 
 doing more than merely referring to these points, as ideas which 
 had occurred to his mind, he could assure them that the whole 
 subject should engage his most earnest attention, with the view of 
 submitting to the Legislative Council such a measure as would meet 
 the difficulty. There were also, he was aware, difficulties connected 
 with the border system which demanded attention ; he was not 
 prepared to state the nature of those difficulties, still less to point to 
 the remedy, but if the complaints he had heard were all founded, and 
 surely that could be ascertained, if grievances did really exist, he for 
 his part knew of no earthly reason why they should not be redressed. 
 There was one other point to which he would advert, namely, the 
 inconvenience, expense, and trouble to which the inhabitants of 
 the country districts were subject for want of local land registries- 
 He saw no reason why this should not be obviated ; he thought 
 that every district might have its registry which makes returns to
 
 x PUBLIC DINNER. TO THE ATTORNEY-GENERAL AT GRAHAM^ TOWN. 
 
 the general registry at Cape Town ; he thought that a measure of 
 this kind might be adopted with great advantage to the public, and 
 without in any way weakening that security which it was so 
 desirable to continue unimpaired in reference to lar.ded 
 property. Having adverted to those few points, as being 
 the most prominent to his mind, he should pass to matter of a 
 more agreeable character. It was true, as Sir John Wylde had 
 info.mcd them, that he had been highly delighted on entering that 
 district. He (Sir John Wylde) had bid him prepare for an 
 agreeable surprise, but he found that the half had not been told 
 him. He had been charmed with the beauty of thut district, but 
 more so with that intelligence which was displayed everywhere 
 around him. He had almost forgotten he was in Africa. In that 
 town he discovired, in the intelligence, activity, and cnterpritc of 
 its inhabitants, the germ of all those principles which were 
 calculated to raise that fine Colony to that position which 
 it ought unquestionably to fill. When he beheld so many 
 young men before him, he considered that he viewed in 
 them the hope of the Colony. It was gratifying to reflect that 
 many in that district had raised themselves, by the exertion of 
 honest industry and enterprise, to considerable opulence. It was 
 most pleasing to see the style of their buildings, and to hear the 
 ii.ccssant din of active trade ana commerce ; it was refreshing to 
 discover that independence of mind that could think for itself 
 that could form opinions, and that did not hesitate to express them. 
 Sure he was that by the cultivation of concord and unanimity they 
 might be not only a thriving but happy people. Their worthy 
 Chairman (Dr. Atherstone) might then stand a chance of being 
 without a patient, and as for his own profession, why he doubted 
 whether even his friends before him would have for him a single 
 brief. Coming amongst them, as he then had, a stranger, he felt 
 inexpressibly flattered by the kind reception with which he had 
 been greeted, and the honour which had been done him that 
 evening, and which while memory lasted would never be effaced. 
 He would say co them, in the language of Scripture, " Peace be 
 within thy walls, and prosperity within thy border," but in refe- 
 rence to himself language was too poor to convey to them what
 
 ON TAXATION. 
 
 he felt ; he should therefore not make the unavailing attempt,. 
 but sit down, saying from the bottom of his heart, " Gentlemen, 
 I thank you." 
 
 ON TAXATION. 
 
 [Legislative Council, Wednesday, December ^nd, \ 840.] 
 
 The ATTORNEY-GEVERAL said, after the full discussion whicfp 
 this subject had received from the Secretary to Government, from 
 his hon. and learned friend opposite, and from his two hon. friends- 
 near him, it would, he felt, be perfectly unwarrantable were he to 
 occupy the attention of the Committee for more than a very few 
 minutes. It still, however, appeared to him that some important 
 matters had been mentioned which had not been followed out to 
 their legitimate consequences ; and that some matters, no less im- 
 portant, had not been mentioned at all ; and he should therefore re_ 
 quest the attention of the Committee while he endeavoured to 
 discuss, in as orderly and consecutive a manner as he could, the 
 several matters to which he now referred. Before saying anything- 
 with respect to the main question now before them, namely, what 
 ought they to do or to determine, placed as thy now were, he 
 would pause a moment to see clearly what their present position^ 
 was, and how it was they came to occupy it. Historically thcru 
 (he said historically, because it referred to the transactions of a by- 
 gone period, and transactions which had taken place a considerable 
 time before his arrival in the Colony), it appeared that in the yea r 
 1837 a Committee of the Legislative Council had furnished a report 
 showing clearly and conclusively the inexpediency of certain taxc s . 
 theretofore existing in the Colony, and strongly recommending the 
 abolition of the obnoxious imposts. In this able and elaborate per- 
 formance it was convincingly demonstrated that some of the taxes 
 which it was purposed to repeal were almost unproductive, that, 
 those from which the greatest return might have been expected 
 were so veiy inquisitorial in principle that they were never properly
 
 Ixii ON T TAXATION. 
 
 enforced, but had become, on the contrary, the least inquisitorial in 
 practice that could possibly be imagined ; so that we implicitly 
 relied oh the honesty and candour of individuals for the due pro- 
 tection of the public interest in circumstances where to rely upon 
 honesly and candour was the merest humbug and delusion ; and 
 that, upon the whole, it would be difficult to devise a system of 
 taxation which should be fraught with more evils and fewer benefits 
 than that of which the abolition was recommended. He (the 
 (Attorney-General) believed that no man in the Council, or in the 
 Colony, disputed either the facts or the reasonings contained in this 
 report, or denied the justice of the sentence of condemnation 
 which the Committee had pronounced upon the taxes now alluded 
 to. But the report did not stop with the sentence of condemna- 
 tion, nor could it. It was clear that the exigencies of the public 
 service were not to be lost sight of. It is never enough to show 
 that a tax is inexpedient, it must also be shown that its repeal is 
 practicable. Applying themselves to the essential part of their duty, 
 the Committee of 1837 appeared to have assumed as unquestionable, 
 what, indeed, could not be questioned, that considering the wants 
 of the Colony, and the means of supplying them, these assessed taxes, 
 bad as they were, could not be abolished, except upon the condi- 
 tion that something better were provided. How then was the 
 equivalent to be got ? Why, according to the Committee, by an 
 improvement in the revenue of the Customs, to be derived from an 
 alteration of a two-fold character, first the imposition of specific 
 duties upon certain enumerated articles, and secondly, an increase 
 in the ad -valorem duties previously paid. Well then, such being 
 the proposal made to the Home Government, what has been their 
 answer ? In the first place, a distinct intimation that that proposal 
 in its full extent, without exception or qualification, had been acceded 
 to by the Treasury and the Board of Trade ; an intimation which 
 had gone out far and wide through the Colony, and had diffused 
 the greatest satisfaction amongst all classes ; and in the second place, 
 a subsequent Order in Council, of date loth August, 1840, which, 
 instead of adopting that proposal generally, adopted but a part of it, 
 and while it imposed (\vith some slight modifications) the specific
 
 ON TAXATION. Ixiii 
 
 duties recommended, left the ad valorem duties absolutely un- 
 touched. In this predicament we now stood, and the question was, 
 what ought we to do ? His hon. friend upon the left (Mr. Ebden) 
 advocated what was certainly a very simple course, and what was, 
 if practicable, the very best that could be pursued, namely, to take 
 the .Order in Council as it was and forthwith abolish the assessed 
 taxes ; trusting that, one way or other, there would be no deficiency 
 in the revenue ; or, if any should appear, that we should be able 
 to devise some other way to make it good. Now he (the Attorney- 
 General) did not deny that if the anticipations of his hon. friend 
 could be relied upon, if the Customs' revenue could be safely calcu- 
 lated upon as likely to realize permanently from the present 
 . ad valorem duties, together with the new specific duties, a sufficient 
 equivalent for the taxes sough.t to be abolished, then the Order in 
 Council should be at once called into operation, and the assessed 
 taxes be allowed to pass away amongst the things that were. 
 But he (the Attorney-General) was compelled to believe that upon 
 this, the cardinal point on which the question turned, the anticipation 
 of his hon. friend could not be relied upon. This was a subject upon 
 which it was probable that every gentleman :n the room could form a 
 more accurate opinion than he could. But from all he could learn from 
 mercantile men, and he had endeavoured to obtain information as 
 accurate as possible, he felt himself justified in stating that importation 
 into this Colony had been recently stimulated by accidental circum- 
 stances ; that the stream had overflowed the channels in which it 
 naturally and usually ran, and that the striking diminution which the 
 imports of 1840 exhibited, when compared with those of the three or 
 four preceding years, was indicative of a still further decline which 
 might hereafter be expected. Even, however, if the average of the 
 last five years were taken as a guide, the annual increase in the 
 revenue from the new tariff would very little exceed the amount of 
 the taxes which all were desirous to repeal. But as that average 
 was generally were it not for the dissent of his hon. friend he 
 would almost have said universally supposed to be a delusive 
 guide, he came now to enquire what amount could fairly and 
 reasonably be looked for ? The answer to this question depended
 
 ON TAXATION. 
 
 upon the extent and nature of our imports, and he believed that 
 xvhen in 1837 his hon. friend the collector of the Customs stated to 
 the Committee of that day that the average of the years 1835 and 
 1836 might in his opinion be fairly taken as the probable annual 
 importation of the Colony, he gave what xvas then, and what was 
 still, considered Co- be as high an estimate as any prudent financier 
 could act upoii. Assuming this estimate to be accurate, and he 
 was not aware that it was viewed by the public as erroneous, the 
 annual increase which the new tariff would give would be, accord- 
 ing to the returns now before the Committee, about ^12,000, while 
 the taxes to be repealed amounted to ,15,000. How then were 
 we to proceed ? There was only one other way of making these 
 sums balance each other, and that way had been adverted to by his 
 hon. and learned friend (Mr. Cloetc), but he agreed with his horn, 
 and learned friend that it was a way which they could not hare, 
 and which they ought not to have, the slightest hopes of treading. 
 To look for a reduction in the public expenditure was idle. The 
 truth was, that that expenditure was too little. With emigra- 
 tion to be facilitated, with roads to be rendered passable, with 
 a cry for additional magistrates resounding in every quarter of 
 the Colony, with a number of other matters, which might be readily 
 enumerated, demanding loudly the attention and the aid of 
 Government, we were compelled to treat them all in a spirit 
 of pinching and hunger-bitten economy, under the influence 
 of which the Colony was half starved. A reduction of expenditure 
 then was quite out of the question, and upon the whole, though 
 he quite agreed with his hon. friend (Mr. Ebden) in thinking 
 that they should adopt the new tariff, if they could, though he 
 quite agreed with him in thinking that if the additional experience 
 which he had derived from the three years' delay which had taken 
 place since the proposal of the Legislative Council was first sub 
 mitted to the Home Government a delay, in his opinion, not very 
 creditable to the Home Government, and very injurious to the 
 C olony had proved that more was originally asked than was required, 
 and that were the thing to be done again, the specific doties granted 
 would alone have been demanded, and the ad valorem duties with-
 
 ON TAXATION. 
 
 held would never have been sought, he was yet compelled to come 
 to the conclusion that as the new tariff, if substituted for the old 
 taxes, would in all probability leave a clear deficiency of necessary 
 revenue, it would be in the highest degree dangerous to make that 
 substitution. He would not dogmatically assert that he himself 
 was right and that his hon. friend was wrong. It might be that 
 his hon. friend was not at all too sanguine, and he hoped sincerely 
 that such might turn out to be the case. But revenue was a ticklish 
 thing to meddle with, and wherever a reasonable doubt existed, it 
 was right, he thought, to give the revenue the benefit of that doubt. 
 If his hon. friend should prove to be correct in his estimate of the 
 continued importation into the Colony, it would be very easy to let 
 old taxes go ; but if his hon. friend should prove to be incorrect, it 
 might not be easy to set new ones going. He now came to the 
 real practical point which it was to-day their duty to determine, 
 namely, should the new tariff be acted upon in its present shape ? 
 or should the Home Government be again implored to make the 
 boon complete ? This was a matter of some nicety, and he (the 
 Attorney-General), without giving any positive opinion one way or 
 other, and quite willing to go along with the general feeling of the 
 Committee upon the subject, whatever that might be, would yet in- 
 dicate some of the reasons which might appear to the adoption of 
 each respective course. In favour of the adoption of the 
 new tariff it might be urged that the assessed taxes were upon 
 our own showing very bad ones ; that therefore we should 
 repeal the most obnoxious of them, though we might not 
 be able to repeal them all ; that the celebrated aphorism 
 which assures us that half a loaf is better than no bread, is 
 strictly applicable to this case ; that by putting the Order in Coun- 
 cil into immediate operation no additional expense would be in- 
 curred ; while by abolishing the equivalent amount of the assessed 
 taxes, some expense and more annoyance would be saved, and that 
 our taking this instalment, as now offered, would not preclude us 
 from soliciting the Home Government, if necessary, to carry the plan 
 as originally assented to by themselves completely out. Upon the 
 other hand, against the adoption of this new tariff it might be said 
 
 e
 
 ON TAXATION. 
 
 that a partial repeal of the assessed taxes would be a matter of some 
 difficulty ; that we may entertain reasonable hopes that the Home 
 Government will reconsider the subject, and return to their original 
 opinion if the reasons for it be brought before them in full force ; 
 that this cannot be done if, by apparently diminishing the evil, we 
 diminish at the same time the urgency of its total removal ; that it 
 is dangerous to afford the Home Government an opportunity for say- 
 ing " the thing is working in one way or other, and as we have so 
 many other things to attend to, we may as well let it work on as 
 best it can ;" that the interval which need elapse between the pre- 
 sent time and that of receiving the ultimatum of the other side, is 
 not so long to be of much consequence, and that the better course 
 will therefore be, to tell the Home Government that the good given 
 is useless without the good withheld ; and pray them to accomplish 
 the work so auspiciously commenced. Having made these observa- 
 tions he should now sit down, were it not for a remark of his hon. 
 friend (Mr. Ebden), which he had forgotten to notice in the right 
 place, and on which he wished to say a word. His hon. friend had 
 said that an increase of the ad valorem duties is opposed to sound 
 principles. Now it so happened that his hon. friend and himself 
 both read Adam Smith now and then, and that they seldom if ever 
 differed as to the principles, though they sometimes disagreed as to 
 the application of those principles. But to what sound principle 
 was a reasonable augmentation of ad valorem duties found to be op- 
 posed ? He conceived the rule to be this, that prohibitive or pro- 
 tective duties were invariably impolitic ; but that duties imposed 
 bona fide for the purposes of revenue were not necessarily objec- 
 tionable. Who paid the increased duties ? The same community 
 which must have paid the same amount in some other, and for the 
 most part in some more objectionable shape, if these increased 
 duties had never had existence. If, indeed, a trifling addition of 
 2 per cent, were to turn manufactures of Great Britain out of the 
 colonial markets, if new Birminghams and Manchesters were to 
 spring up under such encouragements, and the artizans of England 
 cease to supply our wants, then indeed the duties would be impoli- 
 tic, and the mother country might complain. But when all such
 
 ON TAXATION. 
 
 expectations are wilder than a dream, and the only extent of the 
 advance demanded will be to raise a revenue for want of which 
 the Colony is languishing, in a manner which no man thinks of, 
 and for the payment of which he does not at the end of the year 
 feel himself one whit the poorer, then he (the Attorney-General) while 
 he admitted that duties, simply as duties, were objectionable, could 
 not at the same time but be strongly of opinion that there were cases 
 in which they might be successfully defended, and that the present 
 was a case of precisely that description. 
 
 ON THE SAME SUBJECT. 
 
 [Legislative Council, Thursday, December \Jth, 1840.] 
 
 The ATTORNEY-GENERAL said he thought there was not, or at 
 least that there ought not, to be any substantial difference of opinion 
 in the Council upon the present question. With the exception 
 perhaps of his hon. friend on the left (Mr. Ebden), and his hon. 
 friend opposite (Mr. Breda), who he considered would very likely, 
 had he been present, have agreed with the majority, every other 
 member then in the room was bound, upon every principle of con- 
 sistency, to affirm by his vote the expediency of preserving for the 
 purposes of general revenue the tithes on grain. (No. no, from Mr- 
 Ross.) His hon. friend said no, but he (the Attorney-General) 
 still considered that the fact was as he had stated it, and he felt 
 that he should easily be able to convince his hon. friend that he 
 was accurate. Before, however, he did this, he wished to say a 
 word on the point of order which had been raised between the hon- 
 Chairman and some other members who had spoken. It appeared 
 to him, he confessed, that it was competent for Mr tbden to 
 propose such a resolution as he had submitted to the Council. What 
 were the facts ? Certain resolutions connected with the recent Order 
 in Council, and the new duties therein contained, had been passed 
 
 e z
 
 ON TAXATION. 
 
 at their last meeting, and transmitted to the Governor. His Excel- 
 lency, in the exercise of what he (the Attorney-General) believed 
 to be a sound discretion, had come to the determination of pursuing 
 a course different from that of which the Council had recommended 
 the adoption. The Council were now called together in order that 
 His Excellency'? intention to deviate from the time of action 
 proposed by them should be formally communicated. Under these 
 circumstances he (the Attorney-General) considered that the whole 
 subject, as it had been originally laid before them, was now a second 
 time under discussion ; that the new aspect which it had assumed 
 might reasonably demand a new expression of opinion ; and that if 
 there was anything which the Council wished to say in order to keep 
 themselves right with the public, or to make the expression of their 
 sentiments full and complete, they had an indisputable right to say 
 it. Turning now to the more immediate question, and to his hon. 
 friend (Mr. ROFS), whom he had promised to answer, and who still 
 looked remarkably inquisitive, he repeated that, in his opinion, every 
 member who had concurred with the majority at the former meeting 
 was. called upon, by a regard to consistency, to oppose the repeal 
 of the tithes on grain. The majority at the former meeting had 
 affirmed the proposition that a simple substitution of the new tariff 
 for the old assessed taxes would leave a deficient revenue. So 
 strong was this impression that they actually voted against putting 
 the tariff in opera ion at all. He (the Attorney-General) had cer- 
 tainly been surprised into that vote, for in stating the reasons for ard 
 against the immediate adoption of the new duties, he felt in his 
 own mind that the most persuasive were in favour of the new mea- 
 sure, and he consequently conceived that such would be the feel- 
 ing of the Council generally. However, he certainly had concurred 
 in the vote ; and in now expressing his dissent from it, he was liable 
 perhaps to the charge of vac llation. But let that be as it might, 
 the Governor, by virtue of the power entrusted to him, had ordered 
 the instant promulgation of the tariff, and could those who were 
 then inclined to cushion it on the very ground of its insufficiency to 
 supply the place of all the assessed taxes, could they, he asked, con- 
 sistently with their former vote, now recommend that all those
 
 ON TAXATION. 
 
 assessed taxes should forthwith be repealed ? If a the last meeting 
 they had done what he thought they should have done, namely, 
 taken what they had got, and kept crying for the rest, would any- 
 one have maintained that, pending the application to the Horn 6 
 Government, the whole of the assessed taxes should at once be 
 swept away ? They then had voted that there would be a deficiency, 
 and were they now to vote so that that deficiency should be ren- 
 dered greater than it otherwise need be ? He thought not ; and he 
 therefore thought it would contradict the principle of their former 
 resolutions to affirm that which was now proposed for their adop- 
 tion. He fully admitted that his hon. friend who proposed that 
 resolution (Mr. Ebden) was perfectly consistent, but he could not 
 say the same of any other member who gave it his support. In the 
 remarks which he had maiJe he had taken it for granted that the 
 only point which they had to determine was, whether or not any 
 one of the assessed taxes should be preserved. If the Council should 
 be of opinion that the repeal could not be total, that some one 
 must be continued, and that the only thing they had to do was to 
 choose the one best worth preserving, he believed that the tithe 
 on grain would at once commend itself as in every way the most 
 expedient. It was collected by the market master, and collected 
 without trouble or expense. The capitation tax which had been 
 spoken of by his hon. and learned friend (Mr. Cloete) was per- 
 haps, of all the assessed taxes, that which cost the most in 
 proportion to which it produced. It was urged, however, that the 
 tithes on grain were oppressive upon the agriculturist, and that we 
 should consider the circumstances of the tax-payer as well as the 
 convenience of the tax-collector. To this proposition he (the 
 Attorney-General) cordially assented. He would be sorry to be, 
 or to appear, indifferent to the interests of agriculture, or to any 
 hardships of which those engaged in it could reasonably complain. 
 But had the hardships in this case been proved ? It was said that 
 the farmer would be treated with injustice, because while, in com- 
 mon with other classes, he paid his share of the increased duties, 
 he would now be called upon, over and above this, to continue the 
 payment of the tithes on grain. This argument was, however,
 
 1XX ON TAXATION. 
 
 completely suicidal. The moment you prove that the farmer pays 
 the Custom duties, you prove that he does not pay the tithes on 
 grain. If the farmer pays the Custom duties, then it follows that 
 it is the consumer and not the merchant who pays that tax, and if 
 it be the consumer and not the merchant who pays that tax, then it 
 is the consumer and not the farmer who pays the other one which 
 they were now considering ; the principle in the one case is identi- 
 cal with the principle in the other, and the advocate of the 
 agriculturist cannot be allowed to blow both hot and cold. Trusting 
 that the allegation of hardship to the farming interest had now been 
 sufficiently answered, he would next observe, that he had great 
 doubts whether the humble remonstrance which the Colonial 
 Government would probably make to the Government at home, 
 would not be rather strengthened than weakened by continuing a 
 part of the as&essed taxes. If they abolished or suspended the whole 
 of those taxes, then it might be said, " there is no practical grievance 
 now in existence ; there is therefore no hurry in the case ; we shall 
 await the result of the tariff, as now in operation, and see how the 
 revenue stands the test, before we do anything upon the subject." 
 If, on the other hand, we can say : " For what you have given us 
 we are very grateful, but unfortunately, you have not given us 
 enough ; to avert the evils of a deficient revenue we have been 
 obliged to continue one of the taxes of which the inexpediency has 
 been already demonstrated to your satisfaction ; we beg you to 
 make that continuance a temporary evil by making such alteration 
 in the tariff as can enable us to do away with it ;" in this point of 
 view it was not, perhaps, unreasonable to suppose that the hands of 
 the Colonial Government might be strengthened, by resorting to a 
 course of proceeding which was at the same time imperatively de- 
 manded by the financial necessities of the Colony. For these 
 reasons because a certain revenue must be raised, because the new 
 tariff could not raise it, because they must select some one of the 
 obnoxious taxes, and because the tithe on grain was the fittest 
 which they could select it apptared to him that there could be no 
 difficulty upon the part of the Council in coming to a right determi- 
 nation on the question then before them.
 
 1841. 
 
 0>T THE 
 
 LAW OF DEBTOR AND CREDITOR. 
 
 [Legislative Council, March 22, 1841.] 
 
 The ATTORNEY-GENERAL said : 
 
 In rising to introduce the motion of which I have given notice, 
 I feel myself under the necessity a necessity much more impera- 
 tive than any which I have ever experienced upon any similar 
 occasion of bespeaking the kind indulgence of your Excellency 
 and the Council. I shall be obliged to refer to topics of a very 
 dry and uninteresting, not to say of an absolutely technical and 
 repulsive character. My way will lie through a bare and sterile 
 region, nor shall I be able to cull, I fear, one single flower. In 
 this utter destitution of everything that might give life or anima- 
 tion to what I might have to say, I should, perhaps, have despaired 
 of the attention of those whom I address, were it not that the great 
 and acknowledged importance of the subjects which I shall have to 
 handle subjects which, in one shape or other, affect the interest 
 of almost every man in the entire colony must forcibly arrest the 
 minds of all who give to such considerations their due weight, and 
 obtain from this Council that careful and deliberate investigation 
 of the points in question which matters of such moment are 
 entitled to receive. I should, without further preface, enter, at 
 once, upon the task which I have assigned myself, but that a few 
 words of explanation respecting the manner in which I have 
 deemed it best to bring the subject forward, appear to be 
 demanded. What I am doing is, as your Excellency is 
 
 B
 
 ON THE LAW OF 
 
 aware, wholly unconnected with the Executive Government. 
 The subject of this motion is one with which the Executive 
 Government, as such, has, in my mind, no legitimate concern. I, 
 therefore, have not sought to secure the support of the 
 official, any more than of the unofficial, members of Council, 
 and have thought it better to leave the matter simply to its own 
 merits, believing that the ends in view will be more efficiently 
 served by coming to the consideration of the question wholly and 
 entirely unbiassed, free from even that degree of prejudice which 
 might arise from the slightest previous concert or agreement. 
 Another matter needs a moment's notice. I move, as your 
 Excellency will observe, for a Committee of Inquiry. It would, 
 no doubt, have been competent for me to have pursued another 
 course. I might have submitted to the Council one or more Bills 
 embodying such alterations in the law as appeared to me to be 
 required. But when I reflected upon the delicacy and difficulty 
 which surround all such matters as we have now in hand, rfie 
 impolicy, not to say, impossibility, of legislating without the 
 general concurrence of the well-informed part of the community ; 
 the cautious and conservative spirit in which all laws and customs 
 of long standing ought invariably to be approached ; the advantage 
 of feeling the public pulse before we committed ourselves to any 
 particular amendments, and the expediency of collecting as 
 much information as might be within our reach, before sitting 
 down to legislate at all, I came to the conclusion that to move 
 for a Committee was the safest line of conduct I could follow. 
 Another consideration had its weight with me. I was sensible of 
 the parental partiality which we naturally feel for our own 
 offspring ; and I wished to keep myself clear, in this instance, 
 from the operation of that principle. Having no earthly in- 
 terest in the matter except to provide the public with the 
 best system in my power, I could not, in any case, be wedded 
 to any favourite notions. I may therefore hope that, under 
 all circumstances, I should have been ready to abandon 
 any idea which might have been proved to be erroneous. 
 But still, in order to exclude effectually all undue bias, to
 
 DEBTOR AND CREDITOR. 
 
 prevent the possibility of even unconscious prepossession, I was led 
 to give a preference to a course of proceeding which would 
 allow me, undisturbed, to do that which I have alone the 
 slightest wish to do, namely, to discuss the subjects for 
 consideration with perfect freedom, and to come to that 
 conclusion to which the strongest reasons point. I now proceed 
 to discharge my more immediate duty. It is to explain the 
 objects which I have particularly in view in submitting the present 
 motion. It is not desirable that a Committee should be appointed 
 without the purposes which it is intended to accomplish being, at 
 least in some degree, understood. In what I am going to say I 
 must mention many matters very familiar to every lawyer. I shall 
 feel it necessary to refer to topics of which the introduction would 
 be absurd were the Council made up of members like my honour- 
 able and learned friend opposite (Mr. Adv. Cloete). But I am not 
 seeking to enlighten my honourable and learned friend, from whom 
 (sitting, as I do, at the feet of Gamaliel) I am always ready to 
 receive instruction in Dutch Law. I wish to speak to the Council 
 generally, and through them to the public generally, and 
 by that means to bring, if possible, the clear common 
 sense of the intelligent classes to bear upon some questions of great 
 importance ; but questions, at the same time, more talked about 
 than understood. If I can make myself intelligible, as I hope to 
 do while favoured with the kind attention of the Council, I shall 
 have attained the principal end in view ; for perspicuity is, per- 
 haps, the only, and is certainly the chiefest, ornament of which 
 such subjects are susceptible ; and if, from my limited acquain- 
 tance with the civil law, [ should chance to err in any of my state- 
 ments, both the Council and myself may have perfect confidence 
 that the accurate and extensive knowledge of my honourable and 
 learned friend (Mr. Cloete) will correct my sins of ignorance. 
 The motion refers to the system of tacit hypothecations ; to the 
 system of general bonds ; and to the system of Insolvent Law. I 
 shall make some general remarks upon each of these topics in their 
 order. First, then, we shall take the case of tacit hypothecations. 
 The name hypothecation is not a common one to English cars ; 
 
 B 2
 
 ON THE LAW OF 
 
 but the corresponding term mortgage is sufficiently familiar. The 
 Roman-Dutch Law recognizes three sorts of mortgages the 
 conventional, the judicial, and the tacit. The conventional mort- 
 gage, as its name denotes, is a right in or over property, created by 
 the act or agreement of the parties. The judicial mortgage 
 (as may, in like manner, be inferred from its title), is a right in 
 or over property, created by the execution of legal process. It is 
 not proposed to embrace in the intended inquiry, the conventional 
 mortgage (except so far as a single species of it, the general bond, 
 is concerned), nor to embrace the judicial mortgage at all. The 
 conventional mortgage, generally, is a system of security practised 
 in all societies, and known to every system of jurisprudence. In 
 this colony, moreover, it has advantages in the way of publicity 
 which I shall hereafter have occasion to allude to, and commend. 
 The judicial hypothec, or Pretorian mortgage, is equally unobjec- 
 tionable. Indeed I am not so bigoted in favour of that code of 
 law with which I happen to be best acquainted, as not to prefer 
 the judicial hypothec of the Dutch Law to the judicial hypothec of 
 the English Law. By the Dutch Law the hypothec or lien does not 
 attach upon any kind of property, movable or immovable, until 
 the property, whatever it is, has been actually taken in execution. 
 By the English Law a distinction is drawn, in this respect, between 
 real property and personal (terms which, owing chiefly to some 
 differences in tenure, are not precisely equivalent to the immov- 
 able and the movable property of the Dutch Law, but which are 
 very nearly so), and while personal or movable property is not 
 affected by a judgment until the writ of execution has been put 
 into the sheriff's hands, the real or immovable property of a 
 debtor, on the other hand, is bound by the judgment from the 
 date on which that judgment is entered up, so that purchasers, 
 even for valuable consideration, and without any express notice 
 of this lien or incumbrance, take the property subject to the 
 obligation of satisfying it in full, or, at least, as far as the value of 
 the purchased lands extends. It is true that facilities are afforded 
 by the English Law for allowing an intended purchaser to search 
 for judgments, so as to protect himself, but since a judgment not
 
 DEBTOR AND CREDITOR. 
 
 duly registered will still bind a purchaser who has notice of its 
 existence, and since that notice may be constructive or implied, I 
 confess that I regard the rule of the Dutch Law as much more 
 simple, safe, and satisfactory. With the judicial hypothec estab- 
 lished by that law, therefore, there can be no need to interfere. I 
 now come to the third class of mortgages, on which, generally 
 speaking, I am unable to bestow the same measure of commenda 
 tion. The nature of the tacit mortgage, like that of the other two 
 kinds or classes, may be inferred from its denomination. It is not 
 constituted by any act or agreement of parties. It is not con- 
 stituted by any kind of legal process. It is constituted merely by 
 an actual or supposed peculiarity in the circumstances of certain 
 debtors and certain creditors, by means of which the latter 
 become, without more ado, invested with all the rights and 
 privileges of conventional mortgages or execution creditors. 
 It is a silent security, arising simply from operation of law. The 
 creditors who are thus favoured at the expense of creditors in 
 general form a long list. Without mentioning any of that class of 
 cases commonly called " Liens," it may be observed of the tacit 
 mortgage that the Treasury has it over the property of those who 
 collect its taxes ; churches and other public institutions have it 
 over the property of persons entrusted with the management of 
 their revenues ; the party whose money has been given for the 
 repair of property, has it over the property repaired ; the party 
 who has only a limited interest in an estate, has it over that estate 
 for any amount which may have been expended in its preservation ; 
 the joint owner of undivided property has it for a due proportion 
 of the money laid out by him upon that property for the protection 
 of his own interest, but to the benefit of his co-tenant ; the 
 landlord has it over property found in the demised premises, for 
 the security of his rent ; and there are other instances of a like 
 nature. It would not be difficult, I think, to go through these 
 cases, and to show that they tend in general to do more harm than 
 good. But in practice most of them occur but rarely ; and they 
 may all be left at present without any particular discussion. This 
 is not the case with the species which I have now to mention.
 
 ON THE LAW OF 
 
 Minors and pupils, as also insane, prodigal, and interdicted persons, 
 have this tacit hypothec over all the property movable and im- 
 movable of their tutors, curators, and guardians, as a security for 
 the correctness of their accounts, and the regularity of their pay- 
 ments. It will be obvious that, as applied to this class of cases, the 
 rule just stated must be in continual operation ; and I beg the par- 
 ticular attention of your Excellency and the Council, whilst I point 
 out the manner in which it necessarily works. I confine myself to 
 the instance of a minor and his tutor. The hypothec commences 
 from the date of the appointment of the tutor, and only terminates 
 when he has paid his balance. This may embrace a vast extent of 
 time. If the hypothec began with the first act of mal-administration, 
 and ended with the guardianship, or even with the rendering of the 
 tutor's accounts, the apparent hardship might be less. But if a 
 tutor who has duly discharged his trust for, it may be, twenty years, 
 shall, at the expiration of that period, get for the first time into 
 arrear, the tacit mortgage is, at once, thrown back over the whole 
 intervening period, and his property is in the same state as if he 
 had made an actual mortgage of it, on the day of his appointment. 
 And what is the effect of this ? Happily not quite so mischievous 
 by the Roman-Dutch Law as it was by the old Roman Law, from 
 which the principle is taken. But still, every dealing of the tutor 
 with (not merely the minor's,, but any of his own immovable 
 property, entered into during any part of the time embraced 
 between his appointment and the payment of his balance, is at 
 once avoided in favour of the minor creditor. If it have been 
 sold for valuable consideration, the purchaser must either pay a 
 debt of which he knew nothing, or give up his purchase. If it 
 have been made the subject of a conventional mortgage, a similar 
 consequence ensues. The prior tacit hypothec over-rides all 
 subsequent transactions ; and that tacit hypothec, as I have 
 already explained, may have its priority established by matter 
 ex post facto, I have said that the rule of the Roman-Dutch is not 
 so mischievous as that of the old Roman Law. By the latter 
 movables were bound equally with immovables. At Rome, 
 the minor could follow any ordinary chattel capable of being
 
 DEBTOR AND CREDITOR. 
 
 identified and traced ; nor was he to be stopped by any number of 
 bona fide purchases. A system such as this could never originate 
 or be suffered to exist in any country where the interests of 
 commerce called for the application of the principle, one, for the 
 most part both equitable and expedient, that in movables 
 possession should be taken as a sufficient proof of property. Accord- 
 ingly, the text of the Civil Law soon received a memorable 
 limitation from the Jurists of the Dutch School, and the maxim 
 " mobilia non babent sequelam" having laid down as a rule of 
 general application that movables could not be followed 
 into the hands of third parties, the law freed personal property 
 from the fetter of the tacit hypothec so far as it might have 
 bound it in the hands of strangers, and confined its operation 
 to the case in which such property still remained in the 
 possession of the debtor. Upon the whole, then, the effect 
 of the tacit hypothec by the Roman Dutch Law is to bind 
 immovable property under all circumstances, and to bind 
 movable property which, not having been bona fide parted 
 with, is still vested in the debtor himself. Now the question is 
 whether, having gone one step beyond the Roman Law, the 
 Dutch Law should not go another ? Having gone so far, are 
 there cogent reasons for declaring that we should go no farther ? 
 This is the problem to be solved, and in order to assist, in some 
 degree, in the solution of it, I shall now advert briefly to some 
 general considerations relative to the nature of hypothecation, 
 which seem to me to indicate the line of legislation which public 
 policy might call upon us to adopt. 
 
 Mortgage is such an obvious mode of obtaining either money or 
 anything else which men require, that it must have been had 
 recourse to early. In fact, it is as natural as barter. The conve- 
 nience of society having established the general principle, it 
 must soon be found that that general principle would, gradually, 
 assume two distinct forms. The distinction between these forms 
 is very important. In one case there is actual possession given by 
 the debtor to the creditor. This is the pawn or pledge of 
 England ; the pignus of the Roman Law. In the other case the
 
 ON THE LAW OF 
 
 debtor still retains the thing intended for security, and all which 
 the creditor has is a certain right to or over that thing. This is 
 the mortgage of England, the hypotheca of the Roman Law. 
 Now I should be disposed to say that, of those two cases, the 
 pledge was to be favoured, and the mortgage net. In every 
 variety of the first (which is obviously the primitive form of all 
 hypothecation), the creditor holds the property on which he has 
 made his advances ; the former ownership is visibly divested, and 
 no injurious consequences can reasonably be apprehended. To a 
 certain kind of it (for such substantially it is) I mean the lien 
 of English jurisprudence (the "retention" of the laws of Scotland 
 and of Holland) a species of security in very common use, the 
 leaning of the Courts in the Mother Country has not been adverse, 
 but the contrary. If the shipmaster retain the goods which he 
 has carried ; the bleacher the linen which he has bleached ; the 
 tailor the coat which he has made ; the factor the merchandize 
 on which he has made advances ; till, in each of these cases, all 
 just charges have been paid, we see nothing but an equitable 
 principle at work which, doing justice to individuals, does no 
 injustice to the public. But with hypothecation, as that term has 
 been explained, we must be more cautious. There is here no 
 visible change of interest or ownership. The debtor's apparent 
 means are not diminished. False colours are hung out. Still, 
 however, those things must be, and, that being the case, the duty 
 of the legislator would seem to be confined to the enforcement of 
 these two rules, first make public all your hypothecations, and 
 secondly, have as few of them as men's necessities will permit. 
 In reference to the first rule, I have to observe that the judicial 
 hypothec is, from its very nature, public and notorious. And even 
 with respect to conventional mortgages, as far as the question of 
 publicity is concerned, I cheerfully bestow upon the principle 
 of the Dutch Law my promised commendation. By that law, a 
 formal act to be registered by some public Board or Office has 
 long been essential to the validity of every mortgage ; 
 or, at least, every mortgage of immovable property. I presume 
 that in Holland, previously to the introduction of the Code
 
 DEBTOR AND CREDITOR. 
 
 Napoleon in 1812, a conventional mortgage confined in terms to 
 movable property, might have been created by a deed not regis- 
 tered in the manner now alluded to. But it is considered that the 
 instructions of Commissioner General De Mist have rendered 
 registration indispensable to every instrument by which a prefer- 
 ence either of movable or immovable property can, in this colony, be 
 legally made good. It is clear, upon the whole, that from the local 
 courts of Holland to the Deeds Registry Office at the Cape, from 
 the ancient Schepenen down to the modern Mr. Carey, our Registrar 
 of Deeds, the Dutch Law has carefully provided for the due 
 publication of conventional mortgages. In this important particular 
 the Dutch practice may claim a just superiority over the English. 
 With the exception of an inefficient registry in Middlesex, in 
 Yorkshire, and in Kingston-upon-Hull, England, strange to say, 
 has not, and, whilst her country gentlemen retain the repugnance 
 which they have constantly manifested, England, in all probability, 
 never will have, any public place of record, by the aid of which 
 titles and encumbrances can be satisfactorily investigated, and the 
 true state and condition of landed property laid fairly open to 
 those whom it may concern. In Scotland they manage these mat- 
 ters much better ; and Ireland has possessed a very sound system 
 of Registry ever since the reign of Queen Anne. Still, as regards 
 the publication of conventional mortgages, I conceive that the 
 principle of the Registry of this colony is second to none which 
 may be found elsewhere ; and that by it the safety and security of 
 the public is most efficiently consulted. But every word of praise 
 which I pronounce upon the conventional mortgage is necessarily 
 an implied censure of the tacit. This cannot be registered in any 
 way whatever. It descends without warning and without notice, 
 and often with destructive force, upon the heads of those who have 
 no idea whatever of what is coming. I might mention many cases : 
 I will only mention one. It lately came to my knowledge, in con- 
 nexion with a meritorious institution of which I am President, 
 the Savings Bank. This body was applied to to lend a certain sum, 
 I think 1,000, on first mortgage of a house in Cape Town. 
 The house was inspected, and found to be an ample security ; and
 
 IO ON THE LAW OF 
 
 the title being clear and unobjectionable, the money was lent and 
 a mortgage bond taken. A short time since, the mortgagor became an 
 insolvent, and the next intelligence which the managers received 
 was a somewhat startling intimation from the Master of the 
 Supreme Court, in his capacity as superior guardian of the interests 
 of minors, that all the property of the insolvent was burthened 
 with a tacit hypothec, prior in date to the conventional mortgage 
 of the Savings Bank, and available for a very considerable sum. 
 This was pleasant. And for whom was this tacit hypothec 
 asserted ? Why, for the mortgagor's own children. A kind aunt 
 of theirs had left them money, and left it in the father's keeping, 
 and by virtue of the principle which we are considering, they 
 were to be paid to the uttermost farthing before the Savings Bank 
 could touch a stiver of their thousand pounds. Happily after all, 
 the bank lost nothing. As good luck would have it, it ultimately 
 turned out that the insolvent had other property not specifically 
 incumbered, on which, of course, the tacit hypothec was thrown, 
 and thus the bank was accidentally enabled still to point to the 
 creditable fact that, during ten years of extensive operation, it has 
 not sustained a single loss. But this was, as I have said, an 
 accident, and can have no effect whatever upon the essential 
 merits of the case. Coming then to the application of the 
 second rule : a canon of common sense as it appears to me, I 
 mean the rule which would confine the number of mortgages 
 generally within the narrowest limits which convenience will 
 allow, I observed that, in my opinion, the tacit hypothecs 
 are the proper ones to prune. They are so, because they 
 are, as in the case which 1 have mentioned, secret, it may 
 be unsuspected. They are pit-falls which no vigilance can 
 discover. The conventional mortgage is recorded, but not so its 
 silent sister. In investigating, as well as I was able, the legal 
 system of other countries in connection with this subject, I have 
 found that the tide of modern legislation has everywhere set in 
 strongly against those tacit hypothecs. Holland, as you will have 
 gathered from what I have already said, herself saw fit to restrict 
 both the number and the nature of those which were recognized
 
 DEBTOR AND CREDITOR. I I 
 
 by the Roman Law. By the Dutch Law the wife was gradually 
 ousted of the peculiar security for her dotal property which the 
 civil law allowed ; and, above all, the withdrawal of movable 
 property from the hypothecary grasp, so as to permit its aliena- 
 tion, was a magnificent move forward. The question then is, as I 
 have already stated it, shall we now stand still or shall we make 
 another step ? 
 
 I need not pause to point out to your Excellency the origin of 
 the right in question. Its origin was natural and even noble. It 
 was a generous determination that orphans, who might have no 
 other arm to protect them, should be protected by the mighty arm 
 of the law. I give all honour to the feeling from which the princi- 
 ple first sprung, and to which it is still indebted for support. But 
 I own I am afraid to trust myself upon these rapid, railway roads, 
 to what compassion christens justice. I cannot but think that a 
 view of public policy more enlarged and comprehensive, a calm 
 and impartial estimate of the claims, not of one class of creditors 
 merely, but of creditors in general, would have led to a widely 
 different conclusion. There is a saying of old Judge Twysden, a 
 contemporary, I think, of Coke in England, which though homely 
 has some pith in it. " Charity is a good thing," says he, " but for 
 all that, we must not steal leather to make poor men shoes." No 
 such privilege as I am now speaking of is conferred by the laws of 
 England, or of Scotland (based although the latter be upon the 
 civil law), nor of Ireknd, nor of any of the United States of 
 America, except Louisiana, which inherits it from Spain and 
 France. And why is not the principle carried out still farther ? 
 The widow is classed not unfrequently with the orphan. Shall we 
 then deny the widow a tacit hypothec upon the property of her 
 trustee ? Old men, also those who cannot dig and are 
 to beg ashamed shall they come in merely with common 
 creditors, and have no preference ? Such, however, is the decision 
 of the law. And why, it may be also asked, should the minor, 
 who is allowed to assert this privilege against the tutor, the 
 pro-tutor, and, generally, in fact, against all persons interfering 
 with his inheritance, be precluded from asserting it against the
 
 12 ON THE LAW OF 
 
 executor of his ancestor's will, in whose hands his property may 
 have been kept, and by whom it may have been dissipated ? But 
 such, again, is the decision of the law. Suppose a minor's money 
 be lodged in the Cape of Good Hope Bank, and let the Bank 
 stop payment (an event which is little likely to occur so long as 
 that concern has the benefit of such able and indefatigable manage- 
 ment as it now enjoys), will the minor have, in this case also, his 
 tacit hypothec ? Certainly not, not even a preference, 
 nothing but his simple rights as a mere concurrent creditor. It 
 may here be proper to observe that this question of tacit hypothec 
 is never a question between the pupil and the tutor. If it were, I 
 should not waste my breath in saying a single word upon the 
 subject. As against the pupil, it is clear as light that the tutor 
 who makes default can have no rights whatever. But I 
 pray your Excellency and the Council to keep in mind that the 
 question is never a question between the pupil and the tutor, but 
 always a question between the pupil and the tutor's creditors. It 
 is only in deficient estates that the matter becomes of the slighest 
 practical importance ; for, if there be enough to pay all, no one, of 
 course, can have the slightest reason to complain. What we have 
 to decide is, whether it is right and just that a man who buys a 
 house and pays full value for it, should, after the lapse of, it may- 
 be, 20 or 30 years, be called upon to pay his money over again, to 
 make good a deficiency in certain accounts which his vendor, as 
 tutor, long after the sale to him, allowed to f all into arrear. What 
 we have to decide is, whether it is right and just that a mortgagee 
 who, after doing everything in his power to satisfy himself of the 
 security on which he is to lend his money, takes his regular regis- 
 tered mortgage, is to find afterwards that his registered mort- 
 gage is so much waste paper, since another mortgage, neither 
 registered nor known, asserts a title paramount. Such a system, 
 one would think, must make parents and others careless 
 about whom they appoint, and tutors themselves careless 
 about how they act. Both will rely upon this state of the 
 law, as tending to cure all errors, and keep the minors safe. I 
 state these difficulties because I feel them. There may, I know,
 
 DEBTOR AND CREDITOR. I 3 
 
 be difficulties on the other side. These I shall be perfectly 
 willing to consider in committee. But I should deal uncandidly 
 with the Council if I did not express my present opinion, one 
 which I hold subject to argument, and which I shall be perfectly 
 ready to abandon, and that opinion is, that these tacit hypothecs 
 are not based upon sound principles ; that their policy is a short- 
 sighted policy ; that their operation inflicts more suffering than it 
 averts, and that the interests of the colony will be consulted by 
 going with that stream which, as I have already said, seems so 
 have set in against them. I am aware of the answer which may 
 be given to the arguments on which I have now touched. It 
 will be said that the principle of the hypothec is good, and that 
 nothing is wanted but due publicity. Let the public but know, it 
 may be argued, who are tutors and who are not, and all 
 practicable inconvenience will be done away. There is high 
 authority for this notion. It is embodied in a system of law too 
 celebrated to be within the reach of my humble panegyric : the 
 code Napoleon. By that code the tacit,hypothecs are reduced to 
 three, but one of these is the hypothec to minors. To enable 
 this principle to work so as not to interfere with the public 
 interests, the code civil obliges guardians to make public 
 the hypothecs with which their property is burdened, and 
 for this purpose they must, of their own accord, require in- 
 scription to be made (that is, have a mortgage registered) 
 over their own immovable property (movables by the law of France 
 are incapable of mortgage) ; and if, having failed to make such 
 inscription, they have dealt with any of this immovable property 
 without expressly declaring that that property was subject to the 
 tacit hypothec, they are pronounced to be guilty of the crime of 
 stellionate or fraud, an indictable offence. This principle is well 
 worthy of consideration, and it will, no doubt, receive the attentive 
 examination of the Committee. At present I shall only venture to 
 express my fears that such a law is not likely to be very vigorously 
 enforced ; that it would, in practice, be found to want that de- 
 gree of public sympathy without which all penal legislation becomes 
 inoperative ; that such registration could, with diffi-
 
 ON THE LAW OF 
 
 culty, be effected by all those persons whose interference 
 with the minor's property creates, by law, the tacit 
 hypothec, and that such registration, even if universally 
 effected, might scarcely meet the fair necessities of credit, since, 
 being the record, not so much of an actual, as of a contin- 
 gent, liability, it might unnecessarily cramp the transactions of the 
 cautious, and, on the other hand, keep but insufficiently in check 
 the confidence of the sanguine. All these things, however, will 
 be for the Committee ; and, conscious of the length at which I 
 have already trespassed upon the Council, I now quit the subject 
 of the tacit hypothec, and proceed to the second branch of the 
 resolution which I move. Your Excellency will be aware that I 
 am now to say a word or two respecting the general mortgages or 
 bonds, so common in this colony. I question if there be a single 
 topic upon which public opinion is more divided than it is upon 
 this topic of general mortgages. You won't meet any two men 
 who will tell you, successively, the same story. One intelligent 
 gentleman tells you that if something be not done to abate this 
 nuisance, he must wind up his affairs, and quit the 
 colony. Another intelligent gentleman tells you, in five minutes 
 after, that if you venture to touch this species of security, he is 
 determined to bid you, at once, an affectionate adieu. How shall 
 we decide between these conflicting parties ? The task is not an 
 easy one ; but in order to assist us in the due performance of it, 
 I propose to consider briefly what that general mortgage is which 
 all the hubbub is about. It is, as I stated early in my 
 observations, a species of the conventional mortgage, and, 
 in order to secure any preference, it must, according to the 
 law of this colony, be duly registered. By this general 
 mortgage, the mortgager binds all his present and all his future 
 property, movable and immovable, in security for the debt. It 
 is termed a general mortgage to distinguish it from the special 
 mortgage, that is, a mortgage by which certain particular im- 
 movable property is hypothecated. In practice, every special 
 mortgage is also made a general one, but the converse does not 
 hold, for general mortgages are numerous in which there is no
 
 DEBTOR AND CREDITOR. 
 
 special hypothecation. A general mortgage does not bind even 
 immovable property in the hands of a bona fide purchaser or 
 mortgager for valuable consideration ; an important fact, and one 
 which distinguishes its operation from that of the tacit hypothec of 
 which I have already spoken. With respect to movable property, 
 it is to be observed that the maxim formerly quoted " mobilia non 
 babent sequelam" applies in this case also, and that the general 
 mortgager cannot follow goods and chattels which have passed 
 into the possession of third parties, his right being restricted to a 
 preference over the movables of the debtor not disposed 
 of, and remaining in his own possession. It will thus 
 be evident to the Council that the general mortgage,- I 
 do not speak now of the mortgage which is both general and 
 special, but that the general mortgage, considered in itself, has 
 few of the ordinary characteristics of the hypothec, and amounts, 
 in fact, simply to a preference. In this respect it contrasts, and 
 contrasts favourably, with the tacit hypothec of the Dutch Law, 
 which I have already dwelt upon at so much length, and still 
 more strongly with the Roman Law, as well as with the system of 
 modern Spain and ancient France, according to which a prior 
 general, was always preferent to a subsequent special, mortgage. 
 The judicial hypothec is also paramount to the general mortgage, 
 that is, the claim of the execution creditor prevails against that of 
 the prior general mortgagee. What, then, is the crying grievance 
 connected with these general bonds of which we hear so much ? 
 It seems to be this, that scarcely an insolvency takes place in this 
 colony in which one or more of these general bonds does not 
 assert its preference, so as to leave nothing whatever for the great 
 body of the creditors. These securities, it is said, are made the 
 instruments of favouring particular creditors, and of defrauding all 
 the rest. But, after all, there is an important previous question to 
 be settled, and that is, whether it is possible to devise any 
 system of law by which particular creditors can not be favoured ? 
 Are we prepared to say that there shall be no legal mode 
 of making any one debt preferent over any other debt, except 
 by taking real security in the shape of a special mortgage, of
 
 j6 ON THE LAW OF 
 
 immovable property, particularly set forth and described ? And if 
 we be not prepared to go this length, how can we reasonably 
 prevent A. B. from telling C. D. that he will not give him credit 
 unless he has such or such a security for his debt ? a precaution 
 which creditors not so long-sighted may be willing to do without. 
 And how can any one complain of the law which permits A. B. to 
 get the advantage in question, when the deeds registry will show 
 to anybody who takes the trouble to consult it, how the matter 
 stands ? The practice in England is often adverted to by the 
 parties who complain of the colonial system. Let us look, for a 
 moment, at what that practice is. In England there is, certainly, 
 no security similar in form to that which I am now discussing. It 
 may be stated as a rule, sufficiently accurate for our present 
 purpose, that, owing to the various statutes against fraudulent con- 
 veyances, and those provisions of the bankrupt code connected 
 with reputed ownership, movables, in England, cannot be dealt 
 with so as to secure a creditor, except by delivery to that 
 creditor. It is true, moreover, that in bankruptcy, the general 
 rule is, no preference, all debts there being looked upon as equal. 
 Still, however, it is indisputable that the principle of equality of 
 debts is, according to the law of England, not the rule but the 
 exception. When an English debtor dies as debtors in England 
 will sometimes die leaving behind him a deficiency of assets to 
 meet his engagements, what takes place ? Do no particular kinds 
 of debt take precedence of debts in general ? Ouite the reverse. 
 The executor must begin at the top and walk down a descending 
 series of debts, step by step, as he would down a flight of stairs. 
 He must, at his peril, pay every one in his proper order, first, 
 funeral and probate expenses ; then crown bonds ; then debts pre- 
 ferent by statute ; then debts of record ; then debts under seal ; 
 and lastly, simple contract debts, including, of course, bills, notes, 
 and all acknowledgments of that description. Every superior debt 
 must be paid in full before any inferior debt receives a farthing. 
 It is right to say that the practice, in this respect, is not uniform, a 
 diversity existing between the administration, by an executor, of legal 
 assets, and of equitable assets, things between which the difference
 
 DEBTOR AND CREDITOR. IJ 
 
 is purely arbitrary. How is it that two separate systems of law, not 
 merely separate in their procedure, but very frequently conflicting 
 in their principles, still co-exist in such an age as this, and in such 
 a country as England, must, I think, excite the astonishment of 
 every foreign jurist. But so it is, and so it will, probably, remain ; 
 for landmarks are not to be removed, and time makes even 
 absurdities respectable. To return, however, to what I was saying 
 relative to the administration of assets in England, I have to observe 
 that the rule is that while legal assets are to be applied in the order 
 which I have already mentioned, equitable assets, (by which is 
 meant property recoverable only through the intervention of a 
 court of equity), are to be divided, share and share alike, amongst 
 all the creditors, without any preference or priority. Still, however, 
 as by much the greatest proportion of the property left by deceased 
 persons consists of legal assets, the correctness of my general state- 
 ment is sufficiently borne out. It is further to be kept in mind that in 
 England the estate of a deceased person cannot be made bankrupt or 
 insolvent. By the Insolvent Ordinance of this colony, such an estate 
 may be surrendered like any other ; but no such power or privilege 
 exists in the Mother Country, where such an estate must be 
 administered, as far as it has legal assets, upon the scale of priorities, 
 which I have already pointed out. Now, if it be not contrary to 
 natural justice that an unregistered bond creditor in England should 
 be paid in full out of the estate of a deceased man before inferior 
 creditors get anything, why should it be contrary to natural justice 
 that a registered bond creditor in this colony should be paid in 
 full out of the estate of an insolvent man before inferior creditors 
 get anything ? Apain, may it not be apprehended that if general 
 mortgages were abolished to-morrow, the whole of the evils which 
 are ascribed to them might be accomplished in another shape ? 
 May not particular creditors be favoured by being placed first in 
 the race for execution : In other words, if you do away with general 
 mortgage, may not the ingenuity of parties substitute the judicial 
 in its stead ? A debtor in England may give a particular creditor 
 a warrant of attorney ; in Scotland a decree of registration ; in this 
 colony an act of willing condemnation, and by that means enable 
 
 c
 
 1 8 ON THE LAW OF 
 
 that particular creditor to lay on his execution, that is, to obtain a 
 judicial mortgage before certain other creditors not similarly 
 favoured. I know nothing to prevent a London merchant from say- 
 ing to a London shop-keeper, ' I will not supply you with the wares 
 you want, unless you give me a warrant of attorney for confessing 
 judgment." I know nothing to prevent that London merchant, 
 (subject to the uncertain operation of a supervening bankruptcy) 
 upon the least alarm, from entering up his judgment, issuing exe- 
 cution, and sweeping the debtor's whole estate into his pocket. 
 I know nothing to render it necessary that that London merchant's 
 debt should be the most righteous debt, or should be the oldest 
 debt, or anything else than the most favoured debt. I know 
 nothing, therefore, which entitles me to say that the evils which 
 are deplored in this colony may not, in a different way, be also 
 experienced in England. I throw these matters out for the con- 
 sideration of the Council and, through the Council, of the public. 
 There may be something more In these general bonds than, at 
 present, meets my eye. That they are not, although registered, 
 made, in practice, sufficiently public, may be true ; and, if so, a 
 very sample process might obviate that objection. But I confess 
 that, subject to farther information, I am not disposed, just now, 
 to go the length of total abolition. If, however, the Committee 
 should determine on destruction, the task would be easily 
 accomplished. The code Napoleon has performed it, and per- 
 formed it in four words, "movables cannot be mortgaged." In 
 this colony their fate might be settled by a sentence almost 
 equally concise. 
 
 I have now reached the last topic on which it is necessary that 
 I should touch. Though last, it certainly is not least. The 
 Council will understand, at once, that I ajlude to the Insolvent 
 Law. Upon this head I shall be extremely brief in my remarks. 
 I can neither forget the length at which I have already tres- 
 passed, nor the additional length to which a discussion of any 
 particulars connected with Ordinance No. 64 would inevitably 
 lead me. One or two general remarks, then, and I have done. I 
 begin by bestowing my hearty commendation upon the general
 
 DEBTOR AND CREDITOR. JO, 
 
 principles and provisions of that Ordinance. I conceive that it is, 
 upon the whole, as well calculated to secure the great objects 
 which such a law should have in view, namely, giving everything to 
 the creditor except the debtor's unprofitable suffering, as any 
 similar system with which I am at all acquainted. Still it cannot 
 be denied that dissatisfaction does exist. Part of this dissatis- 
 faction is the natural language of men who have just lost money, 
 for there is not so severe a critic in the world as a disappointed 
 creditor. Nothing will persuade him but that the law, and that 
 alone, debars him from the sublime delights of twenty shillings in 
 the pound. Do I, therefore, maintain that the Insolvent Law is 
 susceptible of no improvement ? Far otherwise. If that were my 
 opinion I should not now be moving for a Committee to enquire 
 into it. But even admitting the law of this colony, in its practical 
 operation, to be as bad as it is sometimes said to be, we have com- 
 panions in misfortune, and are not all alone unhappy. There is an 
 outcry against the Insolvent Law of England, and there is an out- 
 cry against the Insolvent Law of America, as well as an outcry 
 against the Insolvent Law of this colony. I found a statement the 
 other day in a speech of Mr. Webster the great American States 
 man, Orator, and Jurist, to the effect that a Committee of the 
 House of Commons, which reported upon the working of Lord 
 Redesdale's Insolvent Act, which expired in 1818, found that the 
 estates administered under that law had not divided on an average a 
 single penny in the pound. I believe that the experience of this 
 colony, for the last twelve years, would not exhibit a result altogether 
 so disastrous. But much may be considered in the way of addition 
 to the present law, and something too, perhaps, in the way of 
 alteration. Whether opportunities are still left to insolvents to 
 make away with property, which opportunities can, in any way, be 
 cut off, whether Trustees of Insolvent Estates are generally 
 selected from the parties whom it is most desirable to choose from, 
 and whether the mode in which Trustees are now remunerated be 
 the most expedient, whether the evil of uncertificated insolvents 
 carrying on trade is capable of being effectually checked, whether 
 there are not many things connected with an insolvent's dealings 
 
 c z
 
 2Q ON THE LAW OF 
 
 which should justly subject him to punishment, over and above 
 the acts now described as constituting fraudulent insolvency, 
 whether some machinery should not be added to meet the exi 
 gency of a class of cases which has lately come before the court, 
 I mean the case in which all creditors who have proved being 
 paid in full, the estate is, at once, withdrawn from sequestration, 
 all these topics and many others which might be mentioned appear 
 to me to demand what I have no doubt they will receive, the 
 patient and attentive consideration of the Committee. 
 
 Let no one, however, expect that legislation can work wonders. 
 Let no one expect that the law can ever reconcile things as oppo- 
 site as light and darkness. Men do not gather grapes from thorns, 
 nor figs from thistles ; and until they shall do so, we may rely 
 upon it that as long as our merchants make their sales with reck- 
 less and indiscriminating eagerness, while their travellers, those 
 missionaries of Mammon who compass sea and land to make one 
 proselyte, are abroad in all directions, while to do an extensive 
 business is the leading object after which all press emulously 
 forward, so long, will it be found that no system of Insolvent 
 Law, which ever has been or which ever will be devised, can 
 realize for those engaged in commerce, advantages so opposite and 
 incompatible as all the profits of a dashing credit trade, and all the 
 security of cash transactions. But still an evil which cannot be 
 removed may yet be mitigated. I trust, that in the labours of the 
 Committee which I contemplate, some such mitigation will be 
 found. At all events, it will be in our power to evince that the 
 murmurs of the public are neither unheard nor unheeded by this 
 Council, that we do not shrink from the labour of investigating 
 the grounds on which complaints are based, and that if we do not 
 act upon all the opinions which are prevalent out of doors, it is not 
 from any indisposition to give to them and their supporters a 
 candid and impartial hearing. Influenced by this feeling I now 
 beg leave to move : " That a Committee be appointed to enquire 
 into the particular operation of the following branches of the law 
 of Debtor and Creditor in this Colony, viz, : 
 
 First, The system of Tacit Hypothecations ; and more par-
 
 DEBTOR AND CREDITOR. 21 
 
 ticularly those imposed upon the property of Tutors, Curators, and 
 others, in favour of parties to whom they have become indebted in 
 their several capacities. 
 
 Secondly, The system of General Mortgages or Bonds, and 
 Thirdly, The system of Insolvent Law. And to report whether 
 any, and if so, what improvements, seem to be required in any of 
 the said branches of the law, or in any other branches of the law 
 immediately connected with the same, or any of them." 
 
 ON INFANT SCHOOLS. 
 
 {Public Meeting, Cape Town, April 14, 1841.] 
 
 The Hon. Mr. PORTER said : My hon. friend who has just sat 
 down seems to take it for granted that I have come here to-day 
 prepared to make a speech. Sir, in this expectation my hon. friend 
 is, for once, mistaken. I have no speech to make. A few plain 
 words, indeed, I am anxious to speak, but nothing more, and if I 
 thought that anything more was looked for, I should be silent. For 
 in truth, Sir, there is nothing so valueless as mere spouting. Little 
 as it costs, it always costs much more than it is worth. We are 
 assembled here for work, and not for play, and our object is alto- 
 gether practical. An institution of unspeakable importance to 
 Cape Town and the whole colony is sinking for want of public 
 sympathy and support. Under such circumstances those who can 
 do, perhaps, but very little, should yet do all they can. Influenced 
 by this feeling, I am here. When an establishment like that 
 which brings us now together stands in so much need of assis- 
 tance, the man who would not stretch forth an arm to raise 
 it up, deserves that his right hand should forget its cunning ; 
 when a word spoken in season might possibly be of service, 
 the man who would refuse to speak that word, deserves that his
 
 22 ON INFANT SCHOOLS. 
 
 tongue should cleave to the roof of his mouth. Sir, upon the general 
 question of Education little need be said. That question has been 
 long before the public here, and may be considered, at least theore- 
 tically speaking, as completely set at rest. It would appear, indeed, 
 that an attention to the educational necessities of the poor is not, 
 in this colony, a thing of yesterday. When just about to leave 
 my office for this meeting, a friend at the other end of the hall, 
 one to whom the records of our colonial history are probably more 
 familiar than they are to any other person, shewed me a striking 
 passage in a forthcoming publication of his own, which clearly 
 proves that some sound principles upon the important subject of 
 Education were promulgated by the Dutch Government centuries 
 ago. But, coming down more nearly to the present times, we 
 find that the cause has been advocated with an ability too distinguish- 
 ed to leave room for much additional support. You have yourself, Sir, 
 favoured the meeting by reading a part of Mr. Fairbairn's article of 
 this morning, in which the claims of this institution are powerfully 
 urged. That article is only one of a very long series. For ten 
 years and upwards, the Commercial Advertiser, with untiring energy 
 and perseverance, has ceaselessly continued, in season and out of 
 season, to assail the heads and hearts of the community with a 
 succession of earnest, eloquent, and argumentative appeals, in behalf 
 of general Education. And, in connexion with this subject, Sir, I 
 may, I think, be permitted to allude to the several excellent 
 addresses delivered, at the opening of their respective schools, by 
 some of the Government teachers recently appointed, addresses 
 which have attracted a good deal of attention, and which have 
 triumphantly established the all important truth that a good educa- 
 tion is a great blessing. Argument, therefore, is not required. The 
 cause is tried, the evidence is closed, the advocates have spoken, 
 public opinion has pronounced its unanimous and irreversible 
 decree, and that decree is, " let the poor be taught." Sir, in one 
 point of view this unanimity is cheering. It is cheering to find 
 that none of the old sophisms which, in Europe, struggled long and 
 loudly, and which were not shamed into silence without great 
 difficulty, are heard to whisper here. The sensual sophism which
 
 ON INFANT SCHOOLS. 23 
 
 teaches that because Education is not meat and drink it is therefore 
 nothing, has, with us, no advocate. It is true, indeed, that the 
 animal wants must be attended to ; and it is true, moreover, that 
 Education has a constant tendency to supply them more abun- 
 dantly ; but even setting this apart, I never could be convinced by 
 Cobbett (and by the bye, the Hampshire clodpole should have re- 
 membered what he himself owed to the education which he 
 ridiculed), that the chief end of man is to gorge fat bacon. The 
 slavish sophism which says that Education leads to discontent 
 and danger, and that, as knowledge is power, it will prove 
 to be a power for disorder and destruction, does not, I 
 think, venture now to raise its head. Sir, in your opening 
 address, you have yourself adverted to, and exposed, this 
 fallacy. You have adduced the memorable instance of the 
 French Revolution. In France the mass of the population 
 had been kept in utter darkness, but Samson's blindness, 
 instead of averting, only aggravated the vengeance which he ulti- 
 mately took on those who had put out his eyes. The stupid 
 sophism which cries out that education will turn the world upside 
 down ; that it will lead the lower classes to forget themselves and 
 their proper situation, and that we shall soon have no more hewers 
 of wood and drawers of water, has, in this colony, no adherents. 
 Sir, I call this sophism a stupid sophism, for who does not 
 see that vanity and presumption are the fruit, not of any 
 general advance, however great, but of some real or supposed 
 individual distinction, however slender ? No man upon a 
 railway ever dreams of being proud of his extraordinary speed, 
 because he and all his fellow-travellers with him are rushing along 
 at the rate of forty miles an hour. On all these matters we are 
 all unanimous, and certainly, in one point of view, as I have said, 
 the unanimity is cheering. But there are two sides to everything, 
 and this very unanimity may have an aspect not quite so desirable 
 as that which it, at first, presented. Where all are unanimous, is 
 it not sometimes found that all are apathetic ? Zeal never burns 
 so brightly as when it is inflamed by opposition. I could almost 
 wish that the cause of public instruction had its avowed and
 
 24. ON INFANT SCHOOLS. 
 
 determined enemies. An anti-Education Society, for instance, 
 would be worth any money. With such a stimulant to fire our 
 flagging zeal, I can assign no limit to the resources which would be 
 furnished by many who, at present, look idly on and render no 
 assistance. Sir, it is a humiliating reflection, but one, I fear, too 
 well sustained by general experience, that principles may be too 
 pure to produce their practical effect on the public mind ; and that 
 until they are adulterated with some admixture of party spirit or other 
 comparatively base ingredient, they never become current with 
 society at large, just as gold may be too pure to serve the purposes 
 of mankind, and never becomes fit for circulation until there has 
 been added to it a certain portion of alloy. Sir, I am unwilling to 
 to believe that the principle at which 1 have thus glanced, is an all- 
 pervading principle. For the credit of the colony, I trust that it 
 is not. It were, indeed, a miserable and a melancholy thing to 
 think that the public generally cannot be raised to the height of so 
 great an argument as that which we are this day assembled to 
 support, from any motive more elevated than the paltry one of 
 party feeling, and that it is only through envy and strife that the 
 poor can have this gospel preached to them. Sir, the duty is plain, 
 practical, and of paramount importance. It meets us in the 
 public streets, it follows us to our own homes. There is no 
 station in society, no relation in life, to which its warning 
 voice is not addressed. If* you ask me how you shall best 
 fulfil your obligations as good heads of families ? I answer, 
 "Educate the poor," because, by so doing, you are rear- 
 ing up a class of domestics, orderly, obedient, respectable, intelli- 
 gent, domestics with whom your children must come in contact, 
 and whom they may touch without contamination. If you ask me 
 how you shall best fulfil your obligations as good citizen's ? I 
 answer the second time, " Educate the poor," because, by so 
 doing, you are putting tools into the hands of talent, calling forth 
 unconscious power, bestowing the invaluable habits of attention 
 and perseverance, and prompting to that energy and enterprize 
 on which the progress and prosperity of the colony must, in a 
 great degree, depend. If you ask me how you shall best fulfil your
 
 ON INFANT SCHOOLS. 
 
 obligations as good Christians ? I answer the third time, " Educate 
 the poor," because, by so doing you are getting ready the soil for 
 a still richer culture ; and fitting it for the reception of that precious 
 seed which, without such previous preparation, must fall, as by the 
 way side, exposed to all the fowls of Heaven ; but which, with that 
 previous preparation, may, haply, bring forth fruit, some thirty some 
 sixty, and some an hundred fold. If then, Sir, the great principle be 
 clear, if schools for the instruction of the poor, in general, are 
 worthy of all commendation and support, what shall we say of Infant 
 Schools ? You perceive, Sir, that I am still following in your track, 
 illustrating, as well as I can, the topics touched on in your opening 
 speech, and endeavouring to glean a field so closely reaped that I can 
 scarcely hope to be rewarded by a single sheaf. But I cannot 
 hesitate to repeat, in order to adopt a sentiment which you threw 
 out, and to express my strong conviction that, of all the machinery 
 which has been devised for the education of the lower orders, 
 none is more efficacious than that of Infant Schools. Sir, you have 
 spoken of the opening of the South African College a day or two 
 ago. I also had the privilege of being present there. I call it a 
 privilege, and, justly, because, in addition to much other excellent 
 matter, I had the advantage of hearing from Dr. Adamson a discourse 
 which I willingly digress in order to record my admiration of a 
 discourse of which the profound and comprehensive meaning would 
 have found acceptance with Bacon ; of which the broad, unsophisti- 
 cated common sense would have satisfied the practical sagacity of 
 Locke, of which the high, imaginative, eloquence, as, ever and 
 anon, the widening circle of science stretched far into the infinite, 
 and philosophy became identical with poetry, would have filled the 
 ear and mind of the immortal Milton. Sir, I congratulate the 
 colony upon the auspicious opening of the College, and bid it, 
 from my heart, Godspeed. But still, if I weie obliged to compare 
 the College with the Infant School, if, instead of being natural 
 allies, those institutions were natural enemies, if one of them must 
 be taken and the other left, I should, for my own part, take the 
 Infant School, believing that more good may reasonably be looked 
 for in that quarter. And yet, strange to say, there is not a
 
 26 ON INFANT SCHOOLS. 
 
 little misconception abroad relative to these things. At 
 home, I have heard schools for infant learning talked against, as I 
 have heard factories for infant labour talked against. Little children, 
 it is said, " were never made to be shut up in schools, they grow 
 dull and dismal in their prison-house, defer until a more con- 
 venient season those irksome things called tasks." Now, this 
 sounds well enough, for no one wishes to darken even with a single 
 cloud the dawning of existence. But all such objections are 
 based upon two palpable fallacies. They suppose, first, that 
 learning must be made a toil to every little learner. How far 
 this notion is a correct one we have had to-day an opportunity 
 of judging. You saw the look and bearing of the children, 
 what animation ! what eagerness ! what activity, both of mind 
 .and body ! The truth is, that an Infant School, when pro- 
 perly conducted, instead of entailing the slightest suffering, is 
 made the means of gratifying a strong instinct. The mind is 
 never either stretched or strained, but merely assisted in de- 
 veloping itself, and furnished with the objects best fitted for its 
 exercise. But the objections alluded to farther suppose that the 
 education of a child may be postponed at pleasure. This, however, 
 is impossible. You may, indeed, postpone giving him a good edu- 
 cation, but by so doing, you will, in all probability, only allow him 
 to get a bad one for himself, since an education of some sort or 
 other he will assuredly obtain. You cannot keep it from him. It 
 is a law of nature that we shall always be in training. The period 
 of education is not some ten years, or so, cut out of the remainder 
 of our lives ; no, it begins in the cradle and ends only in the grave. 
 But it is in the commencement of existence that the most important 
 work is to be done. It is then that the great foundations of life are 
 laid, and that the character assumes a form which subsequent events 
 seldom alter in essentials. Profoundly, as well as poetically, does 
 the greatest poet of the age (will the admirers of Byron pardon me 
 for speaking thus of Wordsworth ?) declare that 
 
 " The child is father of the man." 
 You remember the theory of Bonaparte, that remarkable men
 
 ON INFANT SCHOOLS. 
 
 have always been the sons of women of distinguished talents. I 
 believe that the fact agrees well with the speculation. And how 
 is the thing to be accounted for ? Not, certainly, by any fanciful 
 physiological solution, but by the simple circumstance that the 
 man was made in those sweet, early days, when the child went in 
 and out beneath his mother's eye. Now, to furnish to all children 
 that sort of education which a superior woman would wish to give 
 her own, is a great object of a well-conducted Infant School. I am 
 by no means clear that even for the children of the rich, such Semi- 
 naries would not be exceedingly desirable. Amongst the rich, also, 
 will be found mothers who have not the necessary leisure, the 
 necessary skill, and the necessary firmness, for the due performance 
 of the task imposed upon them. But, however it may be with 
 the rich, with the poor the case is clear. Sir, you have already 
 directed the attention of the meeting to the contrast which is 
 presented by the child to whom the doors of the Infant School 
 open, and the child against whom those doors are closed. 
 That contrast is marked, undeniable, decisive ; appealing to every 
 head that thinks, and every heart that feels. I shall not now speak 
 of the outcast and his melancholy lot, but turning to his more 
 favoured companion, how all-important, to him, does the Infant 
 School become ? To surround him with virtuous associations, and 
 remove him from associations of a character diametrically opposite ; 
 to form his moral sentiments by gently encouraging what is 
 good, and gently repressing what is evil, to give him ideas, 
 and, still more, to give him principles ; to bestow on the reli- 
 gious tendencies of his nature a due direction ; to keep watch 
 and ward against what will be found, if I mistake not, the 
 two great besetting sins of childhood, inordinate selfishness 
 and indifference to truth, such are objects proposed, and such 
 the advantages to be gained by every well-conducted Infant 
 School. Sir, I have said enough in the way of general remark. A 
 word or two more, and I have done. I ask this meeting, and through 
 this meeting, the Cape Town public, "Is this Society to perish ! " 
 Is the ten years war, which has here been waged with sin and 
 ignorance, to be disgracefully abandoned ? If I am to look to the
 
 28 ON INFANT SCHOOL?. 
 
 recent history of the Institution, I must anticipate an unfavourable 
 answer. Its funds have been rapidly diminishing, and with its funds, 
 its pupils. Where you had formerly 200, you have now but 60, and 
 still your Treasurer is largely in advance. Is then, I ask again, 
 this Society to perish ? Sir, it will not perish ; on the contrary, it 
 will spring up with youth renewed, if we can, this day, succeed 
 in awaking some portion of the public sympathy. I do not believe 
 that any paltry, pitiful, considerations of economy have had the 
 slightest influence in starving the subscription list, for contributions 
 too trifling to be felt by any one, would, if widely spread, amply 
 supply all our reasonable necessities. Our enemy is not economy, 
 but indifference ; and, for my own part, I have great confidence 
 in the public if you once can shake it, rouse it, make it think. Sir, 
 ] do trust that this meeting will accomplish the noble end in view. 
 After what we all have witnessed from the children to-day, it 
 would be an insult to entertain a doubt. The advocates of 
 antiquity, when pleading in behalf of infants, were accustomed to 
 present their clients before the judges, in order to add to the effect 
 of their passionate addresses. Our colder times and temperaments 
 reject, in general, such instruments of persuasion, but if it were at 
 all allowable to have recourse to them, surely we might well point to 
 the children whose exercises and attainments have amused you 
 here to-day, tell you that their fate is in your hands, and beseech 
 you to take pity on them. Having done so, we may close our 
 case. Sir, I may be too sanguine, but I do anticipate success. The 
 liberal arrangement on the part of Government which you have 
 already explained, is, of itself, a powerful inducement. Mercy, in 
 this instance, is, in a peculiar sense, twice blessed. Every one 
 pound from the public is two pounds to the schools. But I feel 
 persuaded that even this inducement could, if necessary, be 
 dispensed with. You are bound to sustain this Society by many 
 considerations. You owe it to those whose labours and liberality 
 have hitherto supported it, through good report and through evil 
 report, not to allow it now to sink. You owe it to the reverend 
 and venerable gentleman (Rev. Dr. Philip) who sits near me, to step 
 forward. Ten years ago he gave being to this Society, a small
 
 ON INFANT SCHOOLS. 29 
 
 beginning, but capable of indefinite development ; the grain of mus- 
 tard seed, which might become a great tree ; the little leaven that 
 might suffice to leaven the whole lump ; the small cloud, at 
 lirst no bigger than a man's hand, which might gradually 
 spread itself over the horizon ; and from whose bosom might 
 gently descend the fertilizing rain. A great orator of my own 
 country, speaking of a vast but short-lived, political advantage, 
 which he had himself bestowed on Ireland, once exclaimed (and 
 the image, from its suddenness, simplicity, and completeness, has 
 been thought one which Dante might have been expected to strike 
 out), " I sat by its cradle, I followed its hearse." I trust that the 
 reverend gentleman to whom I have referred will not be obliged 
 to adopt the words of Grattan, as applicable to this Society, nor 
 doomed to feel again, in his old age, as if another of his children 
 had gone before him to the grave. You owe it to the little creatures, 
 who stood before you here to-day, to continue to them the inestim- 
 able blessings which they now enjoy. Finally, you owe it to your- 
 selves to avert the deep disgrace which must inevitably settle down 
 upon the Cape, if this effort for duty and humanity must be, at last, 
 relinquished. Sir, we shall avert that deep disgrace. The good ship 
 will right again, and go her course steadily. I see around me the ma- 
 riners who have manned her since she was launched, who will not 
 desert her as long as her timbers hold together ; who will lash 
 themselves to her deck, if necessary, and shrink from neither the 
 battle nor the breeze. I trust that she is destined to make her on- 
 ward voyage under smiling heavens and through friendly seas, and 
 that she will reach safely and successfully the desired haven. But 
 if, unfortunately, her future fate is to be different ; if storm and 
 darkness should gather round her track, or direct hostility beset her 
 solitary path, her crew will stand to their guns, and cry, with the 
 American captain in the last war, when his sails were shot away 
 his mainmast shivered, his men were scattered dead around him, 
 and he himself lay wounded on the deck, " Don't give up the 
 Ship ! "
 
 ON LABOUR, ROADS, AND MAGISTRATES, 
 
 [Legislative Council, \tb October, 1841.] 
 
 The ATTORNEY-GENERAL said : It had so happened that in the 
 course of that desultory, but not, by any means, im-pertinent con- 
 versation, three of the greatest wants of the colony, he meant 
 the increase of our colonial labour ; the improvement of our 
 colonial roads, and the extension of our colonial magistracy, had 
 been severally introduced. These were questions of a very grave 
 and important character, and he would have wished before med- 
 dling with them, to have had some time for previous reflection, but 
 a they had thus accidentally come before the Council, he would 
 offer upon each of them some general remarks. There could be 
 no doubt, whatever, that to obtain a supply of liberated Africans 
 from St. Helena would be, if practicable, a most desirable measure ; 
 but he agreed with his hon. friend, the Collector of Customs, in 
 thinking that our chance of getting cny number of these people was 
 by no means promising. Certain it was that some 1,800 or 2,000 
 Negroes were there to be disposed of, but why exactly they so 
 remained undistributed was not so clear. It might be that a legal 
 difficulty had arisen, and that nothing would be done with respect 
 to the persons in question until that difficulty had been removed. 
 His Excellency had adverted to doubts which were entertained 
 relative to the competency of the court by which slavers were 
 condemned at St. Helena. Those doubts arose from the fact, that 
 that court had been appointed by Sir Thomas Middlemore in his 
 capacity as Vice-Admiral of the Island, and not, as was the general 
 practice, by the Queen. The Chief Justice of St. Helena was of 
 opinion (and hs, the Attorney-General, certainly conceived that 
 that opinion was supported by very strong reasons), that the Vice- 
 Admiral was rather an official than a jadicial character, and that it 
 was not competent for him to try, or to depute others to 
 try, such a class of cases as that under the Abolition Act 
 of her present Majesty, which were by tkat Act to be
 
 ON LABOUR, ROADS, AND MAGISTRATES. 3 I 
 
 dealt with by what is therein described as a Vice-Admiralty 
 Court. However, as the Act of Parliament had been transmitted 
 to the Governor of St. Helena, and as other communications had 
 been received by him from head-quarters, which clearly supposed 
 the existence at St. Helena, of a competent Vice-Admiralty Court, 
 His Excellency had determined to act as it seemed to be expected 
 he should do, and he had, in consequence, appointed a tribunal 
 which had adjudicated upon a number of Portuguese slavers. He, 
 the Attorney-General, did not know whether the delay which had 
 taken place in doing anything with the liberated Africans was con- 
 nected with the matter to which he had just adverted, but if, as 
 was not improbable, they were kept over awaiting the decision of 
 the High Court of Admiralty in England, it might be found that 
 there was sufficient virtue in the " law's delay " to protract the pre- 
 sent state of uncertainty, until our application (should we make 
 one) would have time to reach the proper quarter. But even sup- 
 posing that we were not too late to prefer our claim, had we any 
 good reason to hope that it would prove successful ? It seemed 
 that Demerara was in the field against us, with a fund of ^50,000 
 and already possessing what this colony was only looking for a 
 steamer. 
 
 The GOVERNOR said that his hon. and learned friend had mis- 
 understood him. Demerara had proposed to bring Africans from 
 Rio, but not from St. Helena. The Mauritius was our competitor 
 as regarded the latter. 
 
 The ATTORNEY-GENERAL thanked His Excellency for setting 
 him right, and congratulated the Council upon not being brought 
 into immediate conflict with a rival so powerful, both in pecuniary 
 and political resources, as Demerara would have been. But when 
 he recollected the extraordinary efforts which were now made 
 throughout the principal West India Possessions to obtain labour ; 
 the fact that supplies were sought for in quarters so opposite and 
 remote as India and reland, and the little likelihood that 
 what was passing at St. Helena would be overlooked 
 in the quarter to which he was adverting, he could 
 not shut his eyes against the probability that we must still be
 
 2 2 ON LABOUR, ROADS, AND MAGISTRATES. 
 
 prepared for great, perhaps overwhelming, West Indian competi- 
 tion. Still, however, he would assume that we might have 500 or 
 1,000 free blacks from St. Helena, by making fit provision for them, 
 and then he came to ask in what manner was that provision to be 
 made ? He (the Attorney-General) believed that there would be 
 found, not perhaps insuperable, but yet very formidable, obstacles in 
 the way of our proceedings. Would the colonists give their money 
 to bring labourers to the colony, to whose services they should have 
 no right, on whom they should have no sort of hypothec or lien, 
 bnt who were to be distributed by the Collector of Customs (should 
 the task be allotted to his hon. friend), to those subscribers alone 
 whom, in his unfettered discretion, he should deem the fittest 
 and most proper r That this freedom of selection must be 
 scrupulously observed, and nothing like a claim to the Negro 
 for a moment recognized, was a principle so clear and de- 
 cided that it would be a waste of time to urge or argue its neces- 
 sity. Again, the time for which those Negroes could be properly 
 contracted was a further matter for consideration. Upon this sub- 
 ject his hon. and learned friend opposite (Mr. Cloete) had slightly 
 touched, but had observed that whether or not Africans condemned 
 at St. Helena, for the purpose of being liberated, were to be dealt 
 with, in this colony, according to the plan prescribed by the aboli- 
 tion statutes, in the same manner as if they had been adjudicated 
 upon in the Vice-Admiralty Court of this colony, was a question 
 on which . he would offer no opinion. It was one, however, on 
 which he (the Attorney-General) could not hesitate to state his 
 views, and he had no doubt whatever, that his hon. friend, the 
 Collector of Customs, had no official connexion with any Negroes 
 introduced here under such circumstances as we were now con- 
 templating ; that Negroes condemned in another colony were, 
 in this colony, in no different situation from Negroes who 
 never were condemned at all ; that the powers with which his hon. 
 friend were invested flowed exclusively from a condemnation in the 
 Court of this particular colony, and that, consequently, the term 
 for which any Negroes, received from St. Helena, might be con- 
 tracted or apprenticed, would not be governed by the provisions of
 
 ON LABOUR, ROADS, AND MAGISTRATES. 33 
 
 any of the Abolition Acts. If those provisions did apply, his hon. 
 friend in the exercise of a discretion reposed in him, a discretion 
 for the exercise of which he was responsible, and which every one 
 knew had been heretofore most wisely governed, might contract 
 an adult for any period of service not exceeding seven years. His 
 hon. friend, no doubt, feeling that he was, in fact, the guardian 
 and protector of the persons entrusted to his care, and as such bound 
 to make the best bargain he could for their advantage, had never 
 ajjproached the legislative limit, finding that a time considerably 
 shorter would be more advantageous to the African. But still, 
 he had made contracts for Negroes condemned in this 
 colony, which were to last for three years. Could he do 
 the same for Negroes condemned at St. Helena, and afterwards 
 brought here ? The general Master and Servant's Ordi- 
 nance still awaited the royal approbation. The local Ordinance 
 respecting native foreigners did not apply to this case. The 
 general principles of law applicable to master and servant could 
 not safely be applied to such parties as were now in view. Under 
 these circumstances, he considered that his hon. friend would pro- 
 bably be of opinion that he ought to conform himself 
 implicitly to the Order in Council of September, 1838, which 
 had formed the basis of the Master and Servant's Ordinance 
 in this colony, and which certain circular communications from 
 the Secretary of State, originally framed for the West Indies, 
 but forwarded also to the Cape, had laid down as the 
 rule to which all Governors and other officers, at whose 
 stations any Africans might happen to be landed, should invariably 
 obey. If his hon. friend should feel himself constrained to 
 adopt this view, he could not contract any man for a 
 longer term than twelve months. Would this term answer 
 the purpose of those gentlemen who now spoke about subscribing ? 
 His hon. friend opposite (Mr. Ham. Ross) and his hon. and learned 
 friend near him (Mr. Cloete), knew much more than he did of 
 the views of the agricultursits and others by whom this matter 
 had been agitated, but he was led to think, from information 
 which he had derived from some gentlemen who had honoured 
 
 D
 
 >1A ON LABOUR, ROADS, AND MAGISTRATES. 
 
 him with a call upon the subject, that very few persons in the 
 colony would pay a man's expenses from St. Helena to the Cape in 
 return for only one year's service. He hoped, not merely that he 
 was wrong in this notion, but that all the other difficulties which 
 he anticipated would be found equally imaginary, and that a species 
 of labour which was, he thought, peculiarly fitted for this colony ? 
 might be introduced as copiously as possible. Upon the prac- 
 ticability of importing the European labourer, he had always been 
 sceptical ; and what he had observed when travelling through the 
 colony about this time last year, had not, speaking generally, tend- 
 ed to remove, but to confirm that scepticism. But, for the liberated 
 African, he did not conceive that there was any possession of 
 the Crown so peculiarly fitted, with respect to climate, healthiness 
 of employment, and the tendency which, placing them as servants, 
 domestic or agricultural, in respectable families, inevitably had to 
 improve and civilize them. 
 
 He now came to the project of his hon. friend opposite (Mr. 
 Ross), with regard to our roads. Assuming that labour might be 
 got from St. Helena, his hon. friend proposed that it should be 
 brought here by public subscription, and placed at work upon some 
 of our roads until the raw recruit should be drilled a little and be 
 taught the use of the axe or shovel. His hon, friend, however, 
 had not adverted to one important consideration, namely, to the 
 fund which was to supply with necessaries, and, also, probably with 
 some small wages, the imported labourers who were to be thus 
 employed. Was this fund, also, to be subscribed for f If so, was 
 the colony disposed, or, indeed, able to raise it by subscrip- 
 tion ? And, on the other hand, if this fund were to be 
 supplied by the colonial revenue, was that revenue in a con- 
 dition to bear any burthen of the kind ? In all probability his 
 hon. friend would hereafter be able to point out some method of 
 working out his plan, and his (the Attorney-General's) object was 
 not by any means to throw cold water upon a project which, if 
 practicable, had much to recommend it, but merely to draw atten- 
 tion to certain important matters which ought not to be over- 
 looked . The condition of our roads was, indeed, deplorable. Until
 
 ON LABOUR, ROADS, AND MAGISTRATES. 35 
 
 something were accomplished in that direction, this colony could 
 never take its natural and proper place. The difficulty was to de- 
 vise some practicable mode of doing what every one felt ought, if 
 practicable, to be done. Different schemes, more err less feasible, 
 had been suggested, but he (the Attorney-General) would venture 
 to give it as his opinion, that an equitable assessment, or to use at 
 once the most unpopular word in the language, a tax, upon 
 all immovable property, as well in the towns and villages as 
 in the country districts, to constitute a separate fund from the 
 ordinary revenue, and to be judiciously and impartially expended 
 upon the public roads of the colony, would be decidedly the most 
 just, and at the same time the most effectual mode in which the 
 existing evil could be met. Whether the colony was yet ripe for 
 such an effort he could not say, but without some effort, was it not 
 clear that the evil would, day by day, be getting worse, and that 
 by putting off what must at some time be attempted, we only added 
 to the difficulty of ultimately doing it. 
 
 Quitting, for the present, with these remarks, the subject of 
 roads, he should proceed to say a word or two about the remain- 
 ing question of the three which had been stirred to-day, the 
 magistracy. It appeared to him that before going into Committee 
 upon this subject, the Council should fully understand what it was 
 which the Secretary of State desired them to consider. If, for 
 instance, the Secretary of State wished to know whether or not, in 
 .the opinion of this Council, the magistracy was sufficiently nume- 
 rous to meet the wants of the public, the Council, he was sure, 
 would be compelled, at once, to answer no, and the negative 
 would find on echo in every quarter of the colony. He did not 
 think that there was in any one district any one magistrate too 
 much. His hon. friend opposite (Mr. Cloete, sen.), in his remark 
 to-day might he understood as saying that there were too many 
 magistrates at this end of the colony ; that in fact, in some places, 
 you could not stir out without stumbling over some such func- 
 tionary. But he (the Attorney-General) believed that the evil 
 was, not that any place had too many, but that many places 
 had too lew. The case of the Hantam had been mentioned 
 
 D 2
 
 3 6 ON LABOUR, ROADS, AND MAGISTRATES. 
 
 again by his hon. friend to-day, as its claims had been formerly 
 urged with much force by his hon. and learned relative, and there 
 could not be a doubt that justice was, in the whole of that tract of 
 country, rendered almost inaccessible by distance. No doubt, as 
 the Secretary of State observed in his despatch which kad just been 
 read, a thinly populated region must necessarily have its seats of 
 justice comparatively difficult of access. It would be absurd to 
 expect that Clanwilliam could be furnished with magistrates like 
 Middlesex. But still an inconvenience might, perhaps, be abated 
 which could not be entirely removed ; and he knew no reason why 
 certain places should not get magistrates, except that the Colonial Go- 
 verment wanted means to pay them. Again, did the Secretary 
 of State wish to know whether or not, in the opinion of this Coun- 
 cil, our magistracy was overpaid ? If so, the Council and the colony 
 again would answer no. The magistracy now discharge im- 
 portant functions ; there is an idea entertained, by in- 
 creasing their jurisdiction, of making their functions more im- 
 portant still ; and he, for one, would shrink from the responsibility 
 of committing high judicial powers to a class of men, in circum- 
 'stances so straitened as to subject than to the suspicion, if not to 
 the temptation, of being corrupted. Upon this subject also, the 
 Secretary of State had thrown out an observation which was as 
 indisputable as the former one already mentioned, namely, that 
 with regard to magistrates as well as all other sorts of public ser- 
 vants, your means of remuneration must be the limit of the ability 
 which you can afford to purchase, but his Lordship's distinct admis- 
 sion that the administration of justice was the last quarter in which 
 considerations of economy should be allowed to operate, when ap- 
 plied to the scale of salaries received by our colonial magistrates, 
 would prove conclusively that those salaries could not safely be re 
 duced. Did the Secretary of State desire the opinion of the Coun- 
 cil upon the subject of the public usefulness and efficiency 
 of the four special magistrates alluded to in his Lordship's 
 despatch? Upon this subject he (the Attorney-General) 
 believed there would be no difference of opinion, that all would 
 concur in declaring that those gentlemen had deserved well of the 
 colony by faithfully discharging the duties entrusted to them, and
 
 ON LABOUR, ROADS, AND MAGISTRATES. 37 
 
 that (so long, at least, as the present arrangement connected with 
 their support was continued), their removal from their seats of 
 magistracy would be a public loss. But behind these questions 
 there were others of more difficulty. Did the Secretary of State 
 wish to learn, through the Legislative Council, whether the colony 
 was prepared to show how, with reference to finances exclusively 
 colonial, the number of colonial magistrates could be increased ? 
 This would be a point not easily disposed of, and if his Lordship 
 should further desire to know whether the Council was prepared to 
 recommend that the four special magistrates should be added at 
 once to the ordinary colonial establishment, in case the Home 
 Government should discontinue the assistance heretofore bestowed, 
 another point of some difficulty would be presented for considera- 
 tion. He would further observe that as we were to have a 
 committee upon the subject of the magistracy, he conceived that 
 the question of their jurisdiction ought to be adverted to. Was 
 their jurisdiction to remain as at present ? or was it to be increased ? 
 and, if increased, was both the civil and criminal jurisdiction to be 
 augmented ? or only the latter ? and, in either case, how far ? 
 These were matters to which he (the Attorney-General) had given 
 already some attention, and before going farther he should like 
 to know the opinions now prevailing in the Council upon 
 the subject. There had been a Bill before Council some 
 years ago, of which he did not know the exact fate 
 
 A MEMBER : It was withdrawn. 
 
 ATTORNEY-GENERAL : Then, the question was whether that Bill 
 might be again introduced, and, if so, what modification, if any, 
 would be necessary, in order to remove the opposition which it had 
 formerly received? It was certainly desirable that any inquiry to 
 be instituted should be comprehensive and complete ; leaving no 
 important points untouched, and, if possible, unexhausted ; in order 
 that upon matters so intimately connected with each other as the 
 numbers, the salaries, and the duties of our colonial magistrates, 
 the Secretary of State might have fully before him the views which 
 were entertained by that body to which he had himself adverted 
 as the most competent to form a correct opinion, a Committee of 
 this Council.
 
 1842. 
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 {Legislative Council, March 21, 1842]. 
 
 Mr. BREDA presented a Petition against the Public Buildings 
 Exemption Bill, from the Commissioners and Wardmasters of the 
 Cape Town Municipality, which he moved should be received. 
 
 Mr. Adv. CLOETE seconded the motion. 
 
 The Petition was read and laid on the table. 
 
 The ATTORNEY-GENERAL said : As no Member of Council seems 
 disposed, at present, to move the rejection of the Ordinance, I 
 deem it proper to take at once the opportunity of explaining a 
 little more at large than I did upon a former occasion, the princi- 
 ple on which I conceive the measure to be founded, and the rea- 
 sons which, in my mind, render it imperative to pass this Bill. I 
 think it right, considering the petition which has just been read, 
 and the small municipal excitement which prevails upon the sub- 
 ject out of doors, to disavow in the outset, as well for myself as for 
 every member of the Government, so far as I am acquainted with their 
 sentiments, all hostility to Municipal Institutions generally, and, in 
 particular, all hostility to the Municipality of Cape Town. The senti- 
 ments of so humble an individual as myself can be of little con- 
 sequence to any one except himself ; but, such as they are, they 
 are in favour of Municipal Institutions, believing them as I do to 
 be a proper extension of the principles of rational liberty. In 
 what more I have to say I shall not trench upon anything which 
 I have now conceded. Differing from the petitioners who have so 
 fitly come before the Council upon this occasion, I assert that the 
 Bill now before us contains nothing which is in the slightest degree
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. 39 
 
 inconsistent with the fullest enjoyment of everything which Her 
 Gracious Majesty meant to grant when she bestowed upon this 
 colony the boon of municipal self-government ; and I shall, I trust, 
 demonstrate beyond the possibility of denial or doubt, that the pro- 
 visions of this short and simple Ordinance are bottomed upon ob- 
 vious principles of reciprocity and fair play, and that it proposes to 
 take away from the Municipality of Cape Town nothing but a pre- 
 tence for committing an injustice. That the Commissioners should 
 not have their finances crippled, I admit. I rejoice to see and to 
 avow that the Municipality is doing good. There is now going 
 on before my very windows a good work which, if evidence of 
 usefulness were wanting, would abundantly afford it. But the 
 Municipality must do good to Cape Town at the expense of Cape 
 Town, and the question which we are assembled to determine is, 
 whether a certain given sum shall be taken out of the public purse 
 of the colony at large, and put into the private purse of the Muni- 
 cipality of Cape Town, in order to be expended in ornamenting 
 or improving the town, with which we all, as well official as unofficial, 
 happen to be connected. Representing the great body of the 
 colonists, as upon this occasion I think I do, I distinctly deny that 
 this Bill takes anything away which was ever intended to be given ; 
 and I assert as distinctly, that if this Bill be rejected, a 
 principle will be recognized which will extend Municipal 
 privilege beyond all reasonable limit, and give such bodies a right 
 to plunder the rest of the community. (The Governor, hear hear.) 
 This Bill has two objects, perfectly distinct. It proposes, first, to 
 exempt the immovable property of Government from any general 
 Municipal rate. It proposes, in the second place, to legalize the 
 payment of a reasonable rate for water supplied to that Govern- 
 ment. I implore the Council to observe that these two objects are, 
 as I have said, distinct ; that while the general rate is altogether 
 repudiated, the reasonable rule that work done, in the way of water 
 given, should be paid for, is absolutely conceded ; and that he 
 who runs and reads the Bill may see that there is no intention to 
 compel any Municipality to draw water gratis for the supply of the 
 public service. But let us take one thing at a time, and begin with
 
 4.0 ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 the general Municipal rate. Let us see what this rate is, and what it 
 is for. I am about to offer no opinion relative to what is and what is 
 not a legitimate branch of Municipal expenditure ; but I know that the 
 Commissioners and /ardmasters take an extended view of their right 
 to apply the general revenue of the town. I am not aware that 
 much distinction is taken between their right to apply the Munici- 
 pal funds in their Municipal capacity, and their right to apply their 
 private funds in their private capacity. At one time they con- 
 sidered the expediency of patronising a popular and public spirited 
 literary undertaking, which, however, had no particular connexion 
 with Cape Town ; and although the project was afterwards 
 abandoned, it was not given up I believe from any doubt as to 
 authority. My hon. friend opposite (Mr. Ross) is an advocate for 
 roads, and so am I ; and I presume he would, as a Commissioner, 
 grant money to make a road anywhere throughout the colony where 
 it seemed to be urgently required. Observe, then, how essentially 
 different this general Municipal rate is from a rate which is merely 
 a reasonable return for so much water carried to one's premises. 
 The public purse may well pay for water carried for the public 
 service. But when the public purse is called upon to contribute 
 to the general rate it is called upon to pay a tribute 
 to a fund which is wholly indefinite in its applica- 
 tion, instead of fairly paying for an article supplied. Now, the 
 petition assumes, and it has been assumed elsewhere, that as the 
 law now stands the Municipality is unquestionably entitled to 
 levy this general rate . I am not prepared, as a lawyer, to assent 
 at once, to this proposition. I will not indeed, argue this, which 
 is a question of justice and expediency, upon the technical prin- 
 ciples applicable to a mere question of law ; but I may remark, in 
 passing, that the law has been well settled in England, since 
 Magdalen College case, reported in I ith Coke, that the rights of 
 the Crown are never bound by an Act of Parliament except the 
 Crown is expressly named. Now the Crown is not named in any 
 of the Municipal Ordinances in this colony, and the conclusion 
 from this is evident. But, as I have said, I shall not rest this 
 case on technicalities. I have higher ground to take. No doubt
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. 4! 
 
 the words of those Ordinances, in reference to taxation, are 
 very general. They embrace every church in Cape Town ; 
 they embrace every school in Cape Town ; nay, they embrace, 
 if rigidly considered, the immovable property of the Munici- 
 pality itself. But as it would be cruel to tax churches 
 and charity schools, and absurd to tax the Town-house, it 
 follows that the general words of the law must receive a certain 
 limitation ; that such a limitation is required by every consideration 
 of justice and expediency ; and that the language of the Ordinance 
 should be interpreted according to its meaning and intent. Churches 
 and charities have been exempted by the Municipality. The 
 question, then, is, shall the exemption stop here ? The Commis- 
 sioners have said that it shall ; but I, upon the other hand, contend 
 that those properties which they seek to rate, do themselves serve 
 the Municipality so greatly, and are of such immediate and pecu- 
 liar benefit to the inhabitants of Cape Town, that they ought to be 
 considered as so dove-tailed into the Municipality, and so con- 
 ducive to the interest of the town, that no thought of subjecting 
 them to a further tribute ought ever to have been entertained. It 
 has been supposed that the exemption which we claim must be 
 grounded upon the Royal Prerogative. I mention this foundation 
 of an argument for the purpose of stating that I do not deem it 
 necessary to rest any weight upon it. The limits of Prerogative 
 are not easy to define, and, moreover, I am not clear whether I am to 
 look for them in Blackstone or in Voet, in the law of the Mother 
 Country which has acquired the colony, or in the Municipal regu- 
 lations of the Colony acquired. This is, perhaps, a nice question, 
 but I have not considered, and shall not argue it. But what is 
 not given as an authority may be fairly adduced as an analogy ; 
 and, unquestionably, the general rule in England is, that all royal 
 property, not merely that which is enjoyed by the Monarch 
 in his public and corporate, but that which he possesses in his 
 private and merely personal capacity, is exempted from all 
 municipal taxation. If I am to look for the illustration of this 
 subject, not to the law of England but to the civil law, I should 
 not expect to find that what the free constitution of England
 
 4.2 ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 concedes to the Sovereign power is denied to it by the slavish 
 maxims prevalent at Rome, or that the property of the Prince, 
 the dominium eminens, could be subjected to municipal taxation. 
 But the broad principle on which we rest our case is this, that the 
 funds contributed by the colony at large ought not to be diminished 
 by contributions made to particular localities. Look, for a moment 
 at England, and see what they do there in all such 
 cases. If there is one thing for which, more than another, 
 the General Government might seem properly taxable, it would be, 
 I think, for the support of that great national institution, 
 a provision for the poor. But is Government property 
 situated in any particular parish rateable for the support 
 of the poor of that parish ? No such thing. In Eng- 
 land, never since the Act of Elizabeth was such a thing heard of ; 
 and, in Ireland, into which the poor law system has been by the 
 1st and 2nd of Victoria recently introduced, all public property is 
 expressly exempted. By parity of reasoning, then, I am prepared 
 to contend that the same just and equitable principle which exempts 
 Government property from the poor's rate should exempt it also 
 from what is neither so natural nor so righteous a burthen, namely, 
 municipal taxation. But I go much farther, and I say that if fair 
 play has any influence, if reciprocity is a thing which is not to be 
 on one side, the Municipality of Cape Town ought not to 
 claim this money from the Colonial Treasury ; for I do not hesi- 
 tate to assert that, upon a debtor and creditor account, fairly 
 taken, the Municipality is greatly indebted to the colony at 
 large, and that there probably is not, either in the Mother 
 Country or in any of her colonies, a single Municipality 
 which has so much done for it by the General Government 
 which it might reasonably be required to do for itself. Take one 
 strong instance. Is the expense of a police force in any given 
 Municipality a Municipal expense, or an expense of the general 
 Government ? If principle be of any account, or practice have 
 an}- influence, I answer that the expenditure for police is properly 
 Municipal expense. I have taken the trouble to look through the 
 Acts of Parliament connected with this subject in the Mother
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. 43 
 
 Country, and I find it everywhere distinctly recognized that watch- 
 men, police, patrols, and all that class of men, are to be paid ou c 
 of the town treasury. I shall not now weary the Council by 
 quotations and authorities, but I have here the books with me to 
 prove if it be called in question, the correctness of what I say. 
 Connected with the police who look after criminals is a 
 magistracy to try them. No portion of the charge of the 
 magistracy is borne by the Muncipality of Cape Town. 
 The whole of it is provided for them by the colony at 
 large. Look also at the gaol. Boroughs in England have, in 
 general, their own gaols, their own gaolers, their own turnkeys, 
 whose charge they pay, together with the charge of supporting 
 prisoners. But the Municipality of Cape Town, not content with 
 getting all these advantages from the colony, wishes to tax the 
 benefit bestowed, that is to tax the town prison. I might enter 
 into minute calculations connected with these points and show a 
 number of other advantages, direct and indirect, which Cape Town 
 enjoys from being the seat of Government, and from having so 
 many of its local wants supplied by the Public Treasury ; but 
 without doing so, I content myself with expressing my conviction 
 that, on the foot of any acount fairly taken between Cape Town and 
 the colony, Cape Town would, upon all principles applicable to 
 such a reckoning, be found to be justly indebted to the 
 colony in between _2,ooo or ^3,000 per annum more than it at 
 present pays. It is true that the Police Ordinance does not rigidly 
 confine the services of the police within the limits of the 
 Municipality, and that the Municipal Ordinance does not 
 rigidly confine the contribution of the Municipality to the expense 
 of the police to one-half of the annual cost. But who does not 
 know that although the police may be called now to Papendorp 
 and again to Green Point, their stated services are in Cape Town, 
 and that more than four-fifths of their advantages are enjoyed by 
 the inhabitants of this place ? And are we not aware that, although 
 the Legislative Council may apportion the shares of the police 
 expenditure between Cape Town and the colony as they think 
 proper, yet that an understanding has arisen, from which it might
 
 44- ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 not be easy to depart, that the Municipality and the general 
 Government shall divide the matter equally between them ? Upon 
 this one item alone, I conceive that the general Government 
 might reasonably require from the Municipality .1,500 per annum 
 more than they at present get. If this be so, with what con- 
 sistency can Cape Town come in and crave, from the colony at 
 large, this rate which we have now in hand, a rate which 
 cannot reach, I suppose, beyond a wretched paltry pitiful 100 a~ 
 year ; a rate which it would be absurd to fight about, 
 except that a just and honest principle is always worth the 
 fighting for ? But will it be said that Municipal 
 Boards in colonies should be better off than Municipal 
 Boards at home, and, therefore, that no argument can be pro- 
 perly derived from what exists in England. I can scarcely see the 
 grounds for this distinction. But let us look to other colonies. I 
 have here, in a Parliamentary paper which I was led to consult 
 for quite a different purpose from anything connected with this de- 
 bate, a correspondence between Lord Sydenham and Lord John 
 Russell. In speaking of the Canadian revenue, Lord Sydenham 
 observes that it will speedily be improved, seeing that fhe Muni- 
 cipal Institutions to be conferred upon Quebec and Montreal will 
 relieve the general revenue from a charge of from 9 to 12,000 per 
 annum, now paid for the police of those cities, but which cost 
 those cities will thereafter bear themselves. Now, I do not 
 pretend to be a better Whig than Lord Sydenham, or to be more 
 attached to Municipal institutions than a statesman who was so 
 anxious for their introduction into his government, that he enter- 
 tained serious thoughts of resigning, because a provision which 
 he had appended to the Bill for uniting the Canadas, in 
 connection with the contemporaneous establishment of certain 
 Municipalities, was not carried through at home. For the life of 
 me, then, I do not see how what applies to Quebec should not 
 apply to Cape Town ; and why, when the Government here does 
 not go as far as Lord Sydenham went, when, instead of charging 
 the whole police expense, or nearly the whole, to Cape Town, we 
 charge only one-half, and when a number of other boons and bene-
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. 45 
 
 fits are conferred in the same way, the Municipality here should 
 continue to cry " give, give." Sir, I now come to the second ob- 
 ject contemplated by this Bill, the water rate. As I have already 
 explained, this water rate differs from the general rate. It is an 
 absolute and almost an unaccountable mistake to suppose that this 
 Bill will have the effect of compelling Municipalities to supply 
 water to Government free of charge. The intention is 
 altogether the reverse. It is proposed to legalize and re- 
 gulate the payment by your Excellency of every reasonable 
 water rate. Am I inconsistent in desiring to grant a water rate 
 when I desire to withhold a general rate ? I think not. I think 
 I have said nothing which is inconsistent with the propriety of 
 making a distinct provision for two distinct cases. The practice 
 in England can scarcely be ascertained with sufficient accuracy to 
 form a guide. Before the Act for reforming corporations, most 
 Municipalities were supplied with water through the instrumentality 
 of public companies or private Acts of Parliament. At present, 
 most of the machinery created by these private Acts has been 
 destroyed, and the duties connected with them re-annexed to the 
 various Municipal Boards, in whom are also vested the powers 
 previously reposed in the various separate boards in reference to 
 the levy of a reasonable water rate. The truth is, that when a 
 rate is not for purposes indefinite in their character ; when there is 
 an immediate relation between the thing done and payment for 
 it ; when, if you did not pay the Municipality for 
 carrying water, you should pay somebody else for doing so ; 
 a case for compensation at once arises, and the 
 claim of the Municipality may be equitably recognized. Now it 
 is not because this equitable principle is denied, but because it is 
 affirmed, and because it is proposed to confer upon your Excel- 
 lency the power of affirming it in an authoritative shape, by direct- 
 ing, in conjunction with the Executive Council, the payment of 
 every just and proper charge, that this Ordinance has been framed 
 as you now find it. It seems to have been assumed in an able and 
 elaborate article in the last Zuid-Afrikaan, that because my hon. 
 friend the Acting Secretary to Government communicated upon
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 the subject of a water rate with the Secretary to the Municipality ; 
 and because the reasonable suggestions of the former were agreed 
 to by the Commissioners, that therefore any legislative provision 
 like the present must either be unnecessary, or be intended 
 to abrogate the arrangement originally intended. Now, I am 
 not aware that the Municipality ever communicated to my hon. 
 friend their assent to his proposition. But waving that, and 
 taking it to be ascertained that such assent had been vouchsafed 
 there are two answers to be given to the remark of the learned 
 Editor. In the first place, if he had recollected when approaching 
 the end of his argument what he had commenced that argument 
 by stating, namely, that this bill extends to every Municipality in 
 the colony, and not merely to Cape Town alone, he would have 
 perceived that, although matters might have been so arranged in 
 Cape Town as to need no legislation, yet that legislation might be 
 needed elsewhere ; and, in the second place, it should have been 
 remembered that the provisions of this Bill would strengthen your 
 Excellency's hands, and enable you to carry fully out the arrange- 
 ment with Cape Town in some more satisfactory and solemn 
 way than by a few letters flying to and fro. The contract 
 with Cape Town is not intended to be cut down, and 
 I am aware of no disposition to depart from it a single 
 inch. I have now said almost all that it occurs to me to 
 say upon the subject of this Bill. Indeed I look upon it 
 that the principles for which I have contended have been recog- 
 nized by the Municipality itself. When a resolution to exempt 
 public property from the Municipal rate was submitted to a meet- 
 ing of Wardmasters, it was carried by a majority of thirty against a 
 minority of seven. It is true, indeed, that when this resolution 
 came afterwards before the Commissioners, it was then rejected by 
 a small majority, the suffrages being seven to five. Some Commis- 
 sioners were absent when the vote was taken whose sentiments are 
 supposed to be in accordance with the resolution ; but however 
 that may be, I appeal to the judgment of the Wardmasters, a 
 judgment which my learned friend, who wrote the article which I 
 alluded to just now, will be amongst the last to disregard, and
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 deduce from the determination of the lower house of our Town 
 Parliament an argument for me and against him. Now 
 it is said that those who were against the imposition 
 of the rate originally, as well Commissioners as Wardmasters, 
 have had a new light let in upon them, and all, it seems, have 
 conjoined in the petition against the present Bill, from which 
 proceeding, it is a little curious to observe, the learned editor 
 draws the conclusion that they are ripe for a Representative 
 Assembly. But here t must confess that, as a friend of representa- 
 tive government, I cannot discern in the fact that some respectable 
 gentlemen come here to petition us not to do what, elsewhere, they 
 said it was right to do, and who now call that white which the 
 the other day they called black ; who tell us not to do a thing 
 which they were very ready to do themselves, any of those 
 symytoms which indicate a peculiar ripeness for representa- 
 tion, if according to Montesquieu, virtue be the principle of 
 democratic government, and if, according to moralists in general, 
 honesty be an essential part of virtue. But adopting the idea 
 of my learned friend, and supposing for a moment 
 that this colony possessed a Representative Assembly, I say that 
 the idea of submitting to such a demand as that which the 
 Municipality of Cape Town makes (and be it remembered that 
 Cape Town is the only Municipality which has made it), would 
 be scouted without ceremony. If I had the honour, in such an 
 assembly, to represent GraafF-Reinet or Colesberg, does anybody 
 think that I should silently permit the colony to be saddled with 
 such a charge ? No, I should say, " Gentlemen Municipalers, you 
 are doing very well ; I rejoice in your success ; go on and prosper ; 
 but do not dream that my constituents will ever allow you to put 
 your hands into their pockets in order to increase the elegance or 
 promote the comfort of your own town. What you do, do quickly, 
 do well, but above all things do it at your own expense." And I 
 protest, Sir, I am almost tempted to imagine that the learned editor, 
 in his indefatigable zeal for representative government, calls upon 
 this Council to oppose this Bill in order that the colony may see 
 how unreasonable, how unjust, how attentive to local feeling, how
 
 4.8 ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 negligent of the interests of the colony at large, this Council 
 is ; and in order that the inhabitants in others quarters may see how 
 necessary it is to save themselves from plunder by sending their 
 own representatives to look after their own interests. With these 
 remarks I confidently leave the Bill to its fate. 
 
 At a subsequent stage of the same day's proceedings, the Attor- 
 ney-General said : 
 
 J wish to say a few words in explanation, and a few words in 
 reply. With the exception of two of my honourable friends, 
 whose opinions I always hear with great deference (Messrs. 
 Breda and Ebden), I do not perceive that any difference of 
 opinion exists in the Council. It is conceded by my hon. and 
 learned friend (Mr. Cloete) and my hon. friend opposite (Mr. 
 Ross) that the principle of this Bill is good ; nay, that the 
 principle of it is so obviously good that it is quite superfluous to 
 legislate upon the subject. My hon. and learned friend thinks that 
 the law is so clear against the Municipality that we ought to go to 
 law, and then not merely defeat the claim, but defeat it, of course, 
 with costs of suit. Now I differ from him here. I say that it is 
 better not to go to law, which is tedious and expensive, but to go, 
 upon a question of this kind, at once to legislation. And observe 
 that my hon. and learned friend admits that if the decision of the Court 
 should be for the Municipality and against the Government, it would 
 then become imperative to resort to such a law as that now before the 
 Council. Now, when once it is admitted that the judgment at 
 law is not to be conclusive, I confess I see no reason for not resort- 
 ing in the first instance to the swifter, more economical, and more 
 satisfactory course of declaring how the law shall stand. This is 
 a question of what is just and unjust, right and wrong. It is not 
 so much a question of what the law is, as of what the law ought to 
 be. It is not, therefore, to be technically treated. If the Muni- 
 cipality ought, in justice, to have this rate, then, if the law refused 
 it, I should pass a law to give it to them. I admit that I may be 
 justly obnoxious to one criticism of my learned friend ; that, I 
 mean, connected with the time at which I rose to speak ; but to 
 the correctness of another of his criticisms I do not subscribe ; and
 
 ON PUBLIC BUILDINGS EXEMPTION BILL. A.Q 
 
 I think that in treating of it he has betrayed some slight confusion 
 of ideas. In the same breath in which my learned friend spoke 
 about places of worship and the like, and seemed to recommend 
 that they should be embraced in the Bill, he advanced 
 a proposition about the dominium eminens with which such 
 property could have no possible concern ; for surely the dominium 
 eminens is not vested in churches or the like. But my learned 
 friend has, in truth, said nothing about the dominium eminens of 
 government which has any force. He has stopped short, and 
 drawn no legal conclusion. He merely says that the dominium 
 eminens is in the Crown. Who doubts that ? But the question is 
 not whether the dominium eminens is in the Crown, but whether 
 the dominium eminens in the Crown is legally subject to Municipal 
 taxation. About the fact of ownership there is no controversy, 
 and we have not advanced one inch towards the solution of the 
 real question now before us, by ascertaining that the Crown is the 
 owner of our public buildings. Passing now to the remarks of my 
 hon. friend, the chairman of the Municipality, I find that he re- 
 commends Government to repair, as he did, to the Municipality, 
 and that he has no doubt but that Government will experience all 
 that liberality and kindness which, under similar chcumstances, he 
 experienced himself. But how is Government to go ? My humble 
 friend is a substantial character, composed of flesh and blood. Go- 
 vernment, however, according to my friend opposite (Mr. Ross) 
 who told us so very energetically upon a late occasion, is nothing 
 but " a phantom." Now, perhaps, a visit from such a phantom 
 might fright the town from its propriety, and it is well to run no 
 risks. But how is Government, which is made up of many per- 
 sons, and constitutes a very complex idea, to drop in and make a 
 morning call on the Municipality ? How is this complex idea to 
 do what the Muncipality Ordinance provides with respect to 
 inhabitants who complain of the valuation or assessment ? Besides, 
 to tell the truth, I do not think that Government should be called 
 upon to approach the Municipality in the attitude of a suppliant. 
 This is certainly a mere matter cf etiquette, not medical etiquette, 
 nor military etiquette, but Municipal etiquette ; but I do consider
 
 CQ ON PUBLIC BUILDINGS EXEMPTION BILL. 
 
 that Government cannot well take the course which my hon. 
 friend has recommended. Coming now to my hon. friend opposite 
 (Mr. Ross) it will be observed that his opposition to this Bill is con- 
 nected with the water rate, where, as I have explained, this Bill can 
 do no Municipality any harm ; and, moreover, connected with a 
 water rate relative to the Ordnance Department. Now we have 
 here no more to do with the supply of the Ordnance than with 
 the supply of the moon. This Bill touches only property belonging 
 to the Queen in her Colonial Government, which the Ordnance 
 property does not. The Military and the Municipality must settle the 
 question some other way. Both parties, I understand, are very con- 
 fident of success in any legal proceedings which may be resorted to, 
 and with respect to two such litigating parties, it would be cruel to 
 prevent them from proving the pleasures of a lawsuit, an enjoyment 
 which neither my hon. and learned friend nor myself would dream 
 or a moment of denying them, for if not ourselves in the battle, it 
 would, as lawyers, be a pleasure to us to see the fight. Let it be 
 remembered that whatever the claims of the Ordnance may be (and 
 I cannot think that they have been so extravagant as has been re- 
 presented here to-day), the Colonial Government does not require 
 the Municipality to supply as much water as they may choose to 
 want or waste, and pay nothing for it. We are willing to 
 pay reasonably for such a quantity as we reasonably require. But 
 it is said on the part of the Municipality, " We have every confi- 
 dence in your Excellency ; but some other Governor may hereafter 
 refuse to the commissioners all compensation whatsoever." But if 
 my hon. friend who made this remark (Mr. Breda) will but put on 
 his spectacles again, he will see that this Bill compels no Munici- 
 pality to supply water at what the Government shall consider a 
 reasonable rate ; that this Bill leaves the right of every Munici- 
 pality to give and withhold water at pleasure exactly as it stands at 
 present ; that it does not pretend to define the limits which dis- 
 tinguish the arbitrary dominion over private property from the 
 responsible administration of what is entrusted to the Municipality 
 exclusively for public purposes ; that if the Municipality be bound 
 to supply water to Government they are bound by some other law
 
 ON IMMIGRATION. 
 
 than that now before the Council, and that all that the present 
 Ordinance does is to provide the means of legally paying for 
 what one receives and the other supplies. Whether the Munici- 
 pality owns the water of this town, as my hon. friend opposite owns 
 a bale of goods in his store, and may sell or not as it thinks proper, 
 is not a question which this Bill was framed to settle. With refer- 
 ence to the remarks of the hon. friend beside me (Mr. Ebden), 
 who seemed to be a little at a loss for reasons to justify his oppo- 
 sition to this Bill, I need merely remark that the supply of water 
 to the military, and all matters thereunto connected, have no more 
 connexion with the question before Council than they have with 
 the Emigration question ; or with the question of Usury laws ; or 
 with any other question on which my hon. friend has, at any time, 
 delivered his views in this room. I submit that there never was 
 a greater destitution of argument than that which has been exhibi- 
 ted in this discussion, and I again call upon the Council to pass 
 this Bill. 
 
 ON IMMIGRATION. 
 
 [Legislative Council, March 26, 1842.] 
 
 ATTORNEY-GENERAL : Having given these subjects some little 
 consideration, and having never before had an opportunity of 
 expressing my sentiments upon them, at least at any length, I ven- 
 ture to offer myself to the notice of your Excellency and the Council 
 thus early in the debate. Allow me, Sir, before proceeding farther, 
 to record my perfect approbation of the tone and temper with 
 which my hon. friend (Mr. Ebden) has introduced the motion ; a 
 tone and temper in every respect fit, and proper, and worthy of 
 all commendation. It is with pleasure that I bestow this com- 
 mendation ; but when I have done so, I feel myself constrained 
 (and it is with pain I make this statement) to withhold all 
 
 E 2
 
 ON IMMIGRATION. 
 
 further praise. For, considering the note of preparation which 
 has been so long sounded, the mode in which your Excellency's 
 despatches have, in certain quarters, been denounced, and the 
 withering exposure to which the various positions therein contained 
 were to be subjected, I must say that I have been utterly amazed 
 at the total absence of minute investigation, the complete des- 
 titution of those details so essential to the satisfactory discussion of the 
 subject, and the singular paucity of everything like practical argu- 
 mentation, which have been discovered, upon this occasion, by my 
 hon. friend. Appreciating, as I do, his abilities, and knowing, as 
 I do, his industry, I cannot but conclude that he had good reasons 
 for not abandoning the region of lofty generalities, ard that he did 
 not attempt to go down into the depths of this question, because 
 he was conscious that such a course would be unsafe. Sir, there is 
 nothing easier than to deal in abstract propositions ; but to deal in 
 abstract propositions is as unprofitable as it is easy. My hon. friend 
 may lay down one hundred thousand indisputable general truths 
 regarding labour, and wealth, and colonization, but those truths are 
 not worth the breath which is consumed in uttering them, unless 
 they are brought down from speculation, and embodied in some 
 sober, rational, well-considered working plan. This practical 
 aspect, most assuredly, the propositions of my hon. friend have 
 not assumed ; nor do I find that he has . advanced anything, 
 even theoretically novel ; and I do not think that any 
 individual who listened to his plausible address will carry away 
 with him one new idea to increase his stock of speculative know- 
 ledge, much less one definite notion respecting the mode in which 
 that speculative knowledge may, in this colony, be carried into 
 action. In what I have to say I shall endeavour to consider the 
 question more practically. And for the practical purpose of the 
 vote this day, it might be sufficient to demonstrate, that were we 
 to admit everything for which my hon. friend contends, the 
 advantages of English labour, and the splendid remuneration which 
 awaits that labour on these shores, we have yet no means to intro- 
 duce it ; and, moreover, that my hon. friend has not pointed out the 
 source from whence such means may be derived. Why, as practical
 
 ON IMMIGRATION. 53 
 
 men, should we engage in long debate about what might be 
 expedient or what might not, in case we possessed instead of a 
 deficient a surplus revenue ? Without denying that there is a want of 
 labour in this colony, without denying that this colony is a place in 
 which the labourer may come and do well, I should yet esteem it 
 idle to affirm these propositions without some reasonable expecta- 
 tion of carrying them into effect. But still as the subject of English 
 Emigration is now thrown in all its length and breadth before us, 
 and as it is one of undeniable interest and importance, I deem it 
 right, sworn as I am to consult for the public interest to the best of 
 my ability, and believing, as I do, that many rash and ill consider- 
 ed judgments had been formed upon the question, to go into it 
 with some particularity, and to give to this Council and 
 to the colony my sentiments, such as they are, in some 
 degree at large. Let us, Sir, in the first place, settle the 
 natural and proper order of colonial expenditure. Throw 
 back your eyes upon the time when Van Riebeek first 
 settled at the Cape, with his humble band of two hundred settlers. 
 What were the first objects to which these people were called on 
 to devote their money ? I shall, of course, be sanctioned by the 
 common sense of every man who hears me, when I say, that it 
 would have been madness for them to devote it to the encourage- 
 ment of immigration, how desirable soever it might have been to 
 augment their little number. A colony commenced is a country 
 commenced, and the first great duty of both must always be 
 to establish and maintain those social institutions without which 
 civilization must perish, and anarchy and barbarism make man a 
 savage once again. There must be a form of government ; a pro- 
 vision for the administration of justice ; magistrates to punish 
 crime ; educators to prevent it ; ministers to afford the consolation 
 of religion ; and a number of other appliances, too obvious 
 to need being mentioned, and too indispensable to have 
 their paramount utility denied ; amongst which may be 
 reckoned those establishments referred to by the Secre- 
 tary of State in the despatch which your Excellency read a por- 
 tion of to-day, and in which this colony is lamentably deficient,
 
 54 ON IMMIGRATION'. 
 
 proper gaols for securing criminals. Who will deny that these 
 things are the first and most essential ends to which the public 
 revenue can, in any community, national or colonial, be possibly 
 devoted, and that until these ends are decently provided for, no 
 other outlay, however tempting, can legitimately be made ? Now, 
 with reference to those all-important matters, how do we, in this 
 good colony of the Cape, stand just now ? Alas ! Sir, after retrench- 
 ment has done its best ; after an economy which may almost be 
 termed hunger-bitten, has been at work ; after we have canvassed 
 the annual estimates in the most critical spirit possible, squeezing 
 here a little ; clipping a little there, paring in one place, and 
 rasping in another, and endeavouring to save, as much as in us lies, 
 what have we been able to accomplish ? What splendid surplus 
 have we succeeded in securing, of which we may set about to 
 argue the most expedient application ? Sir, am I not borne out 
 in saying that all we have been able to shew is, one day a miserable 
 balance of 90 in favour of the Treasury, and the next day an 
 absolute deficiency ? With these facts staring us in the face ; with 
 apparent inability to meet even the ordinary and everyday expen- 
 diture of the colony, what on earth can be the use of our affirming 
 a series of speculative resolutions which may, perhaps, enunciate a 
 number of most unquestionable truths, but which do not enunciate, 
 nay, which do not even pretend to enunciate that without which 
 those truths are absolutely meaningless, a practical, detailed, and 
 well considered plan for raising the supplies ? We may no doubt 
 employ our minds upon this as upon any other abstract topic, as an 
 intellectual exercise ; but for any legislative purpose that I can see 
 at present, my hon. friend might as well set us to consider the origin 
 of evil, or the perpetual motion, or the squaring of the circle, or 
 the famous question of the schoolmen, " whether a chimera buzzing 
 in vacuo, could devour second intentions," as upon 
 this same matter of English labour, considering the state 
 in which it is left by his resolutions and his speech. But I shall 
 concede a little in order to get on. I shall suppose that, by means 
 of the sky falling, or, what is perhaps not much more probable, the 
 revenue rising, or in some other unexpected way, we get our heads
 
 ON IMMIGRATION. 
 
 a little above water, and have something over and above the ordi- 
 nary expenses of the government. I shall suppose that, by a still 
 severer application of the principle of retrenchment than any which 
 has yet been made, a proceeding which I shall not object to 
 see tried, being, I trust, as willing as my neighbours to submit 
 with resignation to what I may personally be called upon to suffer,- 
 we may taste, as legislators, the sublime delight of having a surplus 
 to dispose of. What, then, shall be done with it ? Recollect, Sir, 
 that I am not speaking of funds so ample as to em- 
 brace a number of advantageous objects and thus make 
 selection needless ; and if such funds be not at your dis- 
 posal, if you be under the necessity of weighing opposite utilities ; 
 if of two admitted good things one only can be taken and the 
 other must be left ; if the claims upon you be in conflict, and you 
 can only satisfy one class of those which are preferred, I say that, 
 looking to experience, to reason, to what has worked well in other 
 places, and to what is likely to work well here, I come unhesita- 
 tingly to the conclusion that the encouragement of public works 
 is the outlay next in order to the supply of those social wants 
 already spoken of, and that, before you devote your means to the 
 furtherance of immigration, your system of internal communica- 
 tion should be rescued ftom its present wretched state ; for a 
 country without roads to circulate its produce is a body without 
 arteries to circulate its blood. If, as I have said, our means make 
 it impossible for us to accomplish both the opening of our 
 roads and the realizing of extensive schemes of immigration ; 
 if it be imperative to chose between the two, I take my 
 stand upon the good hard road at home, and leave my hon. friend 
 to take his foreign flight. Think, I beseech you, Sir, what the 
 effect would be of connecting Cape Town with the colony by a 
 road over the flats ; of rendering accessible one of the finest grain 
 districts in the colony, or the world, by opening Mostert's 
 Hoek ; of bringing Beaufort and its produce right down to Mossel 
 Bay ; of facilitating for the neighbourhood of the Sneeuwberg the 
 means of transport to the sea. But when we have not sixpence to 
 spend on any one of these noble undertakings, and when, for want
 
 56 ON IMMIGRATION. 
 
 of them, the supply of labour that we have is not one-half as pro- 
 ductive as it might be ; what on earth, I ask again, is the use of call- 
 ing on us to aErm a series of speculative resolutions about emigration, 
 and above all, of calling upon us to affirm the monstrous proposition 
 that the colonial revenue should be charged with the expense of such a 
 project? Sir, with these works remaining to be done ; with no money 
 to do them ; with barely enough of means to carry on the Govern- 
 ment ; our controversies respecting what should be done with a 
 surplus revenue, if we had it, are about as idle, as the controversy 
 of the two Jacobins who in England, at the outbreak of the French 
 Revolution, went to loggerheads about which of them, after the 
 confiscation of all aristocratic property, should be the owner of 
 Woburn Abbey. I might stop here ; but having come so far, I am 
 not unwilling to go a little farther. As a practical question, the 
 motion of my hon. friend is met by showing that, instead of having 
 any means for his favourite object, we have no means to effect objects 
 of a much more pressing character. I shall assume, however, that 
 Government is kept going j that public works are reasonably 
 attended to ; and that we have still some revenue to spare. Post- 
 poning immigration to the supply of our social wants ; ranking it 
 second even, as this colony is situated, to public works, I yet 
 willingly admit that whatever means we can command after 
 those two great primary expenses have been borne, is fitly 
 applicable to the cost of introducing labour. My hon. friend? 
 I see, agrees with me in this observation, however much he 
 may differ from some of the other remarks which I have made ; 
 and, in truth, it is a matter upon which there cannot I suppose 
 be any difference of opinion either in this room or out of it. But 
 the question still arises, where is this supply of labour to be 
 sought } My hon. friend says, unhesitatingly, from Great Britain, 
 and from Great Britain only. His resolutions are all directed to 
 this end, and his speech was an exposition of what he regards as 
 its unspeakable advantages. Here, however, there are two in- 
 quiries which may, I think, be rationally made, and which deserve, 
 in my opinion, very grave consideration. Is it clear, in the 
 first place, that the English labourer will suit the colony so
 
 ON IMMIGRATION. 57 
 
 wonderfully ? and, in the second place, is it clear that the 
 colony will so wonderfully suit the English labourer ? Now, 
 without disparaging at all either the South African colonist or the 
 English workman, I hesitate to yield my assent to the proposition 
 that they are formed to meet, either by nature or habits. I doubt 
 very much, considering the hands in which such capital as is applic- 
 able to the support of agricultural labour in this colony is now 
 held, whether English labour would be relished. The question is, 
 not what sort of a labourer my hon. friend would like, but what 
 sort of labourer the Dutch Boer, as he is generally found, will like j 
 and notwithstanding the public meetings in Cape Town and 
 Graham's Town may vote for English labourers, and that no 
 dissentient voice be heard thereat ; notwithstanding that, in the 
 course of common conversation, the Beers, in general, speak favour- 
 ably of the introduction of every sort of labour ; yet I have erred 
 egregiously in my own limited investigation, and I am, moreover, 
 egregiously misled by many persons, much more informed upon 
 the subject than I can possibly pretend to be, if in his heart of 
 hearts the genuine Dutch Boer does not look upon English labour 
 with an unfavourable eye. Sir, the common conversation of the 
 colony may take what course may appear to be convenient, but if 
 we could get below the surface, if, for instance, my excellent, and 
 much respected friend, the judge now on circuit, cculd just send 
 this question about English labour as a collateral issue to every 
 Dutch jury whom he may have occasion to charge, to be decided 
 solemnly upon their oaths, I should be astonished beyond measure 
 if the great majority of verdicts would not be against its introduc- 
 tion altogether, or, at least, until every means of getting workmen 
 had been tried, and tried in vain. Sir, it is idle to call this feeling 
 a prejudice, and to assert that it is the nature of prejudice to 
 disappear, for there are prejudices too deeply implanted to be 
 readily eradicated ; and to disregard prejudices upon a question of 
 this kind would, in practice, lead to errors in legislation akin to 
 those which would be induced in machinery, by proceeding upon 
 the abstract principles of Dynamics, and estimating friction 
 and resistance as of no account whatever. The Boer and the
 
 58 ON IMMIGRATION. 
 
 labourers do not speak the same language ; their way 
 of working is different ; their way of living is dif- 
 ferent ; all their manners and customs are dissimilar. The Boer 
 has some feudal, or rather, perhaps, allodial, notion of his own 
 importance as a landholder, and he does not like to have it intimated 
 to him by a bare-breeched fellow, brought in the other day at 
 government expense, that he is looked upon as an absolute igno- 
 ramus. The Boer with English labour is like Pistol with Fluellen's 
 leek. It may be forced upon him, but it goes against his stomach. 
 His appetites and his digestions do not agree with it. Now, we 
 must make up our minds to work with the instruments we have. 
 I have not heard it openly advocated, and no man in this Council 
 or this colony, or indeed, in his senses, will ever entertain the 
 notion that we should get rid of these Boers ; that, without, 
 perhaps, setting our English immigrants to exterminate them as the 
 Jews did the Canaanites of old, we should yet buy them out, or worry 
 them out, or in some way or other send them all about their business. 
 Nothing so mischievous and absurd as this is dreamt of, and with 
 our Boers as they now are, and as they are likely to be for some 
 time yet to come, to pour English labour into Dutch farm-houses 
 would be to pour new wine into old bottles with the Scriptural 
 result, the bottles would be broken, and what would become of the 
 wine ? God knows ! If the correctness of these views be doubted 
 by any one, I refer him to a journey through the colony, and I am 
 rather disposed to think that had my hon. friend been able to carry 
 out the intention which he had at one time formed, and to have 
 gone the present circuit, he would have seen enough to induce him 
 to modify considerably some of his opinions. Observe, Sir, that I 
 am not denying that there is in this colony a market for labour. That 
 much employment may be given and obtained, I entertain no doubt. 
 My hon. friend at the end of the table (Mr. Field) can set me 
 right if I err in stating that in the course of twelve months he 
 could apprentice out, in the colony at large, not less than 20,000 
 liberated Africans, in places where they would themselves be very 
 
 comfortable, and where their masters would be glad to get them 
 
 Mr. Ross : If they could get them for nothing.
 
 ON INMIGRATION. 59 
 
 ATTORNEY-GENERAL : What I have now said, if well founded, 
 shows that there is room for labour ; but, as my hon. friend 
 opposite (Mr. Ross) has just intimated by his interjectional remark 
 that labour must be cheap, another sort of labour altogether 
 from that which my hon. friend beside me (Mr. Ebden) proposes 
 to import. For, if anybody imagines that 20,000 British labourers 
 could be got rid of with the same facility as I have supposed in 
 connexion with the 20,000 liberated Africans, he is, I think, most 
 woefully mistaken, since the Boer, generally speaking, would rather 
 have the African for nothing than the Englishman for nothing ; 
 and since, although the Boer might take the Englishman for nothing* 
 the latter won't work for such wages. And here, Sir, I cannot but 
 advert to the unmeasured terms in which coloured labour has been 
 denounced to-day by my hon. friend. I am by no 
 means prepared, upon this subject, to go as far as 
 he does, nor even to subscribe to the more moderate opinion 
 of the Commercial Advertiser, a print which my honourable friend 
 has justly panegyrized, and of which the articles, which I always 
 read with pleasure, possess, I admit, both soul and body. I con- 
 ceive that both my hon. friend and the able writer to whom I have 
 alluded have unduly disparaged the aptitude of the African for 
 labour. My hon. friend has described the labourers recently 
 arrived as " savages," and has indulged in some other epithets 
 equally unsavoury. That the liberated African has no agricultural 
 skill, I allow ; but upon the other hand, how much of the agricultu- 
 ral skill of the English labourer must be absolutely useless here, 
 for who could attempt to introduce the husbandry of Nor- 
 folk into the wilds of Southern Africa ? The one has, 
 indeed, knowledge to acquire, but the other has, what is more 
 difficult, knowledge to unlearn, and without entering either into 
 physics or metaphysics, or investigating the extent of natural 
 capacity, I do not hesitate to say (misled, it may be, by the 
 fervent sympathy which I have ever entertained for a race harm- 
 less and long oppressed) that the African is able to do his work 
 when his employer knows how to set him to his work, and that 
 the skill and industry, as labourers, of the coloured classes in this
 
 60 ON IMMIGRATION. 
 
 colony exhibit as fair a ratio when compared with the skill and 
 industry of their employers, as is usually presented by the two 
 classes of master and servant in most other places. It may, I 
 consider, be reasonably hoped from the spread of that education 
 which is now going forth throughout the colony, that the rising 
 generation, both of masters and men will go on gradually 
 improving together ; the intelligence of the one will naturally follow 
 the intelligence of the other ; and talk as we may of stupidity and 
 sloth, I do believe that there is enough in the head and in the arm of 
 the coloured labourer (when the master who is to direct him is 
 found to exert his own faculties, and to lay his own shoulders to 
 the wheel), to draw out what I believe do exist in this colony, 
 the materials of prosperity. I have been thus considering the 
 contrast, of which we hear so much, between the English labourer 
 and the African, and have urged some reasons for questioning 
 whether, in this colony, situated as it is, that contrast is so clearly in 
 favour of the English labourer as some persons imagine. But there is 
 one respect in which the two classes are very strikingly contrasted, 
 and which, were I to omit, I should be justly chargeable with 
 leaving out the part of Hamlet from our drama. Admitting, for 
 the sake of argument, that English labour is an article to the full 
 as excellent as my hon. friend supposes, it must still be admitted 
 that the article is expensive. Will the Englishman work for the 
 wages of the African ? Certainly not. No one thinks of such 
 a thing. Do you hope, then, by all the preaching in the 
 world, to proselytize the Boer to the opinion that he 
 could pay for any labour, however superior, higher wages than he 
 pays at present, and escape destruction ? Do you think you will 
 persuade him that notwithstanding what it costs him for want of 
 roads to carry his produce from home to market, and the small 
 profit which is left when this expense, with other heavy charges, 
 are deducted, he could still afford to pay a first class labourer high 
 wages for inspanning and outspanning, and all that loose and 
 desultory sort of country work of which alone he has any notion, 
 and which alone, in many instances, perhaps his circumstances 
 will permit? No, no ; believe me that though many Boers will say
 
 ON IMMIGRATION. 6l 
 
 that English labour may answer other people, or, at all events 
 that it may answer the colony to bring in men who, if industrious, 
 will rise from the ranks, and thus contribute to augment the public 
 wealth, yet they will all admit that such labour would not answer 
 them ; that it is above their price ; that they would be 
 ruined by resorting to it ; and that, while it is doubtless 
 very good for those who can afford it, they, for their 
 own part, would no more think of discarding their coloured people 
 to have their places supplied by costly English labour, than they 
 would think of discarding their duffle jackets in order to clothe 
 themselves in costly English superfine broadcloth. Thus much in 
 connection with the expense of British labour while actually in the 
 colony. Look now at the expense connected with its original 
 introduction. I rather think that the outlay necessary for such a 
 purpose is for the most part very much underrated. When we 
 consider the machinery required ; boards at the other side of the 
 water to collect emigrants ; boards at this side of the water to 
 receive them ; paid agents in both places, and agents well paid too, 
 to say nothing of the great expenditure in transport, and the cost of 
 subsistence in the colony until such time as the labourers should be 
 suitably provided ; it appears to me that upon an average, _ 12,000 
 per annum would not suffice to introduce into this colony, annually 
 more than I 50 labourers with their wives and families. 
 
 Mr. EBDEN : If you said 1,000, I should assent to your pro- 
 position. 
 
 The ATTORNEY-GENERAL : There certainly is an important dif- 
 ference in our calculations. Mine is founded, as I have stated, upon 
 the presence of wives and of families of the usual extent. It may 
 be that the fair sex has its advocates, and that the wives will be 
 considered quite as good as the husbands ; and some may be fond 
 of children, and maintain that the offspring are the best of all. 
 But taking into account the various expenses which I have already 
 glanced at, and awaiting from my hon. friend an exposure of my 
 error, I retain, for the present, the opinion which I have expressed, 
 and conceivotthat j'l 2,000 will not locate throughout this colony 
 a greater number than 150 of English labourers fit for immediate
 
 62 ON IMMIGRATION. 
 
 work, together with their wives and children. Sir, there is 
 another consideration which, in connexion with this argument, 
 seems to me to be deserving of some weight. You have 
 in this colony a labouring population already. That population 
 is, generally speaking, a coloured population. Is there nothing 
 here to raise a doubt as to the expediency of looking to Eng- 
 land, instead of Africa, for an addition to that coloured labour ? Ob- 
 serve, the question is not between English labour or none ; for 
 then the introduction of the former might be a matter of 
 necessity. But the question is, when white labour and coloured labour 
 are both before you, should you supplant the coloured labour which 
 you already have by the importation of labour of an opposite des_ 
 cription ? I am far from dogmatically asserting that labourers from 
 England, from Germany, and from any part of Europe from which 
 they can be obtained, ought to be unhesitatingly excluded, merely 
 because our present labouring population is of another species ; but 
 still I have my fears that the importation of such labour will pro- 
 bably issue in the additional inflation of the white, and in the ad- 
 ditional degradation of the black. By the introduction of Euro- 
 pean labour we run the risk of nourishing a feeling of 
 caste even in the very working class, of creating an aristocracy, 
 the foulest and most disgusting of all imaginable aristocracies, the 
 wretched aristocracy of skin. White labour is doubtless the best 
 labour where all the mass of labourers are white. But when, 
 no human legislation can bring this state of things about, it may, 
 I think, be fairly argued that the mixture of coloured people 
 with coloured people may be the most expedient mode of improv- 
 ing your existing labour market ; for the new comers cannot possibly 
 look down upon those who are already here, and those who are 
 already here, belonging always to the same race and often to the 
 same tribe with the new comers, never dream of regarding their 
 sable brethren as their inferiors. Now, if there be any weight at 
 all in what I have been throwing out, it appears to me that we 
 ought to pause long, and consider well, before we. give to the question 
 does English labour suit the present circumstances of this colony 
 an affirmative reply. But let us cast those considerations to the
 
 ON IMMIGRATION. 63 
 
 winds, let us concede the perfect fitness of English labourers for 
 our service ; and let us next see whether, although they are sure 
 to suit us, we should be likely to suit them ? The contract to be 
 entered into is one which, like matrimony, requires the consent of 
 two parties. Can we, then, look to obtain the English labourer's 
 consent ? I doubt it. By no means blind to the amount of destitu- 
 tion now in England ; well aware of the misery and suffering which 
 prevail not merely in the manufacturing, but in some of 
 the agricultural, districts of that country ; perfectly convinced that 
 there are in England numbers whose condition would be 
 immeasurably bettered by a removal to the Cape, since, in 
 such an event, the appalling spectre of absolute want could dog 
 their steps no more ; I question still whether we can hold out 
 inducements of a character sufficiently influential to attract ex- 
 tensive emigration to these shores. The question is not, whether 
 an Englishman would not be better off here than he is at home. 
 This is admitted. But the question is whether he would be better 
 off here than in other quarters which are assiduously bidding for his 
 services ; and unless, in fact, we draw the long bow ; unless we 
 borrow the aid of imagination, and represent this colony as a land 
 flowing with milk and honey, a land whose stones are iron and 
 out of whose mountains they may dig brass ; it will be impossible 
 to convince the Englishman that he will not be better off in Canada 
 where land for settlement is readily obtained ; that he will not be 
 better off in the United States, where wages are extremely high ; 
 that he will not be better off in Australia, where both these advan- 
 tages exist, than he would be in this colony, where settlement is by 
 no means easy, and wages are very moderate indeed. Am I wrong in 
 this ? Suppose my hon. friend were himself to visit England upon 
 an emigration tour (and no man in the colony is so well qualified as my 
 hon. friend to make such a tour effectual), and let us imagine that 
 he is able to collect, somewhere or other, a crowd of the unem- 
 ployed about him, to whom he proceeds to depict the blessings 
 which await the British labourer in this colony. " Come," he 
 exclaims, " Come, to the Cape. We want labour there, and will 
 reward it amply. There can be no doubt of this, for a petition,
 
 64. ON IMMIGRATION. 
 
 signed by 1,050 inhabitants, has said it, a series of resolutions of 
 the Legislative Council moved by me have said it, and such say- 
 ings are not to be gainsaid. You are just the men we want. 
 South Africa waits to welcome you to her teeming bosom, which, 
 cultivated by your labours, is ready to rejoice and blossom like the 
 rose." " Ah," they would reply, " this is poetry. Pray postpone 
 that sort of thing, and tell us plainly what we shall get by going 
 there ; deliver yourself like a man of the world." " The world,'* 
 exclaims my hon. friend, 
 
 " AJico for the world, and worldlings base; 
 I speak of Africa, and golden joys !" 
 
 But still the question must be answered about the board, and 
 the lodging, and the wages ; and my hon. friend will at length be 
 driven to declare that the English labourer who comes to the Cape 
 will live in a pondok, have as much mutton as he can eat, with a 
 plentiful scarcity of vegetables, and sixpence a day. I speak of 
 sixpence a day, which is about ten dollars a month, because how- 
 ever it may be in towns and in the immediate neighbourhood of 
 towns (from which place, I presume, the civil commissioners 
 have generally taken the data which have found their way into the 
 Blue Book), I believe the average rate of agricultural labour through- 
 out the western districts of the colony is rather under ten dollars 
 a month than over it. Now when a man may be carried from 
 England to Canada for 2 los., and if he dislike the rather reduced 
 scale of wages there, may cross over into the States, where he is 
 sure of an American dollar a day upon the public works ; when 
 the Australian colonies, with immense means and immense 
 machinery, are moving heaven and earth to obtain emigrants ; and 
 when, so great are the obstacles to emigration, a single year of 
 drought in those regions has such an effect in England as almost 
 to baffle all the efforts which are made, I doubt whether, without 
 some attempt to deceive and declude the people (a thing which 
 would be improper if it were possible, and impossible if it were 
 proper), we can rationally hope, in the midst of such colonial com- 
 petition, to attract much of the notice of the emigrating classes.
 
 ON IMMIGRATION. 
 
 Ten rix-dollars a month arc not emigration wages. It is to be 
 hoped that we may be able to afford more hereafter ; but until 
 that time shall come, we have, I fear, no help for it but patience ; 
 for we must not do evil that good may come, and by highly 
 wrought description brig people here, who would at once 
 discover any imposition which had been practised upon them, and 
 burthen ourselves with a discontented and repining mass of men, 
 who, if 5,000 of them were landed to-day upon the jetty, would 
 resort, within a week, to either mendicancy or plunder, and form 
 a curse and not a blessing. I see no way in which such emigrants 
 could be kept in anything like temper except by the Government 
 here resorting to something like the old allowance system 
 in England, and making up, though the civil commissioners of 
 the respective districts, the difference between the wages which 
 the Boer can give and the wages which the emigrant will grumble 
 greatly' if he does not get. How different, Sir, in these respects, 
 are the circumstances of the liberated Africans ? Few things indeed, 
 have struck me so much, since I came to this colony, as the success 
 which has attended the introduction of these inoffensive people. 
 What the English emigrant would turn from with disdain, are, to 
 them, incalculable blessings. They come here with no exaggerated 
 notions, and, finding all their simple wants supplied, are happy. I 
 fully concur in the sentiment which here and elsewhere your 
 Excellency has more than once expressed, that there is not a colony 
 in Her Majesty's dominions so well suited for the reception of the 
 persons redeemed from bondage as this colony of the Cape ; and 
 feeling that what the English would consider a comparative evil, 
 the African must feel to be a positive good, I am not prepared to 
 say that any scanty pittance, which we may be able to afford 
 for the introduction of labour, could be better employed 
 than in bringing in the class to whom I have alluded. You will 
 here observe, Sir, that the English emigrant whom I have spoken 
 of, is the English emigrant brought here at the public expense, to 
 work as a mere ordinary drudge. Far different will be the situation 
 of the superior English emigrant, employed to act as a bailiff or 
 overseer, whose services are always valuable, and who has good 
 
 F
 
 66 ON IMMIGRATION. 
 
 prospects in this colony. But such an emigrant as I have now 
 supposed does not crave to be carried here for charity. He will 
 either pay his own passage, or he will contract with an employer 
 who will pay it for him, and such persons have come into the 
 colony, and will continue to come into the colony, without your 
 assistance, drawn hither merely by the fact that they are wanted, 
 and that, being wanted, they will be adequately paid. But as 
 regards persons of the other class, mere day labourers, who are 
 destitute of all pretension to act as superintendents, and who must 
 partake the toil of the common coloured population, or starve, I 
 am not prepared to regard their introduction with anything like 
 the same complacent feeling. The experience which I lately had 
 of the prospects held out, at this end of the colony, to some English 
 labourers who were wrecked here by the Prince Rupert, was not 
 by any means encouraging, and may be referred to in part supply of 
 proof of some of the positions for which I have contended. Hitherto 
 I have spoken chiefly if not altogether of the western districts 
 of the colony. I confess I take a view very different indeed of 
 some portions of the eastern. You will not imagine, Sir, that I 
 am about to draw invidious distinctions, or to deny that the Dutch 
 Boer is a character to the full as estimable as the English settler. 
 But Albany is English ; its language is English ; its habits of acting 
 and thinking are English ; it has some idea of how English labourers 
 expect to live, and of the wages for which English labourers alone 
 will work ; and circumstanced as it is, and as it promises to be, 
 presents a field for the gradual introduction of British labourers 
 which, for my own part, I cannot but look upon as decidedly in- 
 viting. But even in Albany the British labourer, if I be not 
 mistaken, is required for agricultural purposes alone. The great 
 staple of that district, the great hope of the colony the 
 growth of wool, does not demand a supply of English labour ; and 
 would, I believe, be injured by having much of that sort of 
 labour charged upon it. The Fingo and the Mantatee herd as 
 well as the Englishman ; are generally as trustworthy ; and 
 work upon much more reasonable terms. None but a madman, 
 I suppose, would set a band of Englishmen at forty dollars
 
 ON IMMIGRATION. 67 
 
 a month each to tend sheep, which can be very 
 well taken care of by a fellow in a kaross, who 
 serves for a year for a cow or a few goats. Indeed, I question 
 whether there is any colony in the world where the wool trade 
 will bear the expense of English labour. We saw by the evidence 
 of Mr. Lord of New South Wales, which was copied the other day 
 into the Commercial Advertiser, that that great wool grower is of 
 opinion that Australian wools will suffer in the English market, in 
 case some labour cheaper than the British is not provided for the 
 sheep ; and that the introduction of hill coolies from India (a 
 succedaneum which he had himself tried, and which he strenuously 
 recommends to others), is necessary to save the trade in question 
 from decay, if not destruction. He beseeches his fellow-colonists 
 in Australia to abandon the idea of importing shepherds from 
 England, as they connot, in the long run, afford to pay them ; and 
 duly considering these things, it will be absurd, I think, for us to seek 
 to encourage our Cape wool by resorting, for its management, to 
 a kind of labour which" we are under no necessity of employing 
 and a kind which those who have tried it are anxious 
 to replace even by that which must be brought from a great 
 distance, and which, when introduced, is not superior to that 
 which we have ready to our very hands. But although Albany 
 does not, I imagine, want shepherds from England, it does, I believe, 
 want agricultural labourers ; and I should rejoice if a scheme could 
 be devised of giving to this quarter of the colony a gradual supply. 
 Sir, it is probable that my hon. friend will say, in reference to 
 what I have hitherto been stating, that my main and principaj 
 objection to his resolutions is connected with the supposed want 
 of means to carry out their object ; that, if this great obstacle 
 could be overcome, most of the others which have been 
 adverted to could be readily get over ; and that of means we mus t 
 be held to have abundance. Referring, as he does, to Lord John 
 Russell's instructions to the commissioners, he will bid me 
 look to the principle on which they are based, and speak of 
 want of means no more. Sir, I am not ignorant of that 
 principle. Some ten years ago, or thereabouts, Mr. Edward
 
 68 ON IMMIGRATION. 
 
 Gibbon Wakefield woke one morning, and found that the world 
 had, until that moment, been all in the wrong respecting the true 
 theory of colonization, and the principles upon which prosperity, 
 whether national or colonial, could alone be secured. " Keep up," 
 said he, " the price of your waste lands, so as both to condense the 
 people you have, and to create a fund ; and then, with the fund 
 thus created, bring in more people." Of a theory which has 
 obtained great popularity, and which has proselytized many able 
 and eminent statesmen of all parties, I speak with great respect, and 
 venture to hint objections with the utmost diffidence. But, to tell 
 the truth, I question somewhat the soundness of the Wakefield 
 principle in general ; and, at all events, I am pretty clear that it is 
 a principle quite inapplicable to this colony. How it can be 
 expedient, anywhere, to take from the first settlers in a colony, who 
 seldom are great capitalists, a great portion of whatever capital 
 they have, in order to bring troops of labourers into that 
 colcny, it is difficult to discern. By one and the same 
 process you import the labour and export the capital .which 
 was to set that labour moving. Raising the price of 
 waste land, you check the tendency to spread ; but that a new 
 country will best develop its resources by confining its population in 
 point of room, or, in other words, by making it as like an old 
 country as possible, may, I conceive, be reasonably doubted. 
 America did not grow great in this way ; nor has Australia 
 thriven thus. Applied with moderation, the system may unques- 
 tionably work well ; but there seems in many quarters a tendency 
 to press it much beyond all reasonable limit. Be these things, 
 however, as they may, the Wakefield principle is quite inapplicable 
 to the Cape. You have now no waste lands worth mentioning fit 
 to sell. You are, as a colony, 150 years old. For the whole five 
 millions of acres of debatable land which you alone possess, I 
 mean land of which it is debatable whether it be fit for settle- 
 ment or not, you probably could not obtain, if it were put up for 
 sale to-morrow, more than some 12 or 15,000 pounds in all. With 
 this paltry sum, what could be accomplished ? Why, just nothing. 
 No doubt, indeed, if you could open roads ; give free access to the
 
 ON IMMIGRATION. 69 
 
 lands now waste ; make them valuable by connecting them with 
 markets or ports for shipment, you might realize much more. Who 
 for instance, would now purchase from you the Cape Flats ? But if 
 you began a road to Stellenbosch from this, the Cape Town 
 end, and then sold the land on either side, erf by erf, and lot by 
 lot, as you gradually proceeded with the work, a large sum would, 
 in all probability, be ultimately obtained. Is it not, then, putting 
 the cart before the horse ; stifling your hopes of large land revenue ; 
 killing the goose that may hereafter lay the golden eggs, to seek 
 to divert every penny of public revenue which you can scrape 
 together to the one object of introducing English labourers, 
 English labourers who, when they arrive, find no adequate capital 
 in the hands of Government to give them employment upon 
 public works ; and for want of public works, find no adequate 
 capital in the hands of private persons to afford them those 
 wages which they are entitled to expect ? If we want labour 
 in this colony, we want capital as much ; and neither of these 
 things can, without the other of them, accomplish anything con- 
 siderable. I believe, indeed, that our colonial capital is increasing. 
 I am not one of those who cry out that the colony is retrograding, 
 The leading article in the Commercial Advertiser of this morning 
 shows that such a cry is altogether groundless. We are, I 
 think, going forward ; slowly, I admit, still we are going 
 forward. Under these circumstances I cannot suffer myself 
 to sink in the slough of despond. The solid foundations 
 of colonial prosperity are laid amongst us, and time, I confidently 
 trust, will rear aloft the superstructure. But some one, my hon. 
 friend perhaps, will say that we should strive to move more rapidly. 
 Let this be granted, but how shall we increase our speed ? This, Sir, 
 is a hard question, and in my waking moments, I could not hope 
 to answer it at all. But were I to shut my eyes to everything 
 about me, and indulge in a day-dream, I could imagine sundry 
 very pleasant things. I could imagine that the Secretary of State 
 had sent us word that he had wiped off our paper money 
 debt, and that it, and all its memorials, were consigned for 
 ever to the tomb of all the Capulets, the commissary's chest.
 
 TO ON IMMIGRATION. 
 
 1 could imagine that, having done us this signal service, his lord- 
 ship, acting upon the well-known maxim that one good turn de- 
 serves another, had at once proceeded to bestow on us a second 
 favour, and had granted the two per cent, additional customs duty as 
 an answer to our prayers. When our finances had been thus in 
 some degree recruited, I could imagine that the colonists, anxious 
 to secure those two great objects, public works and 
 immigration, began to clamour (remember I am only dreaming, 
 Sir,) for the imposition of such an additional taxation on their pro- 
 perty, as would afford to the treasury a clear and permanent 
 surplus of, let us say, ten thousand pounds a year. I could imagine 
 that, upon the strength of this ten thousand pounds a-year, we 
 borrow two hundred thousand pounds at five per cent. ; 
 place 1 00,000 in the hands of a Board of Public Works ; place 
 the other 1 00,000 in the hands of a Board of Immigration ; pro- 
 viding thus two powers which would work reciprocally into each 
 others hands ; the Board of Public Works securing employment 
 for the labourers imported, pending their absorption into the gene- 
 ral service of the colony, and the Board of Emigration supplying, 
 by their imported labourers, the means of having the public works 
 efficiently accomplished. Under these circumstances all these 
 resources of the colony are called forth, and it starts to run 
 its course rejoicing. But while I am gazing on this delight- 
 ful vision, if any practical man will give me a thump 
 upon the back, and ask me what I mean, I shall look extremely 
 foolish. Do I think that the Secretary of State will feel him- 
 self at liberty to wipe off" the paper debt ? Sir. I don't 
 think it. Do I think that the two per cent, so long delayed, can now 
 be reasonably hoped for? Sir, I don't think it. Do I think that 
 the colonists, however they may seem, by speech or silence, at our 
 public meetings, to have their hearts fixed on the objects which 
 have been described, will tolerate a tax in order to carry out these 
 noble projects ? Sir, I don't think it. Speaking costs little ; silence 
 costs less ; but taxation (to which after all both roads and emigra- 
 tion must at last come round), would cost much more than either 
 the speakers or the auditors would, for an instant, think of giving.
 
 ON IMMIGRATION. J I 
 
 My dream is now told ; destined, I fear, like other dreams, to go 
 by contraries ; but visionary as it is, it may be that if the fates 
 were favourable and we only posessed the necessary go and 
 spirit, there might, after all, be something in it. At all events, I 
 am sure it involves a plan more practical in its nature than any 
 which my hon. friend has this day propounded. For my hon. 
 friend, Sir, as I before remarked, has propounded no plan whatever. 
 He tantalizes me by describing a good which he does not teach me 
 how I am to attain. He places me on Pisgah, but it is only to 
 behold what I seem destined not to enjoy. 
 
 The wide, th' unbounded prospect lies before me, 
 But shadows, clouds, and darkness rest upon it. 
 
 Upon the whole, then, I can see no use whatever in affirming 
 any resolutions relative to Immigration ; for what is so childish as 
 to be announcing propositions, and then doing nothing towards their 
 realization ? I have, as was my duty, spoken my mind freely upon 
 this important subject. But I am misunderstood if I am supposed to 
 look upon the colony as an ungrateful field for capital and industry. 
 The nature of the discussion in which I have been engaged has 
 naturally led me to advert to the unfavourable, rather than to the 
 favourable side of our affairs. But I believe that this colony has 
 many capabilities well deserving of being worked ; that it may 
 become rich in wool and rich in agriculture ; and that it is even 
 now travelling onward to comparative success. I question if there 
 be in any other colony a better place than this for the industrious 
 man of moderate capital. Come here with a thousand pounds 
 or even half of it ; make up your mind to rough it a 
 little for a time ; and although the Boer is slow 
 to sell his farm, he will give you the run of as many 
 sheep as you think proper for a very trifle, and you can scarcely 
 fail of being rewarded with reasonable success. Such things will 
 prove the germs cf our colonial prosperity, and a gradual growth 
 is even now going on. The Cape is not one of those speculative 
 colonies, at the pinnacle of prosperity to-day and in the depth of 
 despondency to-morrow ; kept up by the influx of successive capi-
 
 72 AT THE ANNUAL MEETING, SOUTH AFRICAN PUBLIC LIBRARY. 
 
 talists, and incapable of standing self-supported and alone. Our 
 state, I believe, is sound and healthy. We must not endanger that 
 state by attempting to achieve impossibilities ; nor has your 
 Excellency the power, even if you had the inclination, to Gawterize 
 this colony by a lavish but unauthorized expenditure. I have, 
 in conclusion, only to add, that if, our urgent wants being satisfied, 
 we had still the means to try the great experiment of English 
 immigration, I should recommend and not oppose the trial. But 
 being, as we are, totally without such means, my counsel is, to 
 obtain as much of a cheaper sort of labour as we can, and wait for 
 better times. 
 
 AT THE ANNUAL MEETING, SOUTH 
 AFRICAN PUBLIC LIBRARY. 
 
 [April 30, 1842.] 
 
 After the delivery of the usual annual address, a vote of thanks 
 to the committee was passed, and the Hon. W. PORTER, being 
 called upon to reply on behalf of the committee, rose and said : 
 
 Our excellent chairman has just asked me, whether or not I 
 have a word to say on the part of the committee. I had not 
 expected to be called upon in this way, because my worthy friend 
 opposite (Mr. Stein) who is particularly named in the resolution, 
 in his capacity as treasurer, happens to be, as we all know, a 
 committee man as well, and therefore it might fairly have been 
 concluded that the duty of acknowledging the compliment conferred, 
 would have devolved upon his shoulders. But as my good friend 
 with a modesty which I am happy to recognize in any Scotch- 
 man cannot be prevailed upon to rise, I shall proceed to offer a 
 few remarks, and a very few they shall be, in connection with our 
 meeting here to-day. Sir, I conceive, for my own part, and I have 
 no doubt whatever that I speak the universal sentiment of all 
 present, when I say, that our anniversary assemblies in this room 
 are not so much intended to allow us to hear certain accounts
 
 AT THE ANNUAL MEETING, SOUTH AFRICAN PUBLIC LIBRARY. 73 
 
 read, or to ascertain the honesty or accuracy of those to whom 
 we entrust the management of our pecuniary interests, since we 
 may be perfectly assured that everything will be correctly done 
 without our auditing. But one great and leading end of our 
 assembling surely is, that we may have an opportunity, from time 
 to time, of hearing such discourses as that with which all of us to- 
 day have been so visibly delighted, discourses which no one can 
 hear, understand, and treasure up, without going home a wiser 
 and a better man. I feel that I shall have the approval of every 
 lady and of every gentlemen who hears me, when I state that the 
 subscribers to this Library, and the public in general, are much in- 
 debted to my reverend friend, Dr. Adamson, for what he has said to 
 us to-d^jy ; and if there ever were a time during which,for any reason 
 whatsoever, that zeal for the noble cause of literature and science, 
 which at all times distinguishes our chairman, was turned into other 
 channels, and was withheld from actively assisting this institution, 
 I the more rejoice to see that those reasons operate no longer, 
 and that he is here filling a position which, perhaps, no man 
 in this colony is so well fitted to adorn, and instructing the 
 public mind in those high, and I will venture to term them, 
 holy things which belong to intellectual culture. Were I able I 
 should willingly say something to increase the impression which 
 our chairman has produced. But I am not able ; and this reminds 
 me of an anecdote relative to Burke, with which you are all 
 probably familiar. When the great orator first stood for Bristol, 
 the candidate who stood with him on the same interest was a 
 mercantile man, one more familiar with figures of arithmetic than 
 with figures of speech. When Burke had terminated that magnifi- 
 cent display, which still remains on record as one of the happiest 
 efforts of his genius, and his fellow candidate was called forward to 
 address the electors, he simply said, " Gentlemen, you have all 
 heard what Mr. Burke has said, and to everything Mr. Burke has 
 said, I say ditto." Now, situated as I am, I doubt whether the 
 best thing I could do would not be to adopt the language of the 
 Bristol man, and say, " Gentlemen, you have all heard Dr. Adamson, 
 and to all Dr. Adamson has said, I say ditto." But, Sir, 1 will
 
 74 AT THE ANNUAL MEETING, SOUTH AFRICAN PUBLIC LIBRARY. 
 
 venture to trespass a moment longer upon the patience of the 
 meeting, while I advert to one or two topics, so fruitful of new 
 thought, which you have brought before us. If I pass over in 
 silence any one of those topics, it is not because it was unmarked ; 
 but it seemed to me that the second to which you have adverted 
 was particularly gratifying and important. You have spoken of the 
 effect which a common interest taken in this Library must naturally 
 have in creating and preserving in our local community a spirit of 
 harmony and union. That it must have a tendency to produce 
 this effect is obvious, and it exemplifies the propriety of that great 
 rule of life and practice, that men who differ upon certain points 
 should, if possible, cordially unite in some good points where 
 they agree ; for the result is, that they are knit together by their 
 co-operation where they are agreed, and that asperities are re- 
 moved from the points on which they differ. Disagreeing, as 
 many of us may do, amongst each other, I yet rejoice to 
 believe that in all Cape Town and its neighbourhood there 
 is no disagreement about this Library ; that we all con- 
 sider it an honour to the colony ; that we all are 
 zealous for its increased prosperity ; and that we all consider 
 it an object which should excite the interest of every man 
 who has a head to think and a heart to feel. Elsewhere, perhaps, 
 we may not be able to avoid some little what shall I call them ? 
 not bickerings, only friendly argumentations, but here no discord 
 enters, and we only meet to try how best we may unite to carry a 
 great and good work out to its perfection. I have, I think, heard 
 Sir George Napier speak of a battle in the Peninsula, which he 
 was present at himself, and though I now forget the name of it, 
 some of my military friends present will probably remember it, in 
 which, at a particular crisis of the engagement, each of the previously 
 contending parties, as if by common consent, ceased firing, 
 French and English both went down in peace to a little river 
 which ran between their lines, and the men who just before had 
 been in deadly conflict drank in amity out of the cooling stream. 
 In the same way, sir, it is always, I think, a pleasant sight to see 
 men, who face each other in the ranks of civil contest, forget, for a
 
 AT THE ANNUAL MEETING, SOUTH AFRICAN PUBLIC LIBRARY. 75 
 
 time, all their hostilities, and drink together of that pure stream of 
 literature which here flows for their indiscriminate refreshment. 
 Sir, pursuing these desultory remarks, I would observe that the 
 way in which you described the feelings which must rise in 
 every reflecting mind, on entering such a Library as this, was surely 
 very just and true. It is, indeed, a great thing to have, in the 
 strong expression of Bonaparte which you adopted, five and twenty 
 centuries looking down upon you from these shelves. Except some 
 specimens in the British Museum, I have not, any more than you, 
 sir, seen anything of those ancient monuments and tablets which 
 Egypt has inherited from an antiquity immersed in darkness. But 
 the reference which you made to them has brought to my mind a 
 striking passage from Sir Thomas Browne. He represents the 
 traveller as wandering amazedly amongst the Pyramids, whilst 
 Oblivion reclines upon them as if upon her throne, and when in- 
 terrogated by the stranger as to who built those wondrous works, 
 and what their purpose, " She mumbleth something, but what she 
 saith, he heareth not." How strikingly do these gigantic monu- 
 ments evince the nothingness of man's merely material labours. 
 There, indeed, they stand. But the names of their authors 
 have perished. They furnish no record. They are vanity 
 altogether. But who knows not that the frail papyrus of 
 the neighbouring Nile, enriched by having inscribed upon 
 it the thoughts of the immortal mind, continues to tell 
 its story from age to age, although the mighty Pyramids have 
 long been dumb. Sir, I have been led further than I had antici- 
 pated. I conclude by thanking the meeting for the honour which 
 they have conferred upon the committee ; by thanking you, Sir, for 
 the good service which you have done this day to the Cape Town 
 public and to this Library, and by expressing my trust that the 
 support which has heretofore sustained this institution will not 
 hereafter be withheld ; that instead of languishing for want of 
 proper aid, it will have infused into it fresh vigour, and that it 
 will go on from strength to strength, and from light to light, shin- 
 ing as the nature of all light is to shine more and more, unto 
 the perfect day.
 
 "j6 ON IMMIGRATION. 
 
 ON IMMIGRATION. 
 
 [Legislative Council, March 23, 1842.] 
 
 The ATTORNEY-GENERAL said : I am unwilling to allow this 
 proposal to spend ^20,000 on European Immigration to be put 
 to the vote, without offering some remarks upon it, and I 
 could wish that the forms of the Council were such as to require 
 the giving of some previous notice when resolutions of this 
 important nature are intended to be moved. My hon. friend will 
 not imagine that I am blaming him for following a general practice, 
 or that I impute to him the smallest intention to take any person 
 by surprise. But still it is inconvenient that one should be called 
 upon to advance, upon the moment, to the discussion of extensive 
 and, it may be, rather difficult questions ; and, since forwarned is 
 forearmed, I would always like to have a little time for deliberation. 
 One comfort, however, clearly is, that this resolution connects itself 
 with a number of topics which we have had served up in this 
 Council on so many different occasions and in so many different 
 ways ; which we have first considered, and then set to to consider over 
 again ; that it may be safely prophesied that none of us will ever 
 forget them till our dying day. My hon. and learned friend, with 
 a proper regard for his auditory, has not travelled much into those 
 matters ; and I shall, upon this occasion, strive to imitate his 
 prudence. With reference to one most material point, I shall only 
 say that I have been much misunderstood if I am considered to 
 have expressed any hostility, either in this Council or out of it, to 
 a fair and reasonable trial of European Immigration. The nature 
 of my somewhat lengthy observations, made upon a late occasion? 
 led me to examine the respective claims of colonial roads and 
 English labour, as competitors for our lamentably small resources ; 
 and in giving my reasons for regarding roads as the more press- 
 ing exigency of the two, I was necessarily led to examine
 
 ON IMMIGRATION. 
 
 the positions upon which the advocacy of an adverse principle 
 was based. The wretched condition of our revenue led me 
 farther to argue, that neither with regard to roads nor immigra- 
 tion could we rationally hope to effect anything of a practically 
 important character, or do more than affirm an abstract principle. 
 In the advocacy of these views, it was necessary for me to show 
 distinctly why I differed from those who would postpone public 
 works to immigration, and why I argued with those who, if there 
 must be a choice, would postpone immigration to public works_ 
 Pursuing such an argument, I was naturally led to subject th e 
 declamatory allegations in favour of the paramount advantages of 
 immigration to a somewhat stricter investigation than that to which 
 they are generally submitted ; and to shew, by contrast, the superior 
 claims possessed by public works, as connected with colonial outlay. 
 But I never said that if we happily possessed a surplus revenue, 
 if, after consulting the ordinary necessities of government, we yet 
 had sums to spend, and if, after some attention had been paid to 
 the improvement of our means of internal communication, we still 
 had got some revenue to spare, I never, I repeat, said that the expe. 
 riment of introducing English labour would not be a fair experiment 
 to try, or that it would not be fit and proper to bring in whatever 
 number of immigrants might in the first instance be deemed advis- 
 able, reserving to ourselves the right of pausing in our course 5 
 should we find that the thing did not succeed. Upon principle, 
 therefore, I am not opposed to the motion of my hon. and learned 
 friend. I may have doubts, indeed, whether you could not apply 
 better the ^20,000 in question. I may have doubts, moreover, 
 whether so very small a sum as ^20,000, could accomplish anything 
 ot consequence in the way of immigration. But, as I have said 
 with the general principle of the resolution I am not at war. To 
 this resolution, however, my hon. friend, the Acting Secretary to 
 Government, has made two objections, both of them, in my humble 
 judgment, being sound and valid. One of these objections is matter 
 of form, and the other of them matter of substance. The matter of 
 form arises from the irregularity of carrying a money vote which 
 is not submitted to the Council by the Executive Govern-
 
 ON IMMIGRATION* 
 
 ment ; and the matter of substance is the uselessness, im- 
 propriety, and impolicy of carrying a money vote opposed to 
 the express directions of the Secretary of State. When, on a 
 former occasion, the matter of form, as I have termed it, came 
 incidentally before this Council, I abstained, I remember, from 
 giving an opinion upon it ; but, since then, I have bestowed some 
 reflection on it, and I have come to the conclusion which I have 
 just expressed. It appears to me that the Secretary of State, in 
 making the strong remarks which he did respecting the case of Col. 
 Smith, was well warranted by the principles of colonial legislation, 
 and was not without the support of an analogy arising out of the 
 rules and customs of the House of Commons. I am not disposed 
 unduly to limit the powers and privileges of this Council. Let 
 these be as broad as you can reasonably extend them. But 
 broad as they may be, it will scarcely be contended that they are 
 constitutionally wider than those of the " awful Commons of Great 
 Britain." Now in a book of great authority on these matters, " Dwarris 
 on Statutes, " which I happen to possess, and which my hon. and 
 learned friend has had for some days for another purpose, it is laid 
 down, if I remember rightly, that, whatever may be, in an abstract 
 point or view, the inherent power of the House, yet that a rule of 
 long standing and of inflexible application requires that all money 
 votes should originate with ministers. It is, I believe, considered 
 to be a fatal objection to such a vote, that it is not submitted 
 by the Crown. Those who are the responsible administrators of the 
 revenue are presumed to know what money they require ; and the 
 House will not grant money which they, the administrators, do not 
 deem necessary for the public service. But quitting the point of 
 form (which there might readily be found a formal way of getting 
 out of) there comes the other matter, the matter of substance. 
 Consider what you have already done with regard to the de- 
 votion of revenue to colonial purposes, and what Her Majesty's 
 Government has said, in connection with your doings. Surely, as 
 long as the Secretary of State is compelled to tell you that no 
 public works can be commenced in this colony,until what he 
 considers to be an honest colonial debt (he may be wrong
 
 ON IMMIGRATION. 79 
 
 in so considering it, I wish he could hear my hon. friend 
 opposite (Mr. Ross) upon that subject, but, unhappily he cannot 
 until, I say, what he considers an honest colonial debt, I 
 mean the paper money, be wiped off, it is clear that we cannot 
 make a grant like that required by my hon. and learned friend, 
 without acting >n direct opposition to the injunctions we have re- 
 ceived. This is a vote of money to pay the interest of an intended 
 debt ; the Secretary of State has repeatedly directed that no fresh 
 debt or new disbursement shall be allowed, pending the destruction 
 of the paper money ; and, under these circumstances, I cannot see 
 how any official member of Council can support a resolution 
 directly contravening the reiterated directions of Her Majesty's 
 Government. How, then, can this resolution receive your 
 Excellency's sanction ? and how, even if sustained by the 
 unanimous concurrence of the unofficial members, can it possibly 
 be productive of any practical result ? It is to be observed, 
 however, that the resolution, although negatived, will yet appear 
 upon our minutes, and thus, perhaps, achieve the principal 
 object which its supporters have in view ; but it might, after all, 
 be worth consideration whether some resolution might not be 
 framed, which might command more general approbation than can 
 be challenged by the present, say, for instance, a resolution be- 
 seeching the Secretary of State to give a favourable consideration to 
 the subject now in view. Whether, indeed, such a resolution 
 could have any effect upon the mind of the Secretary of State, 
 considering 
 
 SECRETARY TO GOVERNMENT : That, in fact, was the substance 
 of Col. Bell's resolution. 
 
 ATTORNEY-GENERAL : My hon. friend is quite correct. We have 
 already appealed to the Home Government, and they have not felt 
 themselves at liberty to accede to our requests. That there remains 
 any reasonable room to hope, it would be difficult to assert. The 
 change in the Colonial Office is not likely to work any change in a 
 determination long formed and constantly declared. But your Ex- 
 cellency will, of course, when transmitting the minutes, apprise 
 Lord Stanley of the line of conduct which you have pursued, and
 
 8O ON IMMIGRATION. 
 
 of the reasons by which you were Impelled, leaving it to his Lord- 
 ship to adopt such measures as he may be able to devise for recon- 
 ciling an expenditure for public works and immigration in this colony 
 with the ultimate liquidation of our unhappy paper debt. 
 
 At another stage of the same debate the ATTORNEY-GENERAL 
 said : Your Excellency and the Council will, [ am sure, agree 
 with me that it is right and fitting that questions of a grave 
 nature, involving as well the privileges of this Council as the 
 wants of the Colony, should receive nor merely a full, but, at the 
 same time,, a calm consideration. If we once allow ourselves to 
 be so nettled by any of the incidents of debate -as to lose our 
 tempers, we may be quite certain that, as well upon one side as the 
 other, we shall insensibly allow a species of party spirit to begin to 
 operate ; and when that feeling is once permitted to enter, delibe- 
 rate discussion is completely at an end. Desiring then to address this 
 Council as if it were a jury, packed neither by plaintiffnor defendant, 
 but bound to do impartial justice, I wish to see how we stand with re- 
 gard to the resolution of my hon. and learned friend,taken in connexion 
 with the despatch of the Secretary of State. To begin with the 
 beginning, then, I shall add a word or two upon what I have already 
 designated the point of form, by which I mean the regularity of a 
 money vote moved, not by the Governor, but by some ordinary 
 member of the Council. Upon this subject [ have already inti- 
 mated my opinion that it is more constitutional, more consonant 
 with the usages of Parliament, and more agreeable to the reason of 
 the thing, that money votes should originate with, and be submitted 
 to, this Council by the responsible Government of the Colony. 
 For this opinion I have already given my reasons. Those reasons 
 are not the terms of the despatch of the Secretary of State. 
 Reading that despatch not as a lawyer (for I do not concur 
 with my hon. and learned friend in thinking this a legal 
 question), but, as far as I- am qualified so to do, as a man ot 
 common sense, I cannot maintain that his Lordship, in that des- 
 patch, asserts distinctly any general rule, or does more than express 
 a particular prohibition. He does not say that no money vote 
 whatever should originate except by your Excellency, but only
 
 ON IMMIGRATION. 8 I 
 
 declares that money votes for the remuneration of services must so 
 originate. The subject of that despatch was a vote moved by an 
 unofficial member in consideration of services real or supposed ; 
 and in declaring that sort of vote to be irregular, the Secretary of 
 State does not necessarily set his face against all money votes what- 
 ever proceeding from the same quarter, for non constat but there may 
 be applications of public money other than in the way of rewarding 
 services, which his' Lordship might consider this Council competent 
 to introduce. Upon the construction of the despatch in question, I 
 therefore differ from my hon. friend (the acting Secretary to Govern- 
 ment) and agree with my hon. and learned friend. But while I thus 
 declare that I do not read this document as laying down, in terms, a 
 general rule, I am at the same time prepared to contend that it 
 affords an analogy strongly corroborative of the reasoning which goes 
 to show that such a general rule exists. It only says, indeed, that 
 services of individuals, until recommended for reward by the 
 Governor, should not be rewarded by this Council. But will any 
 reasonable man undertake to point out any good reason for restrain- 
 ing this Council from votes of money for rewarding services, which 
 will not be a reason equally good for restraining this Council from 
 votes of money for any other object ? It will not be argued that the 
 rewarding of public services is not a legitimate application of 
 a portion of the public revenue. We all know that it is ; 
 and the Secretary of State, by merely objecting to the 
 form in which the thing was done, clearly implies that there 
 was another form in which it could have been done 
 properly. But I go farther, and I say that if there be 
 one application of the public money which the Council generally 
 might be considered as peculiarly qualified to make, it would be an 
 application of the public money to reward services which, having 
 been rendered to the public, this Council has the best opportunity 
 of estimating. It is curious that my hon. and learned friend ( Mr 
 Cloete) in arguing upon the usage of the House of Commons, ha s 
 instanced this very case of public services to be rewarded, as afford- 
 ing obviously the strongest grounds for maintaining the expediency 
 of passing money votes not originating from the Crown. Now
 
 82 ON IMMIGRATION. 
 
 here in your stronghold, upon the very question where you 
 think, and properly, that the advantage of such a right as 
 you contend for is most obvious, the Secretary of State 
 has expressly and admittedly decided against the right. Under 
 these circumstances, I leave it to this Council to determine 
 whether his Lordship's despatch, although in its terms it does not 
 affirm a general rule, does not afford good reason for inferring that, 
 in his opinion, such a rule obtains. Conceding, therefore, to 
 my hon. and learned friend, that he has demonstrated that the 
 Secretary of State speaks only of one given class of money votes, I 
 call upon him to shew the grounds for his conclusion that certain 
 other classes of money votes, passed in the same manner, might 
 consistently meet his Lordship's approbation. We now come again 
 to the usage of the House of Commons. I am glad that the 
 general accuracy of my recollection, as far as the passage in Dwarris 
 is concerned, is confirmed by my hon. and learned friend. That 
 author, in fact, neither affirms nor denies the strict right (a 
 question which it would be idle to contend about, for 
 upon such a subject what is right considered separate from 
 settled usage ?) but he does, I think, speak of an invariable 
 practice. Probably since the accession of the House of Hanover 
 no contravention of that practice has taken place. The 
 House, even supposing it to possess such an inherent power, 
 has deemed it right to impose a restraint. The representatives 
 of the people do not go to St. Stephen's to spend the people's 
 money, but to save the people's money ; not to open the public 
 purse, but to draw the strings of it as tightly as they can. Every 
 school-boy in England knows that the blessings of representation 
 are, not that members generally may vote any money for this 
 purpose or for that, or prompt the Executive to fresh expenditure, 
 but to keep in check the Government, which the constitution 
 regards as quite ready enough to spend freely, particularly on 
 themselves, and thus to secure a due economy. My hon. 
 friend beside me (Mr. Ebden) has instanced Prince Albert's 
 Pension. Now this is a case in point for me. Ministers 
 proposed a vote of 50,000 ; Col. Sibthorpe (I think it was) moved,
 
 ON IMMIGRATION. 83 
 
 as an amendment, a vote of 20,000 ; and the then Opposition 
 carried the amendment. This was paring down and not swelling up ; 
 diminishing and not adding ; and thus it comes quite within my 
 principle. My hon. friend, however, seems to consider that the 
 power of subtraction necessarily implies the power of addition ; 
 but this, though true of arithmetic, will not hold, I think, in 
 politics. My hon. and learned friend (Mr. Cloete) has spoken of 
 cases in which, deferring to the wishes of the House, the Ministry 
 have augmented some intended grants to meritorious public ser- 
 vants. There may have been such cases. But those cases are not 
 to the point in dispute ; for the moment the Minister gives way 
 the difficulty is, at once, removed. I can very well conceive an 
 Opposition member taunting the Chancellor of the Exchequer with 
 the inadequate reward which he proposes for some brilliant services. 
 I can conceive him as expressing his astonishment at the new-born 
 economy of the right hon. gentlemen opposite, who was always 
 profuse where economy would be proper, and always parsimonious 
 where liberality was demanded, and his disgust at the miserable 
 vote, so unworthy of this great country (as they always call England 
 in her own House of Commons) with which Ministers proposed to 
 recompense such services as had been rendered by A. B. I can 
 conceive all this, and a great deal more than this ; and I can con- 
 ceive the Chancellor of the Exchequer giving way, and adding o 
 his vote. But if the Chancellor of the Exchequer will not give 
 way ; if he remain obstinate, and say that he has neither the means 
 nor the inclination to increase the vote, I can conceive no course 
 for the House to pursue except to address the Queen, a measure 
 which no Minister in his senses would, under such circumstances, 
 drive them to the necessity of adopting. And see the obvious and in- 
 telligible principle on which the rule in question rests. The Ministry, 
 for the time being know what money there is, and what they have 
 to do with it. It is for them to make the two ends meet, and hard 
 enough they sometimes find it to bring the two together ; and good 
 God, are people who have comparatively no means of knowledge, 
 and who, above all, have no responsibility ; are such people, I say, 
 to purchase popularity by voting so much money for this purpose 
 
 G 2
 
 84. ON IMMIGRATION. 
 
 and for that, regardless, it may be, of the confusion and embarrass- 
 ment to which such a course may lead ? I need not pause to apply 
 these remarks to the circumstances of this Council, or to argue, at 
 any length, that this Council ought not to arrogate the power of 
 voting money not asked for by the Executive Government. This 
 Council may urge the Executive to propose such and such a vote, 
 and they may, if the Executive refuse, address Her Majesty, praying 
 her to order the Executive to propose such and such a vote ; but to 
 pass that vote directly, I consider to be unconstitutional and inexpe- 
 dient. Col. Smith's case occurred before my arrival in this colony, 
 and I am not aware as to how, exactly, the vote in his favour was 
 proposed and carried. But I remember to have seen my friend, 
 Col. Bell, on more than one occasion, when some addition to the 
 estimates was suggested from the other side of the table, take first 
 a pinch of snuff, and then his pen, and make the alteration asked 
 for. In actual practice the matter which we have been discussing 
 may not be of any vast importance ; for, if the official members can 
 outvote the unofficial, it is of very little consequence whether the 
 motion is lost by reason of its being irregularly introduced, or be- 
 cause it is considered to be inexpedient in itself. If, on the other 
 hand, the unofficial members can out-vote the official, then the 
 former can, by rejecting your Excellency's estimate, place 
 themselves in a position, according to Lord Ripon's despatch, 
 to form a new estimate of their own j and in this estimate 
 they may, of course, include whatever grants of money they 
 think proper. Thus, you see, those who do not like our 
 cookery are at liberty to dress a dish themselves, and the point is, 
 which shall best please the palate of the Secretary of State. It 
 may be asked whether, in case the Council shall reject your Excel- 
 lency's estimate, and form an estimate of its own, your Excel- 
 lency would be called upon, pending the decision of the Secretary 
 of State upon the rival claims, to act upon your own estimate which 
 had been rejected, or upon the Council's estimate which had been 
 carried. This is a contingency which might occur, but it is one 
 not contemplated by Lord Ripon's despatch ; for in that despatch 
 it is assumed that the annual estimates are to leave the colony at
 
 ON IMMIGRATION. 85 
 
 such a time as will allow the sentiments of the Secretary of 
 State to be communicated before it can be necessary to act 
 upon either of the two estimates transmitted. When the 
 case arises, it will be time enough to discuss more fully 
 the line of conduct which ought to be pursued, in case the 
 estimates should be so long delayed in this colony, or so long 
 deposited in some pigeon-hole in Downing-street, that the attention 
 of the Secretary of State could not be directed to the conflicting 
 propositions early enough to avert the necessity of acting upon one 
 of them in ignorance of his decision. I have now discussed, as well 
 as I am able, the matter of form. If it be said that I have succeed- 
 ing in shewing that the matter is not one of a very momentous 
 character, I shall the more rejoice. I am always glad to be able to 
 smooth differences, and much better pleased to promote union than 
 division. If, after all, we must still remain opposed, I shall rest 
 satisfied with having, I hope, given a reason for the faith that is in 
 me. Dismissing now the matter of form, I come to the more im- 
 portant part of the resolution of my hon. and learned friend, the 
 matter of substance, as we have called it for distinction's sake. My 
 hon. and learned friend has explained, very properly and very well, 
 that there is an anxiety now prevalent to get something done in the 
 way of immigration ; that a disposition to promote that object is 
 looked for at the hands of the Government and of this Council ; 
 and, that any movement in that direction, however intrinsically 
 inefficient, would be hailed as a considerable advance. Of this 
 position of my hon. friend there can be no doubt. Now, although 
 some persons suppose from the tenor of some former remarks of 
 mine upon this wayward subject of immigration (remarks for which 
 I have been considerably abused, though mainly at the other end of 
 the colony, which my vanity accounts for by the reflection that 
 there I am least known), that I am hostile to all attempts to intro- 
 duce European labour, I beg leave to repeat what I have already 
 stated, that I am no such thing ; and I should feel myself 
 unworthy to take even my humble part in our small colonial 
 politics if I permitted myself to be moved by those attacks 
 which every one must by turns experience, wherever there is
 
 86 ON IMMIGRATION. 
 
 a free press, or to be provoked, even by injustice, to set my 
 shoulder against any project which deserves to be supported. 
 Quite prepared, therefore, to enter into the feelings which 
 animate the members opposite ; ready to make, if I can, 
 what I do not deny to be a rational experiment, only convince 
 me that I can properly and usefully support this resolution, and 
 that support will not be withheld. But I doubt this ; and I will 
 tell you why. My hon. and learned friend has admitted and de- 
 plored the unhappy position in which we are placed by the injunc- 
 tions laid upon us to apply every penny of surplus revenue in the 
 reduction of our paper debt. My hon. and learned friend has said 
 that if he had known that he was to be called upon to interpret 
 the directions of the Secretary of State so strictly as not to 
 be at liberty to pass such a vote as the present, in favour of 
 immigration, he would, in his turn, have acted strictly upon this 
 strict interpretation, and voted against every item con- 
 tained in the supplementary list. Undoubtedly he might have 
 done so ; and other members might have followed his ex- 
 ample. But that the interest of the colony would have been pro- 
 moted by adopting such a course, I question very much. It would, 
 I admit, have conveyed his sentiments to the Secretary of State in 
 a very striking shape. To the furtherance of this object, however, 
 my hon. and learned friend would have sacrificed much substantial 
 good, and worked some inevitable injustice. My hon. and 
 learned friend, consulting (as I will do him the justice to say 
 I think he always does), for the public good, can scarcely 
 shew the expediency of refusing grants which he conscientiously 
 considers to be required, merely for the ulterior object of coercing 
 Her Majesty's Government to rescind an obnoxious resolution. 
 But my hon. and learned friend is not yet too late. He still has an 
 accepted time. It is competent for the Council, notwithstanding- 
 the progress which has been already made in the discussion of these 
 estimates, to reject them altogether, and then propose new ones. 
 In the latter it will, of course, be competent to add and omit, 
 as the framers may think proper, to insert a grant for immigra- 
 tion, and leave out the supplemental list. Whether such a course
 
 ON IMMIGRATION. 87 
 
 could be wisely adopted, considering the circumstances of this 
 Council and of the colony, I submit to the judgment of my un- 
 official friends. T beseech them to look about and see exactly how 
 we stand. I abandon now the matter of form altogether, and con- 
 fine myself to the substantial merits of the resolution now before us. 
 Do we forget our discussions on the paper money debt ? Sir, we 
 never can forget them ; and, under these circumstances, my hon. 
 and learned friend will remember that he himself proposed that a 
 sum of j 5,000 should annually be placed upon the estimates, and 
 be applied to the gradual liquidation and ultimate extinction of the 
 paper money debt. 
 
 Mr. Ross : The sum proposed was ,6,000 per annum. 
 
 ATTORNEY-GENERAL : Well, I find I was ji,ooo below the mark. 
 My hon. and learned friend, making the best bargain which he 
 conceived to be in his power, was prepared to stipulate, with 
 all that solemnity which the subject matter of the contract, and 
 the character of the high contracting parties, might de- 
 mand, that the sum of 6,000 should annually form the 
 first and foremost item of our estimates, and be applied, no 
 matter what other objects might be unprovided for, to the sacred 
 end of fulfilling our engagement. This proposal has gone home, 
 accompanied by other projects of which it is here enough to say 
 that, whatever may be rheir respective merits, they are not, and do 
 not profess to be more economical than that of my hon. and learned 
 friend ; but, on the contrary, less so ; and his plan, if practicable, 
 will certainly cost the colony less than either the plan of Govern- 
 ment, or that of my hon. friend (Mr. Ebden). The Secretary of 
 State may say, I will have nothing to do with any of your plans, 
 and reiterate the old commandment to destroy and spare not. 
 He may take the Government plan or that of my hon. 
 friend (Mr. Ebden) j but these will be more expensive. 
 Under these circumstances, if his Lordship shall declare 
 " Mr. Henry Cloete is a very honest man, and I will take his word 
 for the ^6,000 per year," it is clear that the result will be more 
 favourable to our finances than any other which we can rationally 
 look for. Now your deficiency upon the year being ,1,500,
 
 ON IMMIGRATION. 
 
 becomes, the moment the Secretary of State closes with the pro- 
 posal of my hon. and learned friend, 7500. 
 
 Mr. CLOETE : What, with 40,000 in the chest ? 
 
 ATTORNEY-GENERAL : Wait a little ; I have not yet closed ac- 
 counts. Remember the 7,000 laid out in bringing the liberated 
 Africans from St. Helena. If the Secretary of State shall approve 
 of this disbursement, then is so much more money gone its way, 
 and will return no more. No doubt this money is guaranteed ; 
 and there are some very substantial and solvent names attached to the 
 guarantee which has been given. Hostile as he is to the in- 
 troduction of this sort of labour as an inferior article, my hon. 
 friend beside me (Mr. Ebden) will probably consider that the Secre- 
 tary of State woul d do well to disallow the outlay, and leave those 
 to pay for the whistle who like its music. His own true British 
 Birmingham ware may, in his estimation, suit the colony much 
 better. Should the Secretary of State take a similar view, my hon. 
 friend opposite (Mr. Ross) can hope for little sympathy from my 
 hon. friend who sits so cheerfully beside me (Mr. Ebden), but, if 
 disappointed in that quarter, he has only to lodge his sorrows in my 
 bosom, where he will be sure to meet all that sincerity of condo- 
 lence which will naturally spring from the consideration that I 
 shall myself be 50 the poorer. Now, I ask you, is it not 
 better, ignorant as we are of the views of the Secretary of State, 
 knowing nothing of what is to be done about the reduction 
 of the paper debt, and nothing of what is to be the result 
 of the expense incurred for the St. Helena Negroes, to awaif 
 some communication from his Lordship upon these important 
 points before proceeding to apply your present means ? If his 
 Lordship find us proceeding blindly to vote this money, in 
 inevitable ignorance as to the real nature of our position and the 
 extent to which we may proceed, granting, it may be, too little 
 in one state of circumstances, and in another state of circumstances 
 granting too much, will it tend to heighten his opinion of our 
 prudence and circumspection, or induce him to repose a greater 
 degree of confidence in us than he does at present, a degree of 
 confidence which my hon. friend opposite considers is not so great
 
 ON IMMIGRATION. 89 
 
 as to be very complimentary ? For these reasons, I consider 
 this resolution to be impolitic. In form and in substance I am 
 disposed to meet it with a negative. But I am no enemy to 
 immigration ; and only desire to see a rational way of giving 
 it a fair trial. In the estimate of its claims, as compared with 
 those of public works, I remain of the same opinion as I 
 was. I will not, in obedience to any pressure from without, 
 abandon one position which I have taken up. I have nothing 
 to retract, or to qualify, or even to explain. What I said was 
 not delivered without previous inquiry, and I have, since I spoke 
 at length upon the subject, made some further inquiries about 
 wages, of which I shall state the results in due season. But I 
 am not to be driven by that free discussion which my observations 
 have called forth farther then I intend to go. I am not against, 
 but strongly in favour of, trying the experiment of European labour, 
 if you had the means to try it. That experiment might be gradual, 
 and even if it failed, it would, at worst, be but some money lost. 
 Your only obstacle is the want of funds. Remove that difficulty, 
 and you may throw my declamation to the winds. But I hope I 
 have said enough to convince every unprejudiced man that this 
 resolution cannot be passed with any propriety or practical ad- 
 vantage, and that the Council is called upon to meet it with a 
 negative. 
 
 ON IMMIGRATION. 
 
 [Legislative Council, May 24, 1842.] 
 
 ATTORNEY-GENERAL : Although it has so happened, Sir, that I 
 was up until an early hour this morning, I have to admit what 
 certainly is not, under the circumstances, a matter of regret, that I 
 did not employ my vigils in considering this important question.* 
 
 * Her Majesty's birthday had been celebrated at Government-house on the day- 
 preceding.
 
 ON IMMIGRATION. 
 
 My remarks will, therefore, in all probability, be of a more desul- 
 tory -character than they might otherwise have assumed. Let us 
 endeavour, by the way of a commencement, to ascertain the true 
 position of the question now before this Council. During our two 
 days' discussions we have had so many matters introduced ; have 
 had, to speak in nautical phraseology, so many eddyings of argu- 
 ment, and contrary currents of remark and reasoning, that it is 
 by no means easy to say to what point, exactly, the debate 
 has drifted ; and we shall, therefore, do well, by heaving the log 
 and taking an observation, to fix particularly the place in which we 
 now are. From time to time we have had matters of form connec- 
 ted with the legitimate mode of passing money votes, and then, 
 from time to time, we have had matters of substance connected 
 with immigration, roads, and paper money ; and while some, honour- 
 able members have run off upon one of these points, some have 
 pursued another in quite a different direction, so that to collect the 
 scattered flock together, would require a shepherd of much more 
 skill than I have any pretensions to possess. But while any given 
 quantity of observation may be emitted upon any single one of the 
 topics stated, the practical question which this Council is to consider 
 and determine, is not, perhaps, attended with much difficulty. Let 
 us see, by a short historical retrospect, what the position of this Coun- 
 cil with regard to its disposing power over the public revenue actually 
 is. It has been mentioned to-day, but was well known to all of us 
 long ago, that not long after your arrival in this colony, my friend, 
 Col. Bell, drew up and laid before your Excellency a memorandum 
 relative to our paper debt, to our public works, and the great 
 importance of inducing Her Majesty's Government to allow a 
 certain portion of the paper money to remain uncancelled in order 
 that our public works should be promoted by the re-issue of that 
 amount. The memorandum of which I speak was dictated by 
 that lively interest in our colonial welfare by which Col. Bell was 
 ever actuated, and while its arguments and details were very full 
 and very able, its tone, considering that the writer knew himself to 
 be a stipendiary officer of Government, was creditable to him for 
 its strength. He prayed the Secretary of State to give to the
 
 ON IMMIGRATION. 9 1 
 
 doomed paper money a longer day than had been determined. 
 Your Excellency did not hesitate to transmit and to support 
 the memorandum of Col. Bell, or to solicit the Secretary of 
 State to make such arrangements connected with the time and 
 terms of the extinction of the paper money debt as might allow 
 some important public works, for want of which the colony 
 was languishing, to be undertaken. To your dispatch annexing 
 Col. Bell's memorandum, an answer was received of which a 
 part has been read to-day in Council. That answer is, I sup- 
 pose, sufficiently distinct. It is idle to quarrel with its purport. 
 While it was different from what some seemed to have hoped for, 
 one thing, at least, was clear respecting it. It was not made ex 
 parte, inconsiderately, or without the fullest knowledge of the sub- 
 ject. Her Majesty's Government, having before them as strong a 
 statement of the case as could possibly be framed, deliberated upon 
 it, and finally decided that none of the points relied on in arrest of 
 judgment were sufficient, and that the law must take its course. 
 But the matter did not rest here. Not deterred, even by the tenor 
 of the Secretary of State's reply to the memorandum of Col. Bell, 
 it was determined to try whether a minute of the Executive 
 Council, and a set of resolutions to be passed by this body, might 
 not still have their effect. The two Councils then made a strong 
 and an united appeal 
 
 Mr. EBDEN : Not all of us. 
 
 ATTORNEY-GENERAL : With one eminent exception, this Coun- 
 cil, as well official as unofficial, did unite in praying the Home 
 Government to allow the public works of this colony to be attended 
 to in the only way in which it was possible to consult them. 
 Balancing advantages against disadvantages, a majority of this 
 Council deemed that to improve our roads and bridges was a press- 
 ing want, and that it would be well to postpone to this object, 
 the ultimate extinction of the paper money debt ; while, on the 
 contrary, it appeared to my hon. friend (Mr. Ebden) that the ex- 
 tinction of the paper money debt was the first and foremost good 
 to be accomplished, and that until that matter were effected, our 
 roads and bridges must remain in statu quo. My hon. friend
 
 92 ON IMMIGRATION. 
 
 would slay and spare not ; devote every surplus penny in the- 
 Treasury to the withdrawal of the paper ; borrow money on 
 debentures so as to be in a condition to destroy the residue, 
 and thus make an end of the accursed thing. I shall have 
 the concurrence of my hon. friend in stating that I repre- 
 sent correctly the substance of his counter resolutions. Now 
 I put it at once to my hon. friend who supports the resolution now 
 before this Council, and to my hon. and learned friend the mover 
 of it, whether, in case the plan of my hon. friend had been adop- 
 ted, anything in the nature of surplus revenue could now exist so 
 as to give a colour to the grant of money now proposed ? But at 
 all events this Council, in conjuction with the Executive, recom- 
 mended that a certain portion of our surplus revenue should be 
 otherwise employed than in the destruction of so much paper 
 money, and be devoted to the exigency of our public works. I am 
 not about to deprive my hon. friend (Mr. Ebden) of the honour of 
 resisting the remainder of the Council. Single-handed and alone 
 he fought the battle of the Home Government. He did not follow 
 a multitude to do evil. Whilst all the rest departed from what 
 seemed to be their just allegiance, he stood forward the Abdiel of 
 
 this assembly, 
 
 " Faithful found 
 Amongst the faithless., faithful only he." 
 
 Not having the fear of dismissal sufficiently before their eyes, the 
 official members voted for promoting colonial public works before 
 extinguishing the colonial debt to the mother country ; a proceed- 
 ing upon their part somewhat extraordinary, and which my hon. 
 friends afterwards accounted for, by stating that they were merely 
 strangers and sojourners in the land, having neither permanent 
 residence in the colony nor zealous interests in the advancement of 
 colonial good. My hon. friend having thus accounted for the con- 
 duct of the official members in disobeying the Home Government, and 
 shown that they did so, not because they took an interest in the colony, . 
 but because they took no interest in it, proceeded, by a species 
 of alchemy peculiar to himself, to transmute the preference given 
 by him to the immediate cancellation of our paper debt to the in-
 
 ON IMMIGRATION. 9 3 
 
 definite postponement of public works, into a proof of high colonial 
 patriotism. In taking this view of the matter, I rather think my 
 hon. friend was as singular as he was in his opposition to the reso- 
 lutions of Col. Bell ; but be that as it may, such unquestionably was 
 the view he took. Returning now, Sir, to the narrative of events 
 (from which I was induced to turn aside by my anxiety to do 
 that justice to my hon. friend which his interjectional remark 
 appeared to call for), I beg to remind the Council, that what 
 Her Majesty's Government refused to Col. Bell's memorandum, 
 and to your Excellency's despatch supporting that memorandum, 
 they also refused to the united appeal of the two Councils. 
 The despatch which was elicited by the resolutions of this 
 Council and the minute of the other, has been read in part to-day 
 by my hon. friend the Acting Secretary to Government. It is, I 
 think, sufficiently intelligible. There is nothing doubtful or diplo- 
 matic about it, nor does it veil its meaning in, any studied ambi- 
 guity of phrase. A clearer communication was never found, and 
 all official persons here must feel that it is written for their learning. 
 It states, almost in so many words, that until the just debt due by 
 the colony to the mother country has been liquidated, no appro- 
 priation of the public money will be permitted in furtherance of 
 any public work whatever. It not merely directs you to apply all 
 surplus revenue in the way suggested, but recommends you to out- 
 run the tardy march of time by borrowing on debentures so as to 
 bring all accounts at once to a conclusion. It enjoins you to 
 destroy as far as your present means permit, and to borrow upon the 
 credit of your future means as much as will destroy the residue. 
 The communications of Her Majesty's Government do not rest here. 
 They express great surprise, which, freely translated, may be termed 
 some displeasure, that the resolutions which had been transmitted 
 should have been laid before this Council for adoption by a stipen- 
 diary officer of the Crown. Now it may be that intimations of this 
 nature may strike some of my unofficial friends as matters of very 
 small importance, but there are others to whom they present them- 
 selves in quite another point of view. It is true, that what is said 
 applies principally to the Secretary, Col Bell. But there are other
 
 94. ON IMMIGRATION. 
 
 announcements which shew clearly enough that what is said to the 
 Secretary is said unto all ; and, although myself a very small official, 
 I do not feel myself so safe in insignificance as to be unmindful of 
 the warning voice. What then is our condition ? Here we are, 
 a number of officials holding office during pleasure, who are 
 enjoined to obey, not the hasty or casual, but the long considered 
 and oft repeated, injunctions which have been issued for the guid- 
 ance of our public conduct. We have appealed, and then appealed 
 once more, and Her Majesty's Government, after due delibera- 
 tion, has affirmed its judgment, and warned us how we appeal again. 
 Under these circumstances we are told that we are not precluded 
 from supporting this resolution, that somehow or other we may 
 find a loop-hole of escape that the public expects us to vote this 
 money, and will be much disappointed if we do not. Now, for 
 the life of me, I cannot see how this is to be done. I do not see 
 how we can vote ^1,200 with my hon. and learned friend in the 
 teeth of our express directions to vote no sum whatever for any 
 such design. Between our official obligation and both the resolu- 
 tions now before the Council, there is a great gulf fixed. What 
 then are we official members to do ? This is a question involving 
 the ethics of official life, and the discussion of it can have little 
 interest for my unofficial friends. Without, therefore, discussing 
 it, I will venture to remark that the rational rule appears to 
 be that no man, for the sake of office, should do anything which 
 is morally wrong ; but, at the same time, that no man is called 
 upon to relinquish office for the sake of what he may con- 
 sider expedient, unless his relinquishment of office would have 
 the probable effect of furthering the object which he esteems 
 desirable. Ministries in England have resigned because they 
 could not carry certain projects, and have, by so resigning, 
 been borne back again to office upon the shoulders of the 
 people, and then been enabled to carry their projects through. But 
 let me know, I pray you, what good could possibly be done were all 
 the official members of this Council to resign in a body, or be in a 
 body deprived of office ? For myself, I do not hesitate to say, that 
 looking to the forbearance which the Home Government has already
 
 ON IMMIGRATION. 95 
 
 exercised, and to the unequivocal terms in which its expectations 
 relative to my official conduct have been conveyed, I should feel as 
 a man of honour, that I ought not to cast upon the Secretary 
 of State the ungracious task of turning me out, and that 
 I was bound, in sending home my vote for this resolution, to 
 send a tender of my resignation along with it. Did I do so, how 
 would you be better off? A better and an abler Attorney-General 
 you could easily get. But that is not the question. The question 
 is, would you get a new Attorney-General who would support votes 
 of public money for public works and emigration to vote the 
 ji,200? Every other official member may say the same thing, 
 and the only effect of the whole of us resigning, would be, that in 
 place of the number, is it seven ? by whom you are now 
 possessed, there would come over seven other spirits more wicked 
 than ourselves, and the last state of this Council would be worse 
 than the first. How miserably vulgar, then, to raise, the cry " Oh 
 these soulless officials are tied hand and foot ! " Why, I will call 
 upon any man of common sense and common honesty, to make the 
 case his own, and if such a man should say I ought to resign, I declare 
 to God I think, just now that I should do so. But no man of com- 
 mon sense and common honesty will say so. He will see at once 
 that whatever effect my resignation might have in retarding, it 
 could have no effect whatever in promoting the end which, for the 
 sake of argument, I shall concede to be expedient. I have in- 
 sensibly warmed a little upon this point, and speaking for my 
 official brethren, have deemed it right to state their case, and call 
 for judgment in their favour. But another question now arises, 
 is it allowable even for the unofficial members of this Council to 
 contravene the deliberate instuctions of the Home Government ? 
 
 Mr. EBDEN : Certainly not. 
 
 ATTORNEY-GENERAL : That such is the opinion of my hon. friend, 
 he has on former occasions furnished ample proofs. Then, sanc- 
 tioned by the authority of my hon. friend standing on the 
 vantage ground of his opinion, I ask the other unofficial members 
 how, in consistency with the principle which he has often before 
 promulgated, and has again this very moment recognized, they
 
 0,6 ON IMMIGRATION. 
 
 can give their support to either of the resolutions now before us ? 
 My hon. friend declares that it is the duty of this Council not only 
 to refrain from opposing, but to act at all times in absolute con- 
 formity with the declared intention of Her Majesty's Government. 
 He proclaims that when once a decision has been definitively pro- 
 nounced, the members of this Council, as well unofficial as 
 official, have nothing left for them but to carry it into effect. In 
 the debates upon the currency, he always told us that 
 we were wrong in what we were about, because we were flying 
 in the face of the Home Government, by not carrying out the views 
 which it had communicated for our guidance. Now will any man 
 maintain that the very same question is not now substantially 
 before this Council ? Will any man maintain that that is a differ- 
 ence in principle which is merely a difference in amount, and 
 that _ 1, 200 is one thing and 12,000 another? No man will 
 maintain this ; and now let us compare the cases. What was the 
 case when Col. Bell carried the resolutions ? Why, because, per- 
 haps, of his being a stipendiary officer of the Home Government and 
 a stranger who took no interest in the colony, he wished to induce 
 the Home Government to forego the immediate exaction of its debt, 
 and to permit a judicious expenditure on public works. My hon. 
 friend viewed the matter differently. His argument for the im- 
 mediate destruction of the paper money, at all cost, was not derived 
 from Cudworth's Immutable Morality, or the natural fitness 
 of things, according to the theory of Butler, but adopting 
 the opinion that the essence of obligation is obedience to the 
 will of a superior, he said, " Her Majesty's Government have 
 directed us to burn, that is quite enough for me, and that should 
 be quite enough for you official gentlemen, stipendiaries, and 
 strangers." Will it be said that because Col. Bell considered 
 (he might be right or wrong, but that is not the question) 
 that the greatest exigency of the colony was thepromotion of 
 public works, and not the introduction of European labour, and 
 because he penned his resolutions upon that principle, that there- 
 fore the cases are distinguished ? Is it not clear that had Col. Bell 
 been as great an advocate as ever existed for the introduction of
 
 ON IMMIGRATION. 97 
 
 European labour, and had sought leave to issue money for that pur- 
 pose, the argument of my hon. friend would have equally applied ? 
 If this distinction fails, will the change of administration be relied 
 on ? There may be many things which will be affected by that 
 change, and people will form their own opinions relative to their 
 expediency, my hon. friend may not be found rejoicing at the 
 dissolution of the late Government, and I myself, being what is 
 commonly called a Whig, may not be found rejoicing either, but 
 upon this question of the paper money, we may be well assured 
 that there will be no change of measures. The same men 
 who are now in power are, in some degree, the same who were 
 in power in 1825, when the colonial currency was changed, 
 and from that time to the present, the course of the Home 
 Government has been uniform and unchanged. If, then, no 
 such distinctions as those to which I have adverted, can be 
 drawn between our position at the time of Col. Bell's resolution 
 and our position now, I wait with some curiosity to see how my 
 hon. friend (Mr. Ebden) will extricate himself from the dilemma. 
 I am well aware of his ingenuity, but out of this dilemma I think 
 he cannot creep. I should as soon expect to see him creep into a 
 quart bottle. But it will here be convenient that I should notice 
 more particularly the amendment of my hon. friend opposite 
 (Mr. Ross). He has come in aid of us official members, and 
 he considers that while there might be danger in supporting 
 my hon. and learned friend opposite (Mr. Cloete) there can 
 be none in supporting him. He has stated that his object 
 has been to make his amendment " palatable " to the Colonial Gov- 
 ernment. The phrase "palatable" is in strictness metaphorical, and 
 is commonly applied to physic. Adopting this application of the 
 word, I must say that I do not think the one dose essentially differs, 
 from the other; and that they are distinguished chiefly by the differ- 
 ent terms in which they are described ; but as Dr. Ollapod, in the 
 comedy, acutely remarks, " Names aie nothing, rhubarb is rhu- 
 barb, call it what you please." It is to be observed that my hon. 
 friend (Mr Ross) would devote even a larger sum than that pro- 
 posed by my hon. and learned friend. True, he does not seek,
 
 98 ON IMMIGRATION. 
 
 as does my hon. and learned friend, to put any sum whatever 
 at once upon our estimates. But this is a distinction which 
 scarcely amounts to a difference. The observation which I 
 have already made, will shew the Council that the matter 
 in hand cannot be managed by simply making a difference in 
 our form of proceeding. Indeed, of the two propositions, 
 I think, were I a freeman like any of my friends opposite, 
 and disencumbered of the golden chains which fetter the limbs of 
 us officials, 1 should rather vote for the original resolution than 
 for the amendment. My hon. and learned friend may say, " I 
 wish to make myself attended to, and to prevent what I am about 
 from passing without notice, and, although conscious of some 
 irregularity of form, I am prepared, in order to do a great right, to 
 do a little wrong, and take the decided step of placing my views 
 on the estimates in the shape of an actual vote." This course of 
 proceeding may have its recommendations, and is scarcely open to 
 any objection which may not be urged against the amendment 
 submitted by my hon. friend (Mr. Ross). It is, however, 
 a course of proceeding which, for the reasons stated, I consider 
 *hat this Council cannot adopt. But my hon. and learned 
 friend (Mr. Cloete) joins issue with me here. He says 
 that by reference to Col. Bell's memorandum and the resolutions 
 of this Council, it will be found that both contemplated a re-issue 
 of paper money. He farther says, that it is against this re-issue of 
 paper money that Her Majesty's Government has set its face. But 
 his plan, he says, involves no re-issue of paper money ; and there- 
 fore does not come under the ban of the Secretary of State. A 
 moment's reflection will shew that the matter is just as broad as it is 
 long, and that there is no weight in what has been urged upon this 
 point by my hon. and learned friend. It so happened that when 
 Her Majesty's Government were considering this paper money 
 question they were not aware of the actual balance in the military 
 chest, but they were feelingly alive to the fact that for every jioi 
 10 lodged here with the Deputy Commissary-General, that officer 
 gave a bill for 100, which the Lords of the Treasury were 
 under the necessity of raising funds to meet. A late celebrated
 
 ON IMMIGRATION. 99 
 
 statesmen once spoke in the House of Commons of an igno- 
 rant impatience of taxation on the part of the people ; and 
 there certainly was an impatience, which it would be very use- 
 less to call ignorant, on part of the Treasury, of the duty of 
 borrowing money to pay our debts. ' Under these circumstances we 
 were directed to replace what we had borrowed from the bank, 
 and then destroy an equivalent amount of paper, the effect of 
 which would be to annihilate, to that extent, the irksome guarantee. 
 In refusing their permission to re-issue. Her Majesty's Govern- 
 ment refused what we now seek, even when it vras presented in a less 
 objectionable form. For had we re-issued, there was no reason 
 to believe that all the paper so re -issued would have been 
 tendered for Treasury Bills. Some of it, one would think 
 must, from the operation of obvious causes, have been kept 
 in colonal circulation in order to facilitate domestic remittances . 
 It is clear, then, that for whatever amount should be kept in 
 circulation no bills could be drawn, and therefore no funds nsed 
 be borrowed. At present we are aware that almost the whole of 
 the existing paper money is in Mr. Palmer's chest. In other words, 
 bills have been drawn for it, which Her Majesty's Government have 
 had to meet. With what reason, then, can it be urged that the 
 same Government which would not permit a re-issue of notes, 
 because there was a probability that those notes would ultimately 
 come to it for payment, would nevertheless allow an issue of specie 
 to be made, whilst those notes (re-issued in the ordinary expenditure 
 of Government) have actually come in for payment, and lie in the 
 chest as vouchers for an existing debt ? When we had notes 
 the Home Government said, " Don't issue them for public works or 
 emigration, for they will come to us to be paid in bills." Well, now 
 that they have been paid in bills, will not the Home Government 
 say, "Don't issue specie for public works or emigration, until you 
 have paid the notes which now are lying on our hands." To say, 
 therefore, that we may send our sovereigns in any way that we like, 
 and that anathema maranatha has only been pronounced upon a paper 
 issue, would be to lose sight of the circumstances of the case, and to 
 disregard the force of an a fortiori argument. I trust that I have 
 
 H 2
 
 IOO ON IMMIGRATION. 
 
 now satisfied all who have done me the honour to pay attention to 
 my observations, that the instructions of the Home Government, 
 with respect to the subject matter of these resolutions, are too plain 
 
 to be mistaken, and too absolute to be withstood. What then, I 
 
 Hi I 
 
 ask, is Government to do ? Unofficial members, I admit, are differ- 
 
 f*~ ently circumstanced. They may sometimes find it expedient to 
 ask for what they are distinctly told will not be granted. Even in 
 importunity itself there is a certain virtue. But no official member 
 of this Council can properly support any resolution which, by 
 devoting any sum whatever to the furtherance of public works or 
 immigration, contravenes the express and repeated injunctions cf 
 
 _ the Home Government to apply all surplus revenue in diminution of 
 our paper debt. To the official members, therefore, their course 
 is plain and clear. And if there be any unofficial member 
 who seeks to combine a support of any one of these resolu- 
 tions with an adherence to his oft repeated declaration, that the 
 will of the Home Government, whenever it is distinctly enunciated, 
 should be omnipotent with this Council, I call upon him to state 
 distinctly and intelligibly the grounds for his proceeding. I am 
 not deaf, indeed, to what is passing out of doors. I hear, as all 
 other persons do, the common cry, that something must be done ;. 
 that, really, this won't do ; that we must, by hook or crook, 
 contrive to go a-head a little. Is it not, however, plain and clear, 
 that if we cannot go a-head without postponing the payment 
 of our debts, Her Majesty's Government have taken right good 
 care that we shall not go a-head at all ? They will permit you to 
 borrow any sum which may be necessary for the destruction 
 of the paper money ; but they will not permit you to borrow even 
 so small a sum as 20,000 for the purposes of public works and 
 immigration. And here, Sir, were it of any practical importance so 
 to do, I could not but observe upon the miserable inadequacy of 
 the sum suggested. With 20,000 how little could be done ! 
 Why, one work alone a great and important one, and one which 
 I hope to live to see accomplished I mean a hard road across the 
 flats, cannot fairly be estimated at a lower charge than 30,000 ^ 
 and thus, when roads and immigration are combined together, to 
 vote but 20,000 for both, appears almost ridiculous.
 
 ON IMMIGRATION. IOI 
 
 Mr. CLOETE : There is nothing about roads in my resolution. 
 
 ATTORNEY-GENERAL : My hon. and learned friend is correct in 
 stating that his resolution refers alone to emigration. The amend- 
 ment of my hon. friend opposite (Mr. Ross) refers to public works 
 as well. But if what I formerly stated in this Council as to the 
 expense of emigration have any foundation in fact, it cannot but 
 be clear, that such a sum as 20,000 could produce no practical 
 result. I presume that my hon. and learned friend himself feels 
 that we are still only in the day of small things ; that his vote could 
 do no more than simply make a beginning. He obviously wishes, 
 if he can, to insert the small end of a wedge, which driven home 
 hereafter by strong colonial hammering, may split asunder even the 
 rooted opposition of Her Majesty's Government. In this point 
 of view, the smallness of the sum to which he has confined himself 
 may not be considered injudicious. But are we to despair? Is our 
 case hopeless ? Can nothing be devised or done ? For my own 
 part, I can imagine but two measures to which we can resort. We 
 hear a great deal of quitrents in arrear of taxes not collected 
 and of the unsound state of our finances generally. Let the excite- 
 ment upon these subjects turn itself into the shape of a petition to 
 the Secretary of State, praying him to appoint a commission to 
 inquire into the revenue and expenditure of the colony. Let it 
 thus be ascertained how your funds can be increased, or, what 
 comes to the same thing as regards the matter now in hand, how 
 your outlay may be diminished. I see that my venerable friend 
 at the other end of the table (Mr. Breda) looks ominous and 
 shakes his head. He does not like commissions of inquiry ; 
 perhaps his antipathy is not ill-founded. Such commis- 
 sions for the most part chip and rasp ; but they do not always 
 chip and rasp in the right places ; and it may, perhaps, be doubted 
 whether any little saving which might chance to be effected would 
 compensate for the trouble and expense which such a commission 
 would entail. I think I may venture, however, to say, that the 
 Government of this colony is conscious neither of corruption nor 
 negligence, and thit it will shrink from no inquiry ; while the 
 official members of this Council are perfectly willing to submit 
 their services and their salaries to any ordeal which the
 
 IO2 ON IMMIGRATION. 
 
 Secretary of State may think proper to apply. The idea of a com- 
 mission does not seem to be approved of. I know not whether what I 
 have next to throw out will meet with more success. Will you petition 
 the Secretary of State for leave to impose an assessment upon the 
 immovable property in this colony not to exceed one penny in 
 the pound, nor to continue beyond a certain number of years, and 
 to be applied exclusively to the promotion of public works and 
 immigration ? If you will, Lord Stanley will give you leave, or I 
 very much mistake the man. Observe, that this assessment would 
 form no part of the ordinary revenue, and would constitute a fund 
 as separate as if it were the proceeds of voluntary subscription, 
 vested in distinct trustees. Under these circumstances it is very 
 clear that Her Majesty's Government would not think of regarding 
 it as belonging to that species of revenue which they consider a 
 security for their debt. With such a fund as this assessment 
 would produce, a principal board in Cape Town, and local boards 
 in the districts, much might be accomplished in the way 
 of developing the resources of the colony ; and the lan- 
 guage of a despatch of Lord John Russell's, which was laid some 
 time ago before this Council, would seem to countenance the idea 
 that the principle of local taxation for public works is one which 
 Her Majesty's Government is not indisposed to countenance. Here, 
 then, is a mode of assisting ourselves which looks like practice. 
 The plan is only proposed for want of a better, and will be with- 
 drawn the moment a better is suggested. It is necessary to make 
 our ideas upon this subject somewhat more definite and distinct 
 than they are for the most part found to be. My hon. friend be- 
 side me (Mr. Ebden) is very fond of saying that he does not despond 
 of the financial state of the colony ; and I am glad to find that a 
 view so cheering is entertained by so competent a judge. But, 
 after all, we may talk in this way to the end of the chapter, with- 
 out thereby securing a single practical advantage. 
 
 " No man can hold a fire in his hand 
 By thinking of the frosty Caucasus ;" 
 
 nor will our thinking of a full treasury fill an empty chest. Anxious 
 to get out of the region of barren generalities, sick of a state of
 
 ON IMMIGRATION. 103 
 
 all saying, and no doing, I have ventured to throw out what ap- 
 peared to me the most feasible means of accomplishing the ends in 
 view. To neither of these ends am I indifferent. When they 
 come into conflict, I prefer public works to immigration ; but I 
 repeat to-day, what I said yesterday, that I am not indisposed to 
 give emigration a fair trial. My hon. and learned friend says, that 
 he anticipates no opposition to his plan from the Home Government. 
 Our former projects, he states, were of a purely colonial charac- 
 ter. In our public works Great Britain could have no imme- 
 diate interest ; but with immigration from the mother country, he 
 thinks the case is different. Every immigrant removed would be a 
 direct relief to England ; and this consideration, he imagines, must 
 necessarily have great weight. Sir, I admit and deplore the 
 destitution which now pervades the mother country. There is 
 much poverty there, and much want of employment. I wish most 
 fervently that a portion of that idle population could be introduced 
 into this colony: 
 
 " Oh that we now had here 
 
 But one ten thousand of those men in England 
 
 That do no work to-day !" 
 
 What ground, however, have we for imagining that the Home 
 Government will forego the payment of what it has always consider- 
 ed a just debt, in order to enable you to import even the redun- 
 dant labour cf Great Britain ? From Lord Stanley's reply to 
 Mr. Roebuck, it seems certain that while ministers are disposed 
 to facilitate, as much as possible, all voluntary emigration, they 
 will not consent to export their pauperism at the national expense ; 
 and it is obvious that to do what my hon. and learned friend 
 requires, would be, in their view of the case, an infringe- 
 ment upon this principle. Sir, I foretold, when I set out, 
 that I should be desultory in my remarks, and I think that 
 I have sufficiently fulfilled the prophecy. If, however, I 
 have succeeded in making myself understood, I think I have 
 vindicated the line of conduct which the official members will 
 probably pursue ; that I have laid some grounds for inducing 
 the unofficial members to pause before supporting either of the
 
 IO4 AGAINST THE IMPORTATION 
 
 resolutions now before us ; and have exposed the hollowness of 
 every hope in favour of public works or immigration,which is founded 
 upon the abandonment by the Home Government of the position 
 which they have so long and so consistently maintained. I 
 have further taken upon me to suggest a mode in which the colony 
 might, if it thought proper, put its own shoulder to the wheel, and 
 cease to realize the fable of the clown and Hercules, I now sit 
 down, trusting that something will be devised to meet the demands 
 so loudly urged on every side, or that, in case it shall appear that 
 the public is unprepared to make any hearty effort in behalf of 
 the good cause, that they will then see the propriety and decency 
 of stilling clamour and being quiet. 
 
 AGAINST THE IMPORTATION OF 
 JUVENILE CRIMINALS. 
 
 \Legislative Council, May 25, 1842.] 
 
 ATTORNEY-GENERAL : In the present position of this question it 
 is not, I think, advisable to enter upon its merits at any length. 
 But I cannot help observing, that I feel very strongly the impolicy 
 of introducing into this colony such parties as those whom it is 
 intended to transmit, and that I concur in every expression of 
 dislike to the measure which has been uttered here to day. Even 
 in the mitigated shape of an experiment, I am altogether adverse 
 to the plan. No doubt so small a number as fifty of these convicts 
 could do but little harm, but if the principle be an evil one, it 
 must be resisted at the threshold, for if the measure shall be found 
 to work conveniently and work conveniently it is likely to do for 
 one party or the other it is impossible to calculate the consequences 
 to which it may ultimately lead. As at present impressed, my 
 deep conviction is, that if this colony wanted labour ten times 
 more than it actually does, if such labourers as we now contem- 
 plated were left here free of all expense, and if they were to be
 
 OF JUVENILE CRIMINALS. 10$ 
 
 apprenticed out amongst the farmers gratuitously, to serve them, 
 without wages, or reward the evils inseparable from the im- 
 portation of such a class of persons would immeasurably counter- 
 balance any apparent advantages which their introduction might 
 present. Brought into contact with the comparatively harmless 
 criminals of this colony, with the late apprentices, and above all 
 with the liberated Africans recently spread over the land, I cannot 
 undertake to estimate the risk and danger which a horde of English 
 convicts, however youthful, must necessarily entail. These 
 liberated Africans, I rejoice to know, are at present well conducted, 
 but their good conduct is the result of temperament and circum- 
 stances, and not of moral principle, and how long they will continue 
 as harmless as they are now, when they shall have been placed 
 under the tuition of English masters, who, though young in years 
 are old in crime, is a matter worthy of the greatest consideration. 
 The circumstances of the colony are not suited for the control 
 and reformation of such criminals. Scattered over a vast extent 
 of territory like ours, you must either grant to the masters such 
 power as will make the convicts virtually slaves, or else leave 
 the convicts such a degree of liberty as must lead to additional 
 licentiousness. In fact, I cannot see any way in which the plan, 
 approved of, doubtless, from motives of benevolence, can work 
 happily or well ; and I trust that the Secretary of State will learn 
 from the right thinking and right feeling part of our community 
 their views upon this question, in sufficient time to avert what, I fear, 
 would form a most injurious measure. There is no man more open 
 to argument than the Secretary of State, and it is not, perhaps, yet 
 too late to induce him to re-consider the project, and it may be, 
 to give it up. In the Executive Council it will be my duty to 
 give whatever assistance I am able to afford in the framing of such 
 regulations as may appear best fitted to accomplish the ends which 
 his Lordship has in view ; but still, I feel that I am here in double 
 trust, and I do not think that any official considerations will 
 prevent me from expressing the views which I am led to form. 
 Nor, indeed, on a question of this kind, could I well permit myself 
 to be withheld by such considerations even if they did exist. I fear
 
 io6 
 
 AGAINST THE IMPORTATION 
 
 that Captain Wolfe, with the best intentions, has done some'mis- 
 chief. No doubt if we were to lose sight of our merely local 
 interests, and take as our standard of expediency an abstract 
 attention to being in general, much may be said in behalf of 
 the views which the Commandant has urged. It is idle to contend, 
 looking to the interests of the convicts themselves, that those would 
 not, in all probablity, be promoted by a change of place, since idle- 
 ness is the prolific plant of crime, and since in this colony there 
 is more demand for labour than there is in England. Those con- 
 victs, Captain Wolfe truly says, are a nuisance to the mother 
 country. Now it may be all very well for A to wish to get rid of 
 a nuisance, but if B be wise, he will not let it be laid down upon 
 his premises. I should write up in very large letters for the in- 
 formation of our rulers in the mother country, " Commit no nuis- 
 ance here." A metaphorical public writer, in speaking by anticipa- 
 tion of this subject, compared, some time ago, these juvenile con- 
 victs to "young serpents." This was eloquence, and, as I myself, 
 hate eloquence, I shall not absolutely adopt the epithet. But 
 using it for the purpose of illustration, I may remark, that while a 
 country in which young serpents notoriously exist in great numbers 
 can scarcely feel that portion of relief which could be afforded by 
 the largest practicable exportation, the country to which they are 
 conveyed may soon expect to see swarms of them, for they are 
 creatures which have a tendency to multiply. What ought to- 
 be done, in the present position of affairs, it is not for me 
 or even for the Council to determine. It is, however, to be 
 hoped that the public, taking an enlightened view of its true 
 interest, will respectfully call the attention of Lord Stanley 
 to the subject, and dissuade him from carrying the project 
 into execution. My hope, I must say, is not a very sanguine one. 
 I trust I shall not be thought to slander the inhabitants of the 
 Cape when I say, that so short sighted are the majority of them 
 in matters of this kind, so incapable of duly consulting their 
 permanent advantage, that if your Excellency were to announce in 
 the next Government Gazette that such a measure was contemplated, 
 and that all persons willing to take such apprentices were re-
 
 OF JUVENILE DELINQUENTS. IO/ 
 
 quested to send in their names, and the number of convicts whom 
 each would receive, I have little doubt that, within seven days, 
 you would get applications for five thousand. I may be wrong in 
 this calculation, and I should gladly be refuted if I am in error. 
 But I will not affect a confidence which I do not feel, and I throw 
 these observations out as a taunt to the colonists. Let me see 
 whether they will take any steps to repel it as they ought. 
 
 AGAINST THE IMPORTATION OF 
 JUVENILE DELINQUENTS. 
 
 [Public Meeting, Cape lown, July 4, 1842.] 
 
 The Hon. Mr. PORTER : I feel pleasure, Mr, Chairman, in 
 seconding this resolution. It is true that in another place I have 
 already expressed an opinion upon the important subject to con- 
 sider which this meeting is to-day assembled. But I cannot 
 think that I am thereby precluded from declaring concurrence in 
 the general views which have been here advanced, nor am I con- 
 scious of acting improperly in taking a position which I am always 
 glad to occupy that of meeting, as a citizen, the rest of my 
 fellow-citizens, in order to deliberate upon any matter vitally 
 affecting the public welfare. What I said in Council, Sir, relative 
 to the introduction of juvenile delinquents into this colony was, 
 from the suddenness of the occasion, necessarily unpremeditated. 
 I have, since then, considered the subject maturely, and the result 
 of that more mature consideration has only been to fix more deeply 
 in my mind the apprehensions which, from the first, the project of 
 importing convicts into the Cape powerfully excited ; to convince 
 me, thoroughly, that the measure suggested by Capt. Van Reenen and 
 acceded to by the Secretary of State will, if carried into effect, inevi- 
 tably produce evils of which it would be difficult to over-estimate 
 the nature and extent. Sir, I do not come here to denounce 
 the projector of the plan. He has not, certainly, been very
 
 IO8 AGAINST THE IMPORTATION. 
 
 favourably received to-day. But he has too much good sense, and 
 too much experience, not to feel, that he has only been exposed 
 to that sort of discourtesy which every man must expect to 
 meet who stands up, at a public meeting, to advocate opinions 
 to which that meeting is strongly and almost unanimously opposed. 
 Speaking for him, then (which I may be permitted to do, 
 seeing there was some difficulty found in allowing him to speak 
 for himself), I should say that it would be very wrong indeed 
 to pronounce any censure upon his moral sentiments, and, still 
 more, upon his moral character. This meeting is not called 
 upon to pronounce any such censure. He has solemnly disa- 
 vowed any other motives as actuating his conduct, than, on the 
 one hand, a benevolent desire to benefit the convicts them- 
 selves, and, on the other, an anxious wish to meet, if possi- 
 ble, the colonial demand for labour. You believe, and so do I, 
 that, misled by these motives, he has erred in judgment, and you 
 have a right, and so have I, to state what we believe ; but, 
 to proceed farther, and draw any harsh or uncharitable con- 
 clusions, would be both uncalled for and unjust. Quitting now 
 Capt. Van Reenen, it is scarcely necessary to defend the Secretary 
 of State. He needs no defence. Be this project good or bad, his 
 motives in acceding to it are obviously such as do him no dis- 
 credit. A mode is submitted to him, in which some unhappy 
 beings may be benefited ; and feeling for those, who have but 
 few to feel for them, he over-looks its advantages, and gives 
 it countenance. Consulting chiefly for the welfare of the con- 
 victs, he seeks to promote it by sending them out here. 
 But will his doing so really promote their benefit ? This 
 view of the question has not been dwelt upon to-day. Very 
 naturally, the measure has been hitherto considered with reference 
 to the mode in which it would affect our own interests, rather 
 than to the mode in which it might affect the interests of the con 
 victs themselves. In proceeding to offer now my thoughts upon a 
 matter which is still worthy of remark, I would observe, that we 
 have to do, not with the reveries of benevolence, but with the 
 rugged realities of life, and that it would be idle and absurd to
 
 OF JUVENILE DELINQUENTS. 1 09 
 
 dream of a number of youths, snatched from ruin in the mother 
 country, and after being washed clear of all their casual con- 
 taminations by the salt sea water applied upon their passage out, 
 happily apprenticed, on their arrival, to masters deeply conscious 
 of the responsibility of the charge which they undertake, and 
 certain to spare no pains in cultivating the minds and morals 
 of the boys. All such romantic expectations must be vain. 
 Those who, beyond all living creatures, would require the most 
 careful and judicious training, will receive absolutely none. The 
 education of the young, even under the most favourable circum- 
 stances, is a serious and solemn thing, and a gentleman who 
 preceded me (Professor Changuion ) touched upon this topic with 
 right and proper feeling ; but when the educator has not so much 
 to implant good as to uproot evil, when habits which have be- 
 come a second nature are to be overcome, when, in one word, the 
 convict is to be reclaimed, who can deny the tenfold difficulty of 
 the task ? Without their moral regeneration these convicts can 
 never attain to social respectability, and such moral regeneration 
 the masters whom they will get will never think of working out 
 Is this true or not ? In order to examine it a little, I 
 shall put the matter in two ways. These convicts must either 
 be apprenticed in our towns and villages, or else in the open 
 country. I assume that it would not be desirable to apprentice 
 them in towns. (Capt. Van Renen intimated assent.) I observe that 
 Capt. Van Renen agrees with me in this, and, indeed, no one who 
 reflects upon the dangerous facility of communicating with each 
 other, which would exist were the convicts located in towns, and 
 the additional opportunities which towns would present for the 
 commission of the very sort of crimes to which the convicts would 
 be most habituated, can fail to see, that if the delinquents are to 
 be reclaimed at all they must be removed as much as possible 
 from lemptation, and apprenticed in the open country districts. 
 But if you place the convict in the country districts of this 
 colony, how are you to protect him from that oppression 
 which his condition must invite ? Labouring as you do under the 
 inevitable evils of a scattered population ; with no rural police
 
 IIO AGAINST THE IMPORTATION 
 
 and with no remote magistracy, the apprentice must depend for 
 protection upon the stated visits of some officers who might be 
 nominated for the purpose, and the occasional interposition of some 
 well disposed Field-cornet. From even the frail protection of 
 public opinion the convict will almost necessarily be cut off. I 
 state then my deliberate conviction, that no regulations which it is 
 possible to frame, and no activity which the local authorities 
 could possibly exhibit, can adequately protect a number of juvenile 
 convicts apprenticed throughout the country districts of this colony _ 
 Everything must, in most instances, depend upon the master's will 
 and pleasure. No doubt if you can find masters fit to be entrusted 
 with absolute power, masters who are impelled to receive the 
 apprentice only by the interest which they take in his reformation 
 and advancement, all may yet be well. But what kind of masters 
 are they who will press forward to obtain apprentices of such a 
 character as these convicts bear ? Sir, my friend Capt. Van Renen, 
 and my friend, Capt. Wolfe, have stated in support of the measure 
 now under discussion, that many masters will be found to offer 
 who will receive convicts as readily as they would any other 
 class 
 
 CAPTAIN VAN REENEN : No, no. 
 
 Mr. PORTER : Well, it may be that I state this point too 
 strongly. But this, at least, is clear, that my friends have stated, 
 that masters for any number of convicts would readily come forward. 
 Is this readiness, then, an argument for the measure ? Sir, in my 
 judgment, it is an argument against the measure. Is that man 
 who, as the father of a family, rushes eagerly to seize on convict 
 labour, stimulated by its supposed cheapness is that man, I ask, 
 a person who has a due sense of moral obligation ; or 
 one who is likely to perform the difficult and delicate duty 
 which is involved in the care and education of a youthful con- 
 vict ? No man is fit to discharge that duty who does not feel the 
 responsibility of undertaking it. I should hesitate very much to 
 give a young convict apprentice to any man who told me that he 
 would not hesitate to take him. The moment a man evinces a 
 reckless anxiety to obtain such labour, that moment I conclude that
 
 
 OF JUVENILE DELINQUENTS. Ill 
 
 he is the most unfit man under heaven to be entrusted with it. 
 Sir, connected with this topic, there was an observation made by a 
 gentl-eman opposite ( Mr. Scrutton ), on which I would like to say 
 a word. Allow me, first, Sir, to observe, that ] heard that gentle- 
 man with pleasure, although it would appear that with the majority 
 of the meeting it was a little otherwise. But he is a philosopher, 
 and judging from the fortitude with which he endured all expression 
 of popular impatience, I should pronounce him of the stoic 
 school ; and I have to congratulate him upon carrying into practice 
 with so much success the principles of Epictetus. Sir, the obser- 
 vation upon which I wish to remark is not that which the gentleman 
 made in reference to the clergy, and which was so properly re- 
 buked, upon the instant, by my learned friend Mr. Brand. I cer- 
 tainly never, at any time, remember to have heard a more unfortu- 
 nate allusion. Sir, the ministers of the Gospel would have forgotten 
 their duty, they would have departed from that line of conduct 
 which they are bound to pursue, 
 
 " As ever in their great Task-master's eye," 
 
 if upon a question of this kind, a question which has no concern 
 with politics or party, but one which vitally concerns the moral 
 and religious condition of the community, they had not come for- 
 ward to head their flock in giving to the measure proposed their 
 conscientious opposition, and if they had found amongst their 
 people any symptom of apathy upon such a subject, it would have 
 well become them to rouse the parties from it by the exercise of 
 that legitimate influence which every clergyman, who is worthy 
 of the title, naturally and properly possesses. In this case, then, of 
 schoolmaster versus clergyman, I am clearly of opinion that the 
 defendant has the best of it. The gentleman will allow me to say, 
 that, as a zealous friend to education, I am always glad to see, as I 
 have done upon this question, the " schoolmaster abroad ;" and I 
 have only to express my hope, that when next he quits his calm 
 retreat, he will consider a little better the lesson which he under- 
 takes to teach. I come at last, Sir, to the remark which I wished 
 to notice. The gentleman stated, if I rightly understood him,
 
 112 AGAINST THE IMPORTATION 
 
 that young criminals had in former instances come to the colony 
 and been apprenticed here, without opposition or observation, 
 and he contended that you could not consistently draw any 
 line between those parties and the convicts now in question. 
 You have received, he says, apprentices who were delinquents 
 in fact, if not in form ; and you should not now object to receive 
 apprentices because they happen to be delinquents both in fact 
 and in form, since the difference between the cases is merely nomi- 
 nal. Sir, the gentleman refer?,of course, to the juvenile immigrants ; 
 and admitting just for a moment, and merely for the sake of argu- 
 ment, that the cases are somewhat parallel, I wish to direct the 
 attention of the meeting to the state of the juvenile immigrants. I 
 have lately read the pamphlet of the Rev. Mr. Saunders. I have 
 not been convinced by it. I cannot doubt but that this writer, 
 whose motives we must all of us admire, has overstated the evils 
 and understated the advantages of the juvenile immigrants in gene- 
 ral. But there is one point on which he dwells, which is, I pre- 
 sume, indisputable, for his testimony is corroborated by the 
 special magistrates who conducted the inquiry instituted by His 
 Excellency the Govenor, I mean the destitution of instruction to 
 which the immigrants are subjected. They may, perhaps, be well 
 fed, well clothed, and well lodged, generally ; but they are not 
 well taught, or rather they are not taught at all. This is a circum- 
 stance which could not be avoided in places where the Boer can 
 scarcely find means of educating his own children, much less his immi- 
 grant apprentices; and it should not be lost sight of when we are 
 endeavouring to ascertain the probable condition of another des- 
 cription of apprentices, who, beyond all others, stand in need of 
 testimony. But the truth is, that between your former immigrant 
 apprentices and your future convict apprentices, there is scarcely 
 the least resemblance. Very few, indeed, of the juvenile immi- 
 grants were criminals, for, greatly to their own credit and to the 
 public advantage, the committee exerted themselves strenuously to 
 exclude all young persons of notorious bad character. The few very 
 young thieves, who, at the beginning of the experiment, may have 
 been smuggled in amongst the rest, were lost in the number of chil-
 
 OF JUVENILE DELINQUENTS. 1 1 3 
 
 dren of untainted reputation. This is one great distinction. But 
 perhaps a distinction still more marked is to be found in the simple 
 fact that whatever the juvenile immigrants were, at least they were 
 not convicts. I believe that, in many instances, the fact of convic- 
 tion is more injurious to the character than the commission of 
 crime. So strongly am I impressed with this idea, that I should 
 be disposed to entertain more sanguine hopes of a given number 
 of persons who had merited conviction, but yet had escaped con- 
 viction, than of the same number of persons who had been convicted 
 without having really deserved it. This may appear a paradox. 
 But it will, perhaps, appear a paradox to no man who considers 
 the influence which a conviction must exert as well upon the 
 convict himself as upon those with whom he comes in con- 
 tact ; how careless the man or boy becomes who has once been 
 publicly deprived of character ; how there exists for him no 
 such hem penitentia as that which may still be open to those who 
 were at one time, perhaps, much worse ; how there may, almost, 
 be written above the convict's cell, what the great poet of Italy 
 saw inscribed over the portals of eternal woe, 
 
 " All hope abandon, ye who enter here." 
 
 Sir, it is true that I have now been speaking of the convicts' 
 personal character rather than of their social condition. But the 
 two things go together ; and so, were you even to conclude, 
 contrary to the fact, that the convict apprentice was, in all, save 
 the fact of his conviction, better than the former immigrant 
 apprentice, it would still by no means follow that he would not 
 run the risk of being much worse treated. What would be his 
 occupation ? Why, it would be that to which too many of the 
 juvenile emigrants are put, .even now ; herding cattle in the 
 fields ; without distinction of days, or variety of employment ; his 
 only companion some stray Hottentot, and his only indulgence the 
 gratification of licentious passions. He will gradually combine 
 the vices of his former state with the vices of his present, and join 
 the worst influences of civilized, to the worst influences of savage 
 life. Upon this subject, as my friend of the Commercial Advertiser y
 
 AGAINST THE IMPORTATION 
 
 who says he hates eloquence, is not present, 1 shall venture to be 
 eloquent, though not in my own language, but in that of William 
 Wordsworth, and I say that your convict apprentices will answer 
 somewhat the description which the poet gives of his pedlar hero, 
 Peter Bell, 
 
 "To all the unshaped, half human thoughts 
 Which solitary nature feeds, 
 Had Peter joined whatever vice 
 The cruel city breeds." 
 
 I confess, Sir, that when I reflect upon the sort of character which 
 the juvenile convict must be expected to possess, and the cir- 
 cumstances with which, possessing such a character, he would be 
 generally surrounded, I can anticipate nothing else than that he 
 will sink, from depth to depth, into still deeper degradation, and 
 hopeless of ever emerging, become miserable himself, and mis- 
 chievous to the community. Some farmers may still long for them. 
 They may say to themselves, " He is too young for cattle stealing, 
 and whenever he comes near the house we can turn the keys ; 
 keep a strict look out, and as soon as possible, dispatch him to the 
 bush again ; so, as we shall have him cheap, we will make him 
 serve our turn." But are masters who think in this way to 
 be trusted ? Believe me they are not the men to kill with 
 kindness. And how, I ask again, are the apprentices to be protected 
 from oppression ? The shambok is laid on, both hot and heavy : 
 what is the reason ? Oh, " the fellow is incorrigible, 
 do you not know, he came to me a convict ! " He is badly used> 
 for, of course, as a convict he deserves it all ; he is left totally 
 without instruction, for, of course, as a convict, he will learn no- 
 thing good, he is punished severely, why not ? he came here as 
 a convict, and of course, should be punished ! Sir, I say nothing 
 which any man can justly deem invidious, when I say that, 
 at the Cape of Good Hope, as at every other place, the exercise of 
 absolute power is apt to degenerate into oppression, and that abso- 
 lute power it appears to me that the character of the convict and 
 the circumstances of the country districts of this colony, would 
 virtually place in the hands of the generality of masters. If the 
 real nature of the case were laid before Lord Stanley, I greatly
 
 OF JUVENILE DELINQUENTS. 
 
 doubt whether he would consider the prospects presented here, for 
 the youths in question, such as to render him anxious t>> realize 
 them, and whether his Lordship might not deem that rhe money 
 which it would cost to settle the convicts at the Cape, could do 
 for them if expended in some other way. Having thus, Sir, 
 adverted to the merits of the project, as far as the apprentices 
 are concerned, the effect of the measure as it regards the colony 
 yet remains to be considered. Upon this part of the question> 
 I need not dwell. It has been exhausted by preceding speakers. 
 Professor Changuion, Mr. Watermeyer, and my learned friend 
 Mr. Ebden (whose able and animated speech I listened to with 
 pleasure), have urged many important topics with much earnestness 
 and force, and have, in my opinion, clearly proved, that every 
 principle of enlightened expediency would be outraged by the 
 introduction of such labourers, as those against whose transmission 
 you are now remonstrating. It may be said that I have spoken 
 too much of hard task-masters, and have been guilty of overlooking 
 masters of an opposite description. Be it so. I certainly do not 
 augur favourably of those masters who covet convict labour greedi- 
 ly, and I believe that the best part of our rural population will have 
 nothing to do with it. Admit, however, that a master may here 
 and there be found, who feels for man's infirmities, and who by a 
 certain generosity of nature, will forget the condition and charac- 
 ter of the convict, and treat him in a different fashion from that 
 which I have formerly described. This man will keep the boy 
 about his dwelling, employ him as a domestic, and thus, in a 
 place, where, as amongst every coloured population, a white face 
 is a species of distinction, the London convict will become the 
 companion of the sons and the daughters of the family, and com 
 municate the vices into which he was early initiated in that great 
 city, whfchywith/B its ample bounds, shuts in more sin of every 
 sort, than, of old, sank Sodom and Gomorrah ! But it is not alone 
 of the farmer and his family that we are called upon to think 
 There arc other classes whom we are bound to keep in our remem_ 
 orance. Sir, I appear as counsel for the juvenile immigrants already in. 
 the colony. On their behalf I supplicate that their prospects in life. 
 
 I 3
 
 Il6 AGAINST THE IMPORTATION. 
 
 may not be blasted by such a measure as is now proposed. When 
 you consider the want of accurate information which exists in this 
 colony, and the points in which the old emigrants and the new 
 will necessarily resemble each other, both classes young ; both 
 apprenticed in a certain form by Government, both sent out from 
 England, the result will be that the two parties will become in- 
 sensibly confounded in the minds of our colonists, and the effect of 
 that confusion will be, not to raise the convict immigrant to the 
 level of the immigrant of untainted character, but, on the contrary, 
 surely, though perhaps slowly, to sink the immigrant of untainted 
 character to the level of the convict. The juvenile emigrant 
 has difficulties enough, even now, to struggle with, and we 
 should strive to place no additional obstructions in his path. 
 Consider too the condition and the claims of your emanci- 
 pated slaves. The state of crime amongst this class at pre- 
 sent, is truly gratifying. But it is no aspersion on the character 
 of our coloured population, to say that the comparative absence 
 of crime amongst them, arises rather from temperament and 
 circumstances, than from any fixed moral principles. Give them 
 teachers and they will be sure to learn. When they do set 
 about stealing, at present, they seldom go knowingly to work, but 
 let them be instructed by masters who have graduated in the great 
 University of London, and I have no doubt, that their proficiency 
 will occasion much more surprise than pleasure. That any lessons 
 given would be thrown away, I do not think, for there is a dash of 
 cunning in the character of our coloured people that only requires 
 to be dexterously directed, in order to form as accomplished rogues 
 as need be. Finally, Sir, let us turn our eyes upon the liberated 
 Africans, lately introduced. England has done much for these 
 poor people, and she ought not now to risk the spoiling of 
 her own good work. The colonists, to their honour be it 
 spoken, have also done their duty. Exertions are being made 
 for the improvement of this class. But in vain shall you open your 
 evening schools to teach the liberated Africans what duty is, and 
 the eternal obligation of honesty and truth. Bring the convict in, 
 and he too will have his evening schools, where he will teach how
 
 OF JUVENILE DELINQUENTS. llj 
 
 the master may be choused, and the mistress baffled, and how a 
 lie well told can cover everything, and where he will contrive to do 
 more mischief in one year, than all the schoolmasters you can em- 
 ploy will eradicate in seven. Sir, I have now adverted to the 
 grounds upon which I am compelled to view the proposed experi- 
 ment with undissembled fear. I say again, that you should cast 
 no reflection upon Captain Van Renen's motives. Still less have 
 you any reason to arraign the conduct of the Secretary of State, and 
 I have admired the just discrimination which has led, to-day, to the 
 avoidance of every topic of offence. Lord Stanley has and 
 can have no unworthy end in view ; and it is, I think, a grati- 
 fying thing, at a period when the state of public affairs, both 
 foreign and domestic, presents so much that might well engross 
 the mind of every statesman, to see the Secretary for the wide 
 extended colonies of England, to whom is mainly entrusted the 
 government of an Empire on which the sun never sets, turning 
 for a time from the consideration of all that is commonly thought 
 worthy of the name of polities, and consulting how best he can 
 provide, at the Cape of Good Hope, for a number of poor, outcast, 
 friendless boys, confined for their offences in Parkhurst 
 penitentiary. But while I give all honour to the motives of Lord 
 Stanley, I must yet believe, that he has allowed some partial and 
 temporary expediencies to weigh too much with him, and that a 
 more comprehensive and far-sighted view of the entire question 
 would have led him to a different result. I, therefore, rejoice, that 
 from this meeting ; from the Cape Town clergy ; from the 
 Municipal body, and from other quarters, which may yet express 
 their sentiments, his Lordship will learn, that the judgment and 
 feeling of the religious, the moral, and the right-thinking part 
 of the community, are combined against the project contem- 
 plated ; and I trust that he will pause and consider before he 
 carries it into final execution. That the result of farther con- 
 sideration will be his rejection of the plan, I entertain a steadfast 
 hope. He will not, I think, when he is made acquainted 
 with your real views and wishes, pronounce, against your will, the 
 awful sentence, that the Cape of Good Hope shall be henceforth a
 
 AGAINST THE IMPORTATION 
 
 convict colony. He will feel, both as a moralist and as a states- 
 man, the full import of this formidable phrase. When he sees, 
 that, notwithstanding the demand for labour, and the strong tempta- 
 tion of delusive cheapness, you count all such consideration but as 
 the dust of the balance in which the attendant evils of the measure 
 are weighed, he will hesitate to send a number of young convicts 
 here, to import the vices of civilized people, and imbibing, in turn, 
 the vices of comparatively savage life. From the interposition of 
 your clergy, I look for much good. With sacred fire in their censer> 
 like the high priest of old, they take their stand between the colony 
 and these convicts, between the living and the dead, and you may 
 well hope, that the plague which threatens you will even yet be stayed. 
 Sir, one other word, and I have done. It is intended to expose a 
 confusion of ideas, which some persons fall into in reference to this 
 subject. Speak to them of the danger of contamination, and they 
 reply, " Oh ! a few convicts can do no harm." Speak to them of 
 the impolicy of uselessly running any risks at all, and they rejoin, 
 " Oh ! the colonial want of labour must, somehow or other, be sup- 
 plied." But these positions obviously destroy each other. We must 
 not blow both hot and cold together. If a few convicts can do but 
 little in the way of supplying contamination, a few convicts can do just 
 as little in the way of supplying labour. The converse of the propo- 
 sition will hold with equal clearness, and thus there are presented the 
 two horns of a dilemma. Utrum borum mavis accipe, impale your- 
 self on which you please but upon one or other of them those 
 must be fixed who cannot introduce a small number of convicts 
 without depriving themselves of their only reason for introducing 
 any, or introduce a large number without depriving themselves of 
 their only reason for disputing the existence of preponderating 
 evils. Sir, leaving the reasoners, to whom I refer, in this predica- 
 ment, I conclude by congratulating this meeting upon the feeling 
 which it has this day exhibited. You may want labour to develop 
 the resources of your colony, but you feel that it is no: by convict 
 labour that the pillars of your prosperity can be permanently 
 established. You feel that there is inherent in it a principle of 
 corruption and decay. You feel that morality is the only cement
 
 OF JUVENILE DELINQUENTS. 
 
 which can bind the social edifice firmly together, and, regarding 
 convict labour, as essentially immoral, you refuse to daub the wall 
 with such untempered mortar. 
 
 ON THE RIGHT OF THE JUDGES TO 
 ADVISE THE CROWN ON CONSTITU- 
 TIONAL POINTS. 
 
 {Legislative Council, August 13, 1842.] 
 
 ATTORNEY-GENERAL : Sir, I do not object to the Judges conduct 
 .and opinions being canvassed freely. I am not myself an ad- 
 mirer of their letter. I think it questionable in some principal 
 points, and there are some minor matters which I should have 
 wished had been struck out. But I cannot think that there is any- 
 thing in that letter which fairly called for the peculiar tone and 
 temper which have marked the animadversions of my hon. friend. 
 And with respect to the insinuations in which he has so liberally 
 dealt, in reference to the Executive Government. I hope that your 
 Excellency and each member of that Government can lay a hand 
 upon a heart as honest as any that ever beat in the bosom of my 
 hon. friend, and say 
 
 Mr. EBDEN : I made no insinuations against the Executive 
 Government. 
 
 ATTORNEY-GENERAL : I am glad to hear this broad disclaimer 
 If this be so, let my words go to the winds. But I speak in the 
 hearing of those who heard what my hon. friend said or rather 
 who heard the speech he read, leaving it to them to judge of the 
 accuracy of the hon. gentleman's recollection. Sir, I am not 
 here to speak on behalf of the judges. I do not come here to be 
 their counsel. Let the hon. member complain of them to the 
 Secretary of State, if he thinks that they deserve to be complained
 
 I2O ON THE RIGHT OF THE JUDGES TO ADVISE 
 
 of. But while I indignantly disavow everything like partizanship, 
 I must be still at liberty to express my opinions with respect to the 
 mode in which their conduct should be censured. Their law is 
 fair game, and we have had to-day from the hon. member a vast 
 deal of law. I said, the other day, that this Council, considered 
 collectively, was not a learned body. But the host of authorities 
 which have this day been referred to, certainly go far to redeem our 
 legal character. Where on earth he contrived to gather all his law 
 would be difficult to say, though I may, perhaps, venture to guess. 
 If I be right, he could not have resorted to a quarter where, in 
 every respect, it was so natural and so fitting he should seek assist- 
 ance upon a subject of this kind. But, respecting as I do, the motives 
 which led to that assistance, and entertaining as I do, a high opin- 
 ion of the ability by which he was assisted, I cannot but lament 
 that something more pertinent to the matter in question was not 
 placed in the hon. member's hands. I have read somewhere I 
 regret that I opened with too much heat to be much in the vein 
 for story-telling an anecdote which comes into my mind in con- 
 nection with this subject. Dr. Burney, the author of the History 
 of Music, somewhere wrote, in reference to his account of ancient 
 music, that he had looked at the classics through his son. Hogarth, 
 who was no friend of the Doctor's, immediately afterwards pro- 
 duced a sketch in which the said son was grotesquely repre- 
 sented with a telescope passed through him, in a slanting direc- 
 tion, and through which the Doctor was exhibited, gazing with 
 profound attention at the classics, arranged upon a distant shelf. 
 Now, it would almost appear to me that my hon. friend must 
 have looked at his law books through a medium of the same sort, 
 and that the said law books must have been at all times not merely 
 upon a shelf, but upon a very high shelf indeed, and one almost, 
 if not altogether, inaccessible. However, we have had one or two 
 taken down. Lord Coke has been introduced, as has also Sir George 
 Croke. Every man, as Bacon says, owes a debt to his profession ! 
 And no lawyer could feel pleasure in detracting from the fame of 
 Coke. It will be cheerfully admitted that the sturdiness of his 
 conduct when Chief Justice, as evinced in his communications with
 
 THE CROWN ON CONSTITUTIONAL POINTS. 121 
 
 King James, effaces, in some degree, our feelings of disgust at the 
 brutal, bull-dog ferocity with which, in the preceding reign, he 
 baited Raleigh at the bar. But what sort of doctrine did Lord Coke 
 lay down ? Why, that the judges ought not to give opinions in cases 
 between party and party. But will it be said that the judges of 
 England cannot be constitutionally consulted upon points of general 
 constitutional law ? If that be said, I say that that is not the law so far 
 as I knovv anything about it. I hold in my hand the work of a 
 writer of some celebrity in his day, and who is occasionally talked of 
 even yet ; but one who, I suppose, must hide his diminished head in 
 the presence of the " Jurist, " a three-penny weekly publication, got 
 up by some briefless barristers in London. The writer is Blackstone, 
 and the work is his Commentaries on the Law of England. Black- 
 stone expressly says, in speaking of the various Councils of the 
 King, that a third Council, belonging to the King are, his judges 
 of the courts of law, for law matters ; and again, that when, in the 
 books the King's Council is spoken of, then, if the subject be of a 
 legal nature, by the King's Council is understood his Council for 
 matters of law, namely, his judges. Now, when the question is not, 
 whether the reasoning of the judges is good or bad ; but whether 
 they had any right constitutionally to be heard at all when they 
 are held up to reprobation, not for what they have said, but for 
 having said anything when there is an attempt to get up a 
 hub-bub and hue and cry of unconstitutional interference, I 
 have a right to read the calm constitutional remarks of this great 
 authority, in order to show the light in which he viewed the 
 principle involved. But what more extra-judicial acts of the 
 judges have we? Do not the twelve judges of EnglandI beg 
 pardon, Sir, I believe I should say the fifteen judges (like Lord 
 Coke, who concludes that because there were twelve tribes, and 
 twelve apostles, so there should be twelve judges, I am partial to 
 the ancient number) but do not, I say, the judges of England 
 sit in the House of Lords ? Why although it may not be so 
 generally known, the legal reason why judges cannot sit in the House 
 of Commons is because they do sit in the House of Lords. And what 
 do the judges sit there for ? to show their wigs ? to sport their
 
 122 ON THE RIGHT OF THE JUDGES TO ADVISE 
 
 ermine ? No, Sir, they sit there as the solemn advisers of the House, 
 to assist the Peers upon all point of law. Their lordships will not call 
 upon them to do what is indelicate or to give their opinions in cases 
 between party and party ; but even beyond this boundary, see how 
 large a field is of necessity left open, by the variety of matters which 
 arise before the House, as well in its legislative as in its judicial capa- 
 city. Take even one part of the law of England the law of evidence 
 and see how much of that is composed of the resolutions of the 
 judges delivered in the course of the most memorable case that, per- 
 haps, ever occupied the attention of the world I mean the case of the 
 bill of pains and penalties against Queen Caroline. With such a 
 case with such a bar with such an auditory every point was 
 raised which ingenuity could devise, and every point was by the 
 lords referred to the judges, who retired and consulted together 
 upon the subject. Now he will be a better reasoner than 1 
 pretend to be who sees the difference in principle between the 
 English and unquestionably constitutional proceedings, of judges act- 
 ing as the law advisers of the House of Lords, and the judges of this 
 colony giving, under the circumsances in which they were placed, an 
 opinion upon the constitution of this Council. But let us come to this 
 Council itself, and ask, can it consistently uplift its voice against 
 opinions expressed by the judges out of court ? Are we to be fright- 
 ened by this solitary squib of yesterday, when we have been calmly 
 sitting upon gunpowder for years ? We refer to the judges every bill 
 for report. They are called upon to say whether, if passed into a 
 law, that bill would work in the colonial courts Now mark the 
 consequences of this system, as bearing upon declamation about ex- 
 tra-judicial opinions. I bring in a bill, and, being a bungler, I bring 
 in a bad one. But it passes the Council, and is referred to the 
 judges. The judges, for some reason or other, or for no reason at 
 all, return " no impediment," and duly certify to that effect. The 
 law goes forth ; and some great lawyer like my hon. friend, finds 
 that there is an impediment which was completely overlooked. This 
 is a point which the judges must in court decide. Now will any 
 man tell me, or tell this Council, or tell the public, that there 
 will not be as much pre-occupation of mind, and as great a dis-
 
 THE CROWN ON CONSTITUTIONAL POINTS. 123 
 
 position to resist the force of reasoning and the soundest analogies 
 of law, on the part of functionaries who have certified that there 
 was no impediment to the working of the law which was then 
 upon its trial, as could be supposed to exist under any conceivable 
 circumstances whatever ? I put it fearlessly to any man of common 
 sense to say whether any danger can reasonably be apprehended 
 from the giving of such an opinion as the judges have done upon 
 this occasion, which does not exist in an equal degree with respect 
 to every bill referred to them. I may mistake the applicability of 
 these remarks ; but if I understand the force of them, they go 
 pretty far, I think, to dispose of one objection which has 
 been so strenuously urged against the judges' letter. Then, there 
 arises a completely distinct question one, which having dis- 
 cussed before, I shall not now enter upon at any length ; I mean, 
 as to whether the judges, in writing to your Excellency, took a 
 proper course of expressing opinions which they had a right to form 
 and, which, subject, of course, to the force of argument, they had 
 an equal right to retain. I threw out, the other day, that several 
 ways were open to them ; that they might have written to the 
 newspapers, or placarded the walls, or communicated with the 
 chairman of the impeached committee. But I thought then, and 
 I think now, that it would be hard to show that they were not at 
 liberty to send their explanation to your Excellency, leaving it to you 
 to make such use of it as you might think proper. Your Excellency 
 as Governor, has a necessary authority over all officials, the judges not 
 excluded. For what appears to you sufficient reason, you may sus- 
 pend any of the judges. Does not this circumstance alone seem to 
 establish a sort of connection between your Excellency and the 
 judges, which does not exist between the judges and any other 
 authority in the colony, and point you out as the fittest quarter to 
 which the judges can address themselves when desirous to explain 
 any act of theirs which appears to require explanation ? For ought 
 that any one could tell, your Excellency might have considered the 
 refusal of the judges to give evidence before the Robben Island 
 committee, a good ground for suspension. To your Excellency, 
 therefore, it seemed peculiarly fitting that the judges should state
 
 124 ON THE RIGHT OF THE JUDGES TO ADVISE 
 
 their reasons for so refusing, involving, as those reasons chanced 
 to do, a review of the powers, privileges, and functions of this 
 Council. The letter addressed to your Excellency, under those 
 circumstances, in the exercise of your discretion you submitted for 
 the consideration of the Council ; and the nature of the debate 
 which it has elicited, sufficiently shows that it was an instrument 
 which you could not with propriety have put into your pocket. 
 We are now brought round again, Sir, to the consideration of that 
 letter, and of the soundness or unsoundness of the statements which it 
 contains. The hon. member on my left (Mr. Ebden) is correct in 
 stating that the greater part of the observations which I submitted 
 to the Council on the last day of meeting, were directed against 
 what were then understood to be the opinions of the judges. Since 
 that occasion, however, I have had several conversations, I might 
 almost say discussions, uoon the subject of the real meaning of the 
 judges ; and having thus been led to "enter anew into a careful 
 examination" of their letter, I am of opinion " after deliberate re- 
 consideration" (I cannot do better than adopt the language of the 
 letter) that there is nothing in what the judges have written which 
 is not quite consistent with the only meaning which I am assured 
 they intended to convey. I will not go as far as to say, Sir, that in 
 my humble judgment an ordinary reader would not have under- 
 stood them as going considerably farther than it seems they ever 
 meant to proceed. But I may now state and in so doing t 
 speak with some degree of authority that the judges never meant 
 to lay down, and do not wish to be understood as laying down, 
 anything more than two simple propositions : First, that by your 
 Excellency's commission, the Royal instructions, and the rules of 
 this Council, there is no power vested in the Council, or in any 
 conceivable committee of the Council, to claim, as matter of legal 
 obligation, the attendance of witnesses whose evidence they may 
 wish to take ; and, secondly, that even admitting that this Council 
 had such a power, and that every committee upon a bill had also 
 such a power, yet that this committee of inquiry upon Robben Is- 
 land would not have the same power, by reason that such committee 
 of inquiry is not expressly authorised by any of the instruments
 
 THE CROWN ON CONSTITUTIONAL POINTS. 125 
 
 creating the constitution of this Council. Upon this subject, Sir, T 
 ahall take advantage of some views which have been committed to 
 writing by an acute and intelligent friend who is better acquainted 
 than I am with what the judges really meant; -they are as 
 follows : 
 
 "It has been admitted, and is now undisputed, that the com- 
 mittee designated in Mr. Ebden's letter to the judges as " the com- 
 mittee of the Legislative Council appointed to inquire into the 
 convict establishment at Robben Island is not the Legislative Coun- 
 cil in committee, but a committee appointed by the Legislative Council to 
 inquire into the convict establishment at Robben Island." 
 
 "The judges are of opinion that as the instruments creating the 
 Council and establishing its constitution, do not prohibit the Coun- 
 cil from appointing committees of its members for the purpose of 
 procuring or endeavouring to procure, information on any subject, 
 that therefore (as already expressly stated in the seventeenth 
 paragraph of their letter), it is neither unlawful nor unconstitutional 
 for the Legislative Council to appoint any number of its members 
 who may consent to act, a committee to procure or endeavour to 
 procure for the Council information on any subject, and to make 
 inquiry for that purpose, and as neither the instruments creating 
 the Council and establishing its constitution, nor the standing rules 
 and orders duly framed by the Governor and Council " for maintain- 
 ing order and method in the dispatch of business in the Legislative 
 Council," prescribe any number of members as the quorum of which 
 any such committee so appointed as aforesaid must consist in order to 
 entitle it to act, or prescribe by whom any such committee shall be 
 presided over, that it is neither unlawful nor unconstitutional for the 
 Legislative Council to fix what number of members of any such com- 
 mittee shall be a quorum, or to appoint or empower such committee 
 to appoint any of its members, whether official or unofficial, senior or 
 junior, to be its chairman ; and therefore that it was neither uncon- 
 stitutional nor unlawful for the Legislative Council to appoint the 
 committee referred to in Mr. Ebden's letter to the judges, a 
 committee to inquire into the convict establishment of Robben 
 Island, and procure or endeavour to procure information for the
 
 126 ON THE RIGHT OF THE JUDGES TO ADVISE 
 
 Council on that subject, or to appoint any number of the members 
 to be the quorum, or to empower this committee to elect its own 
 chairman ; and that such committee, so appointed, might lawfully 
 assemble and meet under the presidency of the member wnom the 
 committee had elected to be their chairman, and might lawfully 
 make inquiries as to the state of the convict establishment of 
 Robbcn Island, and procure or endeavour to procure for the Coun~ 
 cil information on that subject, and report the same to the 
 Council." 
 
 tf But the judges are of opinion, as the instruments creating the 
 Council, and establishing its constitution, have not expressly given 
 to the Legislative Council the power to appoint any committee for 
 any such purpose, that therefore, as already expressly stated in the 
 seventeenth paragraph of their letter, the Legislative Council could 
 neither expressly or tacitly delegate to the said committee so 
 appointed, any of its powers, privileges, or functions, nor could 
 authorize or empower such committee in any way or to any extent, 
 to represent the Legislative Council, and that no resolution, order, 
 or proceeding, of any such committee, would be binding on any 
 person, or of any force or effect against any person ; and con- 
 sequently, although the Legislative Council had had (which the 
 judges deny that it had) given to it by the instruments creating it 
 and establishing its constitution, the power of compelling any 
 person to give or furnish to the Council any evidence or information, 
 and of imposing or inflicting any penalty or punishment on any person 
 who should refuse to attend upon the Council, or to give or furnish 
 to the Council any evidence or information, that the Legislative 
 Council could not expressly or tacitly delegate this power to the 
 said committee or authorize, or empower, or enable the said com- 
 mittee to represent the Legislative Council in the exercise of this 
 power, and therefore no resolution or order made by the said com- 
 mittee requiring the attendance of any person before them to give 
 evidence, or requiring any person to give or furnish to the com- 
 mittee evidence or information in any other way, would be binding 
 on that person, and that no proceeding taken by the said com- 
 mittee for the purpose of compelling any person to attend, or to
 
 THE CROWN ON CONSTITUTIONAL POINTS. 
 
 give or furnish evidence or information to the Council, or of im- 
 posing or inflicting any penalty or punishment on any person refus- 
 ing to comply with such resolution or order, would be of any force 
 or effect against such person." 
 
 Your Excellency will perceive that this statement is reducible to 
 the two propositions, to which I remarked that the judges wished 
 their meaning to be limited ; and it will be observed, with regard 
 lo these two propositions, that they are widely different in practi- 
 cal importance. The first, which alleges that the Council has not 
 a right to do a certain thing, is clear. It does not seem to be dis- 
 puted by anybody. My hon. and learned friend (Mr. Cloete) 
 states it as strongly as the judges state it. But it is growing 
 metaphysical it savours of refinement and seems to be travelling 
 out of the record, to say that even if the Council could do the thing 
 which it cannot, the Robben Island committee would still be 
 incompetent. " Your if" says Shakspeare, " is your only peace- 
 maker." But your if upon the present occasion, has proved no 
 peacemaker at all. It served as the introduction of a merely 
 speculative question, which it does not appear important to have 
 agitated, even if the judge's reasoning upon the subject were 
 perfectly indisputable. Now I certainly did consider, when I last 
 addressed the Council, that the judges meant what I have to-day 
 explained, and something more besides ; and I have committed 
 roughly here to paper the principal points which I, in common, 
 I believe, with most other people, understood them as convey- 
 ing. 
 
 1. That a new and deliberate reconsideration of the consti- 
 tution of the Legislative Council had, in some way or other, led 
 the judges to take clearer views of the subject, upon the present 
 occasion, than they might have done previously ; and that they 
 now saw some things differently from what they did before. 
 
 2. That the judges now considered that the Council, either 
 designedly or in error, had upon some previous occasions, so numer- 
 ous as to amount to a practice, acted in some way or other relative 
 to the creation or appointment of committees in a manner unconsti- 
 tutional and unlawful.
 
 128 ON THE RIGHT OF THE JUDGES TO ADVISE 
 
 3. That the unconstitutional and unlawful practice last referred 
 to was made up of cases in which committees of a like nature with 
 that now sitting upon the convict establishment of Robben Island 
 had been created, which said Robben Island committee was con- 
 sequently itself an unconstitutional and unlawful committee, when 
 considered with reference to the character which it was meant to 
 possess. 
 
 4. That the Council is not, by its constitution, authorised, em- 
 powered, or legally entitled to do any act as a Council, which act it 
 is not expressly authorised or permitted to do by the Royal Com- 
 mission, by the Royal instructions, or by its own standing rules. 
 
 5. That to nominate, appoint, or in any way create any com- 
 mittee, except a committee upon a bill, as expressly authorised by 
 the standing rules, in an act which the Council, acting as such, 
 could not legally do, because that act is not an act expressly autho- 
 rised by the Royal Commission, or by the Royal instructions, or by 
 its own rules. 
 
 6. That the Robben Island committee falls under the principle 
 last laid down, and that the appointment of it by the Legislative 
 Council, acting as such, was an unconstitutional and unlawful act. 
 
 7. That while it is neither unlawful nor unconstitutional for the 
 Council to ask any number of its own members, or of strangers, to 
 form themselves into a committee of inquiry, and to favour the 
 Council with the result of any inquiries which they may have it in 
 their power to make upon any given subject yet that such a com- 
 mittee, whether composed of members or of strangers, was not 
 considered by the judges to be, in any proper sense, a committee 
 of the Legislative Council, or a committee which the Legislative 
 Council, acting as such, had any authority expressly, or at all, given 
 to it, by the Royal Commission or the Royal instructions, or by 
 its own rules, to appoint ; and, consequently as the right to make 
 such appointment would be either a " power," a " privilege," or a 
 " function," the Legislative Council, acting as such, had no right 
 so to do ; that such a body of persons had no constitutional or legal 
 right to be recognised in a collective capacity as a committee of 
 the Council ; but were a mere voluntary association of individuals,
 
 OF JUVENILE DELINQUENTS. 129 
 
 and to be only regarded as such. That the Legislative Council 
 might popularly be said to resolve to form a committee to inquire 
 together, in the same sense in which they might resolve to form a 
 party to dine together ; that as the inquiring together and the din- 
 ing together must both be, in the strictest sense, voluntary and inde- 
 pendent acts upon the part of those who choose either to inquire 
 or to dine, the term "appointed by the Legislative Council" applied to 
 either case, would be used with some degree of laxity, seeing, 
 moreover, that in the case of the committee (contrary to the gene- 
 ral principle of committees appointed by public bodies, for the 
 performance of a certain duty) as well as in the act of dining 
 together, the parties assembled in no way represent the Council* 
 or partake of its character, or perform any function contemplated 
 by law." 
 
 I certainly did consider, Sir, that the views which I have here given 
 were deducible from the judges' letter. It is merely a question of 
 construction, and 1 take it for granted that I have been in error. 
 But, either the letter is not very well written, or else I have read 
 it very ill ; or, perhaps, the truth may lie between. As matters 
 stand, it may be considered, I imagine, that no questions of practical 
 importance are now contested, save some which will be found to 
 lurk under the general term " delegation." The judges say, I 
 think, that the Legislative Council may appoint all manner of 
 committees for all manner of purposes, but that it can delegate 
 none of its powers, privileges, or functions. Let us see what is 
 the meaning df this, and what consequences follow from it. We 
 will begin with the delegation of powers. The power, for example, 
 to make laws is the primary power of this Council. Could the 
 Council delegate to a committee this power of making laws ? [ 
 apprehend that the reason of the thing, the construction 
 of the written instruments, and the analogy of the House of 
 Commons, will all combine to show that this power is not 
 one which can be delegated by the Council to a commit- 
 tee. But, assuming; that the duties of the Council are 
 not confined to the making of laws, but extend also to the 
 making of inquiry into matters of public concern, then the ques- 
 
 K
 
 I 30 AGAINST THE IMPORTATION 
 
 tion will arise, whether the reason of the thing, the construction of 
 the written instruments, and the analogy of the House of Com- 
 mons, do not, in this instance, support, instead of opposing, the idea 
 of delegation as it regards a committee of inquiry appointed by the 
 Council. Come now to the delegation of privileges. Freedom of 
 debate is a privilege of this Council. What freedom of debate 
 means has never, I fancy, received a judicial determination. It 
 may mean one of two things, or it may mean both of them. It 
 may mean that your Excellency, sitting here, shall allow us freely 
 to express our sentiments, or it may mean that words spoken here, 
 affecting third parties, shall not be actionable, or, as my own 
 opinion is, it may mean both. Taking this to be the proper mean- 
 ing of the term " freedom of debate," as applied to the Council, 
 would the Robben Island committee have the same freedom ? 
 True, the judges say that that committee is not illegal, and that 
 its chairman is not illegal, and that its proceedings are not illegal. 
 But to say that it is not illegal is not to say that it is privileged ; 
 and I apprehend that upon the reasoning of the judges, it 
 would follow that our debates in the Robben Island Committee are 
 clothed with no protection whatever. In other words, the judges 
 will hold that the privilege of freedom of debate, like the power of 
 law-making, cannot be delegated by the Council to a committee. 
 Upon the other hand, the question seems to be viewed somewhat 
 in this way : the power of legislating almost implies a power of 
 inquiring, and, at all events, a power of inquiring is supposed to be 
 conferred by the Royal instructions. Under these circumstances, 
 the practice of all deliberative bodies, and the peculiar nature of the 
 thing to be done, point to committees of inquiry as the 
 obvious and proper mode in which the Council can perform 
 this part of its functions ; and therefore it must be taken 
 that the privilege of freedom of debate as much extends to 
 such committees as it does to the Council itself. Of the 
 delegation of " functions," I shall not stop to ? peak, because 
 I apprehend that the word is almost synonymous with " powers," 
 and that the observations which apply to the delegation of the one 
 will also apply to the delegation of the other. But from what I
 
 OF JUVENILE DELINQUENTS. 
 
 have thus thrown out, it will appear that there are still some ques- 
 tions open for discussion, which it would be very important to 
 have satisfactorily set at rest. For this purpose, I am for sending 
 home the judges' letter together with the resolutions as submitted 
 by my hon. and learned friend. It appears to me that we are not 
 in a position to affirm everything that is stated in those resolutions 
 although, for my own part, with the exception of some hard words 
 which my hon. and learned friend, however, cannot be blamed for 
 using, there are very few things in these resolutions from which 
 I should feel inclined to dissent. The judges, if they should wish 
 to show the Secretary of State in what particulars they have been 
 misunderstood or misrepresented, will, I presume, be entitled to do 
 so through your Excellency. In the meantime, it appears to me 
 that the most convenient course which the Council can adopt, will 
 be to transmit the two opposing statements for the consideration of 
 Her Majesty's Government, and to request such directions may appear 
 to be required. With regard to the resolutions which have been 
 moved to-day by the hon. member on my left, it appears to me that 
 the Council could accomplish no useful purpose by attaching them as 
 riders to those previously submitted. Their mover will, of course, 
 be entitled to send home both his resolutions and his reasons, 
 which gives him every fair play. But, as it appears to me that the 
 resolutions of my hon. and learned friend entirely exhaust the sub- 
 ject, as the intended riders breathe a tone with which I have no 
 sympathy, and as they add nothing either to the symmetry or the 
 strength of those by which they were preceded, I confine myself 
 to moving that the letter of the judges and the resolutions of 
 Mr. Cloete founded thereupon, be transmitted to Lord Stanley. 
 
 K 2
 
 132 ON CONCEALMENT OF BIRTH 
 
 ON CONCEALMENT OF BIRTH AT 
 MISSIONARY INSTITUTIONS. 
 
 [Criminal Sessions, Cape Town^ October 20, 1 842]. 
 
 In re ELIZABETH AUGUST. 
 
 The ATTORNEY-GENERAL, in summing up, observed at some 
 length upon the evidence ; and called the attention of the jury as 
 to the proof which went to shew that the child had been born 
 alive ; that it had met its death by violence ; that the violence 
 was the act of the prisoner ; and that, at the time when she 
 offered it, she must have in such a state of mind as to be accountable 
 for her actions. After remarking upon the preceding and some other 
 points, the learned gentleman said : I have now, I think, touched 
 upon the most important portions of the evidence produced in this 
 distressing case. The weight to be attached to that evidence is a 
 question entirely for you. Tf you have a reasonable doubt, give 
 the prisoner the benefit of it, and send her away with the Scrip- 
 tural injunction, "Go and sin no more." But if you have, and 
 can have, no shadow of doubt whatever ; if you are thoroughly 
 satisfied in your minds and consciences that this unhappy female, 
 in order to conceal an immorality which would have led to her 
 ignominious expulsion from the missionary institution in which 
 she resided, hardened her heart against her innocent offspring, and 
 put her new-born infant to death, then, gentlemen, you will do 
 your duty, and find the prisoner guilty. And here, gentlemen, 
 considering the circumstances of this case, and the situation which 
 I hold, I cannot deem it either unnecessary or improper to say a 
 word or two with reference to that rule of the missionary institutions 
 by which the prisoner's crime appears tome to have been prompted, 
 and which has been proved in court to-day. Gentlemen, for the 
 zealous and devoted men who give 'heir lives and labours to 
 missionary exertion, I entertain the most unfeigned respect. And
 
 AT MISSIONARY INSTITUTIONS. 133 
 
 if, where all are excellent, I were still obliged to give a preference, 
 I should be disposed to say that no class of Christian missionaries 
 are more nobly distinguished by their efforts to benefit their species 
 than the Moravian brethren. Under their primitive and apostolic 
 teachings their disciples learn to combine the active performance 
 of the duties of this life with the most fervent aspirations after 
 another and a better, and two things sometimes separated are 
 harmoniously reconciled ; I mean the doing with cheerful alacrity 
 whatever the hand findeth to do, and, at the same time, the 
 devoting of the heart to those higher objects which it is the great 
 aim of missionary zeal to keep in view. Entertaining these senti- 
 ments, gentlemen, I am not likely to speak disparagingly of the 
 arrangements of any Moravian institution, and if the rules now 
 under our consideration have elicited any harsh or condemnatory 
 remarks elsewhere in reference to such a case as that now before 
 this court, I should best consult my own feelings by standing 
 here as the apologist of the missionaries rather than their censor. 
 But I do feel that those good men have laid down a rule which, 
 considering the circumstances of the coloured population of this 
 colony, may, unless accompanied by the greatest care, produce 
 much evil. It sounds well, in one point of view, to say that the 
 chastity of young women is guarded by a regulation which subjects 
 to the shame and suffering of public explusion any unmarried 
 female who becomes a mother. But, in another point of view, such 
 a regulation works dangerously. Infanticide, gentlemen, ought, 
 one would say, to be a crime unknown to the lower classes in this 
 colony. None of the usual temptations to its commission exist 
 here. These temptations, so far as I am acquainted with the subject, 
 are chiefly two. When population is dense, means of subsistence 
 scanty, and mothers must starve themselves if they are to rear 
 their children, all the natural affections are stifled by the pressure of 
 physical want, and multitudes of infants perish without pity. Such are 
 the wholesale slaughters of Hindostan and China. In other and very 
 different circumstances, a regard to reputation will be found to 
 instigate the murder of illegitimate children. In countries where 
 the moral and religious tone of society is high, where the female
 
 134 ON CONCEALMENT OF BIRTH 
 
 who loses caste and character loses everything, it is sometimes 
 found that the perversion of a fine principle will urge to the perpe- 
 tration of the foulest of crimes, and that the frail mother does not 
 shrink from embruing her hands in her infant's blood. In Scotland 
 (at least at one time) I believe this principle has not been unknown* 
 and in the North of Ireland I have had occasion to witness the 
 operation of it in the course of my own professional experience. 
 But in this colony there is no want of such a nature as to stimu- 
 late to child murder. Nor, amongst our lower classes, generally, 
 does there exist any such stern severity of moral judgment in 
 regard to female frailty as might lead a woman to commit a fearful 
 crime merely to conceal the loss of character. At the missionary 
 institutions, however, there is a strong fear of expulsion, and the 
 prisoner at the bar is not the first miserable creature who has yielded 
 to that fear. Gentlemen, it appears to me that there is a peculiarity 
 connected with the operation of such a rule as that to which I have 
 alluded, which is not unworthy of being noticed. If that rule 
 were the natural growth of moral and religious feeling amongst the 
 coloured class itself; if it were merely the general sentiment taking 
 spontaneously a certain shape, it would, in all probability, be 
 attended with comparatively few dangers. No doubt, as I have 
 already said, female honour cannot be very greatly prized without 
 the risk that some females will commit great crimes for the purpose 
 of concealing the evidence that they have lost it. But where the 
 social law which punishes female immorality is only the natural 
 and unforced result of sentiments and principles which dwell 
 deep in the heart of that society itself, that law will be, to 
 a great degree, its own preservative ; for woman, in such circum- 
 stances, will be strongly fortified by sentiment and principle 
 against the original temptation, and even if she chance to fall, her 
 mind and moral feeling are too well disciplined to allow her to 
 incur the sin of murder rather than the shame of exposure. But 
 is the rule of the missionary institutions a rule of this description ? 
 Is it not a law imposed upon the people by their spiritual superiors, 
 instead of being a law created by the people for themselves ? And 
 does it not come to pass that females of infirm principles and half
 
 AT MISSIONARY INSTITUTIONS. 135 
 
 formed notions of right and wrong, confound all the boun- 
 daries of criminality, and, in their darkened imaginations, are 
 found to fear the frown of the missionary and expulsion from 
 the institution more than the guilt of murdering their off- 
 spring ? Do 1 therefore denounce the rule as vicious ? Gentlemen, 
 I will not take upon me to do so. I am too well aware of the rea- 
 sons which may be adduced in its support ; of the impolicy of 
 relaxing any moral law, merely because immoral practices are 
 prevalent ; of the impossibility of ever raising the standard of senti- 
 ment and feeling except by the erection of a ste/n and unbending 
 code of discipline ; of the probability that the evil attendant upon 
 the standing up, at once, against immorality, will prove short lived 
 and inconsiderable, whilst the evil of giving place to immorality 
 may generally be expected to prove permanent and immense ; of 
 the chance that very few children will be murdered by the rule, 
 whilst owing to it, very many females may be preserved from fall- 
 ing. Feeling the force of these and similar considerations, I 
 should be slow to say that the rule in question is a bad rule, and 
 one which ought to be rescinded. But if my voice could reach 
 the respected persons who have the management of those mis- 
 sionary institutions, and if the venerable gentleman who was exa- 
 mined here to-day, and who, I see, is still in court, could under- 
 stand the tongue in which I speak [Mr. Lehman spoke only 
 Dutch], I would say to each of them, as I would say to 
 him, " Sir, I sympathize with you, and respect you. To your 
 institutions and their objects, I give all honour. I acknowledge that 
 this rule of yours, however it may prove an unintended snare to 
 some of your people, was framed by men who feared God, and 
 whose only object was to enforce his laws. If your conscience 
 calls for its continuance, let it continue. But if it is to continue 
 you are bound to exert every energy to prevent it from producing 
 the evil which we see that it has a tendency to produce. You 
 have great power. This very case proves that you have great 
 power. It seems very strange, but it is true, that the conscience 
 of this miserable girl appeared to have been much more affected 
 by her having told a falsehood to the missionary about the death
 
 136 ON CONCEALMENT OF BIRTH AT MISSIONARY INSTITUTIONS. 
 
 of her child, than by the barbarous deed which caused that death. 
 Use then, your power, I beseech you, to organize in your institu- 
 tions such a religious police (if I may use the term) as no art 
 can ^baffle. Let every matron, let every father and every mother, 
 be employed by you to keep anxious watch and ward over the 
 young. Establish such a system of continual though delicate 
 inspection, as will effectually prevent the possibility of any female 
 under your care proceeding through the various stages of pregnancy 
 unnoticed and unknown. By this means you may render the work- 
 ing of your rule safe and salutary, and save the shedding of inno- 
 cent blood." Gentlemen, it is possible that such surveillance as I 
 have been speaking of may, even now, exist 
 
 CHIEF JUSTICE : It clearly did not exist in respect of the pri- 
 soner. 
 
 ATTORNEY-GENERAL : Unhappily, my lord, it would appear that 
 it did not. But, however that may be, I have thrown out these 
 remarks in the hope of calling tbe attention of the respectable and 
 respected men who have the charge of these institutions to what 
 is certainly an important subject. They will themselves discern 
 the obligation under which they are placed to prevent, if they can, 
 a rule which is probably wise, and which is certainly well meant, 
 from producing such disastrous results as those which have con- 
 ducted the unhappy prisoner at the bar to the place at which she 
 now stands awaiting the verdict which you are empannelled to pro- 
 nounce. 
 
 The learned gentlemen concluded by again telling the jury 
 that if they could entertain a rational doubt upon the case, it was 
 their duty to acquit the prisoner.
 
 ON THE HARD ROAD ACROSS THE CAPE FLATS. 137 
 
 ON THE HARD ROAD ACROSS 
 THE CAPE FLATS. 
 
 [Legislative Council, December 19, 1842.] 
 
 The ATTORNEY-GENERAL said : All the petitions which have 
 been, either spontaneously or otherwise, got up in connexion with 
 this Bill having been now presented, it appears to me to be con- 
 venient that I should offer to your Excellency and the Council 
 some observations of a general nature upon the principles involved 
 in the present measure, as compared with the principles upon 
 which certain of the petitioners have based their opposition. It is 
 necessary, for the purpose of being in order, that I should speak to 
 some motion ; and under our rules as they stand, I conceive that 
 the only motion which it is now competent for me to make is a 
 motion for some amendment in this Bill. [The Atorney-General 
 here read the I5th and iyth rules of Council, and proceeded.] 
 Pursuing, Sir, the course (not the most convenient one, perhaps), 
 which the rules would seem to have marked out, I shall move an 
 amendment. It is one of a merely formal nature. The substance 
 of the 6th section in the draft being again repeated, through 
 inadvertence, in section 10, I shall move that the former section be 
 expunged, and proceed at once to make those general remarks 
 which seem to me to be required. Allow me, then, in the first 
 place, to remind the Council of what I stated when originally in- 
 troducing the Bill, that the matter rests upon my own individual 
 responsibility as a member of this Council ; that it is in no way 
 whatever a Government measure, that its fate depends upon its 
 own intrinsic merits, and upon those alone ; and that it is only so far 
 as those merits may justly claim the conscientious vote of any 
 member, that that member can be expected to give this Bill support. 
 But even under these circumstances, I was for some time 
 {down, indeed to a considerable period after the publication ot 
 the draft), of opinion that my duty this day would have been very
 
 ON THE HARD ROAD 
 
 easily discharged. I had always found that when Bills were brought 
 in of which the usefulness was evident, no defence of their provi- 
 sions was ever deemed necessary on the part of the proposers, who 
 would have felt that they were consuming time and affronting rea- 
 son by entering into an elaborate demonstration of that which no 
 body denied. I had fallen into the error of supposing that the I9th of 
 December, 1842, was a day too late for discussing such a question as 
 whether a good hard road along the whole line from Cape Town to 
 Graham's Town was or was not a desirable thing ; whether it was or 
 was not an advantage both to town and country to take the first great 
 step owards improving the roads belonging to the great corn districts? 
 by laying down, as it were, a grand trunk to which branch roads might 
 by afterwards attached ; whether or not the natural and inevitable 
 tendency of such a road would be to give an impulse to industry, 
 to a certain extent to annihilate time and space, and raise the 
 value of property, and whether in fact it would be possible to 
 invent, for this colony or any other country, the idea of any road 
 whatever, which, from the obvious advantages to be derived from 
 its construction, might be expected to command a greater measure 
 of support. Such general considerations sufficiently convinced me. 
 But they have not, it would seem, convinced the parties whose 
 petitions have been read to-day, and, which we heard with that 
 attention to which the petitions of the colonists are at all times 
 entitled. Those petitions are signed, if I correctly caught the 
 number from my honourable and learned friend who calcu- 
 lated it Mr. Cloete), by some 1,200 persons, and they pray 
 the Council to reject this Bill. How, exactly, the signatures to 
 those petitions have, in all instances, been obtained, it is not for 
 me to say, but if the Municipality of Stellenbosch are right in their 
 assertion, those petitions can scarcely be taken to express the un- 
 biassed and intelligent opinions of many of the persons whose 
 names they bear. I have no right to pronounce that those peti- 
 tions have been assiduously hawked about the country, and that 
 ignorant people have been misled as to the real nature of the mea~ 
 sure in question, though I do believe that such has been the case ; 
 but I may, I think, with confidence assert, that no signature is to be
 
 ACROSS THE CAPE FLATS. 139 
 
 found attached to any of the petitions in favour of the Bill which 
 was not affixed spontaneously and willingly. This, however, is 
 not all. Between the petitioners for the Bill, and the petitioners 
 against the Bill, there is another great distinction. The petitioners in 
 favour of the Bill ask for leave to pay their money ; and the petitioners 
 against the Bill ask that they may not be called upon to do so ; and 
 who does not see that while no man will ever ask for leave to pay 
 money unless he well knows why, many and many a man will resist 
 everything in the shape of an assessment without being able to 
 render any good or valid reason whatsoever ? Take the case of a 
 man not particularly brilliant or far-sighted ; and one who sees that 
 an immediate demand, however trifling, is meditated to be made 
 upon his purse, and he will easily be led to put his name to petitions} 
 involving principles which, if the subject where fully explained to 
 and understood by him, he would be ashamed to support. But in 
 what light, Sir, are we to view petitions ? If we are here merely 
 to add up the number of names attached to certain pieces of paper* 
 and to register the result by voting with the greater number, the 
 sooner such a miserable mockery of legislation as this Council 
 would present is consigned to the tomb of all the Capulets the 
 better. But you cannot degrade yourselves so far as to receive the 
 dicta of ignorance or miscalculating selfishness, and to decide, by the 
 short, arithmetical, operation of counting the names of your petitioners, 
 whether any given measure is good or bad. This Council is not pre- 
 pared, I hope, to act upon this principle, but even if it were, I enter- 
 tain grave doubts, indeed, whether, if every petitioner who has 
 signed against this bill were here to-day, and were fairly interro- 
 gated with respect to the grounds and influences under which he 
 acted, the result might not lead to reduce materially the number 
 of signatures which have now been marshalled in opposition to 
 the measure. Be that, however, as it may, one principle is clear, 
 namely, that to improve the means of internal communication by 
 the construction of roads, and to provide for the expense of so 
 doing by an equitable assessment of property, is one of the most con- 
 stitutional and the most expedient branches of Legislative power; 
 and although every man, and every woman, and every child in the:
 
 14 ON THE HARD ROAD 
 
 two districts of the Cape and Stellenbosch should oppose the mea- 
 sure, yet still, if this Council (I put an impossible case, but no 
 matter) still, I say, if this Council, giving due weight to argument- 
 deliberating upon the inconvenience cf going against the pro- 
 nounced opinion of the public taking into account the existence 
 of prejudice (for even prejudices are not to be overlooked in 
 politics) should, after all, come to the calm and deliberate con- 
 clusion that the general good required the enactment of this 
 ordinance, then it would be the duty of this Council to con- 
 sult the general good, and to enact this ordinance, and not to 
 submit their understandings to any blind, unreasoning opposition. 
 To me it appears that the petitions in favour of this bill consult the 
 general good, and that the other petitions which have been pre- 
 sented oppose the general good. To me it appears that some of the 
 principles laid down in the petitions against this bill are unsound, 
 are lamentably unsound, are principles which, if carried out to 
 the entire of their darkening extent, would extinguish this end of 
 the colony altogether. But let me, here, be just. The petitions 
 read to-day are not all of the same nature, nor do they all stand 
 upon the same footing. You have, in fact, Sir, two classes of peti- 
 tioners, both of whom object to the present bill ; but who object 
 upon grounds altogether distinct, and upon grounds which require to 
 be accurately discriminated, and weighed with very different care. 
 One large class of petitioners advance the bold and broad proposition 
 that soft roads are better than hard roads, or rather that roads 
 partly hard and partly soft are the neplus ultra of all thoroughfares. 
 They would not have anything but soft sand though they were to 
 have it for nothing. Were an angel from heaven to descend and 
 make a hard road, without any money at all, those petitioners 
 could not be persuaded but that he was an emissary from below, 
 so mischievous would they deem the work he did. Were a hard 
 road to-be made by magic (which is not likely, for conjurors are 
 scarce in this colony, particularly in the rural districts) it would 
 ruin the farmers utterly. Such are the views of many of your 
 petitions. But there is another class of petitioners who must not, 
 I admit, be confounded with the last. Their language is, " We
 
 ACROSS THE CAPE FLATS. 
 
 don't agree with these people whose heads are as soft as the roads 
 
 they prize, or think that good roads are not a great blessing. We 
 
 wish a hard road to be made, but we object to the manner in which 
 
 you propose to raise the means of making it." Now I quite under- 
 
 stand this position, and am quite willing to consider it calmly and re- 
 
 spectfully, and before I sit down I shall explain the extent to- 
 
 which I am disposed to modify this bill in accordance with some 
 
 suggestions which have been made. But both classes of objections 
 
 are now before the Council, and upon both the Council must 
 
 decide. With regard to the first, I protest, sir, I shall not argue 
 
 it. I believe that it is an objection by which some of those who 
 
 were the earliest, and who have since been the most active, in 
 
 opposing this bill would be a little startled. In a speech delivered 
 
 by my learned friend, Mr. Brand, at the public meeting lately held 
 
 at the Commercial Exchange, he reviews the history of the question. 
 
 He says that in 1837 Dr. O'Flinn and Mr. Faure were deputed, by 
 
 whom ? he asks " Why, by a set of those so-called ignorant Dutch 
 
 farmers, to endeavour to raise a fund for establishing a hard road." 
 
 He says, that in that same year, 1837, a public meeting was held 
 
 in the same room in which he then was speaking, and resolutions, 
 
 asserting the propriety of making a hard road over the Flats were 
 
 unanimously adopted. He says, that in 1839 the question was 
 
 again mooted by the Agricultural Society, when the same unani- 
 
 mous and enthusiastic feeling was again exhibited. Now, I say, 
 
 that under these circumstances, this objection to the principle of a 
 
 hard road comes suspiciously late. I say, that under those circum- 
 
 stances, I doubt its absolute sincerity. Why ? Because, though the 
 
 measure was before the public, and under discussion for five years, 
 
 it is not until a practical mode of carrying out the end in view is 
 
 biought forward, and parties are called upon to contribute something 
 
 towards its accomplishment, that any murmur of opposition is heard. 
 
 And I have no doubt whatever, that if, at the meeting where Mr. 
 
 Brand made these statements, any one had ventured to assert that 
 
 the farmers of this end of the colony were senseless enough to 
 
 prefer a miserable soft road to a good sound hard one, my learned 
 
 friend, who feels himself to be the constituted champion and literary
 
 142 
 
 ON THE HARD ROAD 
 
 organ of the parties so alluded to, would have indignantly denied 
 the charge, and denounced it as a calumny. And if we once go 
 along with these people, where are we to stop ? Good God ! they 
 talk about the feet of oxen ! I am no agriculturist. I can neither 
 form nor offer any opinion as to the species of animal best suited to 
 the circumstances of this colony, and most serviceable as an instru- 
 ment of transport. But this, I think, I may safely say, that no 
 country has ever much advanced in the career of civilization, or 
 agricultural success, in which the ox has continued to be the 
 main dependence of the farmer, and the almost exclusive means 
 of conveying his produce to its destined market. It may be that 
 no other beast would suit this colony at present. I will not enter 
 upon that question. Neither will I enter into any consideration of 
 the soundness of the calculations made by some of the petitioners 
 respecting the first cost of the horse and the mule ; the expense of 
 iron for shoeing them, and the difficulty of supplying them with 
 provender. I know, indeed, that intelligent men entertain doubts 
 upon this head, and looking at the comparative activity, ability to 
 endure fatigue, probable length of service, and, when properly 
 managed, facility of subsistence of the ox and the mule, are dis- 
 posed to think that the latter is, in the long run, the cheaper 
 of the two. But I do not deem it necessary to take up any 
 position of that kind. I am quite content to occupy another, 
 from which it will be very difficult to drive me. Is it not 
 monstrous to talk about the mischief of a hard road from this 
 to the Eerste River, when, with the exception of that five-and- 
 twenty miles, every foot of road in the whole colony is hard ? The 
 petitioners have stopped short. Why do they not go on and entreat 
 the Council to make a grant of money for the purpose of breaking 
 up the abominable hard roads we have already, and by employ- 
 ing every spade and pickaxe in our power in that enlightened 
 undertaking, consult for our colonial prosperity and welfare ? Abol- 
 ish, first and foremost, that pernicious innovation, the road to 
 Simon's Town ! This was a work of the same dangerous nature 
 with that now so vehemently deprecated. And here allow me, Sir, 
 to throw in a word about our friends of Simon's Town. They
 
 ACROSS THE CAPE FLATS. 143 
 
 are indignant, I find, at being called upon to contribute towards 
 the making of a road which, they say, they cannot use. But if 
 other people had not contributed to the making of a road which 
 they were not to use, where would have been Simon's Town 
 and its petitioners ? Other people, it seems, are to make a road for 
 them, and they are to assist in making a road for nobody. The 
 Scotch proverb goes, that " Gif, gaf, makes gude fellows," though 
 the Simon's Town petitioners rather advocate a species of Irish reci- 
 procity, in which all favours are to proceed from one side. How- 
 ever, to return to what I was saying, let the road to Simon's Town, 
 at any expense, be broken up, and made soft and comfortable. How 
 hateful are those Wynberg omnibuses, running lightly in and out 
 of Cape Town, three or four times a day ! The gorge of Draken. 
 stein rises at the sight. By all means let us contrive to get rid of 
 these abominations, and manage to visit Wynberg as seldom as we 
 can, and then proceed in the good old way, in an ox wagon, with 
 the soft sand up to the bellies of the beasts and the 'naves of the 
 wheels ! Once make a hard road over the Flats, and who knows 
 what next ! Why it will be all alive with travellers and vehicles ; 
 and who will venture to secure cur respectable petitioners that their 
 eyes may not be blasted by seeing some fine morning or another 
 a Stellenbosch omnibus rolling rapidly along. Dire and dis- 
 astrous, Sir, are such anticipations ; for if, upon a hard road, 
 under any circumstances, men travel to their ruin, let them 
 once put themselves into an omnibus, and they are sure to 
 drive headlong to the devil. Sir, I can pause no longer upon an 
 objection which I have only ventured to ridicule because, in sim 
 pie truth, it seemed to me unworthy of a serious refutation. But 
 another objection is made of a more reasonable kind. Certain of 
 the petitioners say that their places are considerably removed from 
 the line of the intended road ; that the intermediate space which 
 they will still be obliged to travel over is very heavy, and that 
 they will be obliged, in consequence, to employ as many oxen to 
 reach the new road as would have sufficed to drag the wagon 
 through the old one. It is clear, however, that even were matters 
 to continue thus, something would be saved even to those people
 
 144 ON THE HARD ROAD 
 
 in the wear and tear of oxen. But it is clearer still that the effect 
 of this great work would naturally be to promote the improve- 
 ment of the roads which lead to it. The existence of the great 
 impediment presented by the Cape Downs operates as a bar to all 
 improvement beyond it and around it. Remove this impediment by 
 making a good road, and it will instantly become a matter of impor- 
 tance to see how far it may be practicable to connect branch roads- 
 with the great trunk which will then be opened, to make what is 
 good yet better, and (if no facilities for transport can save the wine 
 trade, as I fear they cannot), to open up those inexhaustible corn 
 districts which now support themselves with difficulty against the 
 heavy cost of carriage. But all things are not to be at once 
 accomplished, and to determine to do nothing until you can do 
 every thing, is the sure way to keep matters for ever as they are. 
 Sir, I come now to the second class of objectors, whom I set out 
 by describing. They are for the road, but they are against this 
 bill. Rejoicing to have with me to such an extent their intelli- 
 gent support, I cannot refrain from reading again one of the reso- 
 lutions of the Cape Town Municipality, in which the advantages 
 of the proposed road are very correctly estimated and very 
 strongly put. The resolution to which I refer is this, 
 " That in the opinion of this board the construction of a hard 
 road across the Cape Downs, by diminishing the expense of 
 carriage, and removing one of the great obstacles to the advance- 
 ment of this colony, will not only have a beneficial tendency by 
 opening free and easy communication with the remote parts of the 
 country, placing, them nearly on a level with those in the neighbour- 
 hood of town, and raising- their value, in a commercial point of 
 view, but will at the same time render available for other purposes 
 the capital at present sunk in providing for the rude and difficult 
 means of transport, and thus by increasing the quantity of export- 
 able produce, confer a lasting benefit on the community at large.'* 
 We have now escaped, Sir, out of darkness. The resolution which 
 I have read enunciates sound truths, and enunciates them well. 
 Upon the principle contained in that resolution I take my stand. 
 Every position laid down by the commissioners is true, and the
 
 OVER THE CAPE FLATS. 
 
 last is emphatically so ; for, surely, it does not require that a 
 man should have been employed all his life in in-spanning and out- 
 spanning, to be able to perceive that the necessity of having 18 or 
 20 oxen, with suitable attendants, in order to drag three leaguers of 
 wine, or 10 muids of wheat, or 2,000 pounds weight of anything, 
 through the only paths by which the Cape Town market can be 
 approached, must involve an enormous, a ruinously enormous, ex- 
 pense, so long as that necessity continues ; and that if a road can be 
 made by which much more produce may be carried in much less 
 time, and with a much smaller number of cattle, an amount of 
 capital and labour will be thereby disengaged which, judiciously 
 applied, may materially increase the productive power of this end of 
 the colony. Here, then, the Cape Town commissioners and the 
 friends cf this bill are cordially agreed, But at this point the com- 
 missioners fall off from us, and rank themselves with those who 
 object to the means by which the bill proposes to raise the 
 money required for the accomplishment of this great work. The 
 manner in which the bill proposed to raise the necessary funds 
 is simply this, to make the road by means of an assessment upon 
 the owners of immovable property within the two districts and 
 to maintain the road by means of reasonable tolls to be paid by 
 those who use the road, or for whose use it is provided. The 
 assessment, it is obvious, will be regulated by the amount required 
 for laying down the road. The proceeds of the tolls cannot well 
 be estimated at present, but the bill contains a provision that in 
 case a surplus should arise from that source over and above a 
 reserved fund of a reasonable amount, then all moneys not required 
 for the maintenance of the road should be at the disposal of the 
 colonial legislature, for the time being, and be applicable to the 
 purpose of any work of a public nature, within the two districts of 
 the Cape and Stellenbosch, which might be deemed deserving. It 
 may be that the prospect of any considerable surplus is one which 
 is not likely to be realized. Be it so. Then we throw that considera- 
 tion overboard, and narrow the principle of this bill to a rate 
 payable by the owners of fixed property, in order to make 
 the road ; and tolls payable by parties using the road in
 
 146 ON THE HARD ROAD 
 
 order to preserve it. Sir, I consider this principle to be a 
 sound principle ; to be the only sound principle to be, situated 
 as we are, the only principle upon which the work can possibly be 
 done. But I have no abstract fondness for it. On the contrary, 
 there is another which, if it were applicable to our circumstances, 
 I should certainly prefer ; I mean the ordinary principle of turn- 
 pike trusts in England. There money is borrowed upon the secu- 
 rity of the tolls to be afterwards levied, and when the road is 
 ready, are imposed to keep it in repair keep down the interest 
 and ultimately to pay off the mortgages. But no man who hears 
 me considers that the road over the Cape Flats, considering the 
 original expense of making, the annual expense of preserving and 
 the amount of traffic to be calculated upon could be formed 
 upon the principle to which I have adverted. It may be question- 
 able whether the tolls will always suffice for the mere maintenance 
 of the road ; but if you add to that the interest of the money ex- 
 pended on its construction, it will clearly be seen that anv 
 attempt to carry out our project upon the English plan would 
 tend inevitably to one or other of two results, or, perhaps, to both, 
 namely, that the whole concern would end in bankruptcy, 
 or that tolls must be imposed so ruinously heavy as to be- 
 come an intolerable burthen. By the last returns which I have 
 seen, it appears, if I remember rightly, that the expense of maintain- 
 ing turnpike roads in England averages about ^35 per mile per 
 annum. The cost connected with the intended road would prob- 
 ably exceed this rate ; and although I cherish the expectation that, 
 with an active and economical management, making the most of the 
 tolls and the least of the maintenance, the proceeds of the one will 
 be found to cover the outlay for the other, I should, at the same 
 time, regard as utterly chimerical, the notion that upon the mere 
 support of tolls the making of the road could be attempted with any 
 prospect of success. I do not believe that there can exist, upon this 
 subject, any difference of opinion. The road, if to be made at all, 
 must be made by means of an assessment of some sort or other. 
 The assessment proposed by this bill I have already stated, and I 
 shall now run rapidly over the objections made to it, prepared to
 
 OVER THE CAPE FLATS. 147 
 
 yield everything which can be given up without a sacrifice of princi- 
 ple, and to support what I cannot give up, with what appear to me 
 to be sound reasons. First and foremost, then, it is asserted that 
 none should be assessed to make this road except those who are to 
 use it. This principle is a plain one, and it is not destitute of 
 plausibility. But once apply it steadily and you put an end to all 
 improvement whatsoever. The various subdivisions of gradually 
 increasing extent by which we are surrounded, municipalities, 
 districts, and finally the colony itself, must each in turn be viewed, 
 for certain purposes, as one ; and the various members must bear 
 each other's burthens. Under the system of municipal taxation the 
 man in Kloof-street pays for repairing the street at the toll. It is 
 vain for him to say, " I never use Sir Lowry-street ; I never drive 
 to Rondebosch ; I hate the south-easter and the dust ; I drive to 
 Green Point when I drive at all ; and why should I be taxed for 
 what I don't use ?" The answer is that he belongs to the munici- 
 pality, and must, therefore, share in the contributions of its members, 
 and that such a principle of exemption once admitted would make 
 all municipal improvement perfectly impracticable. You will also 
 perceive, Sir, that no reasoning will prove that it is unjust to call 
 upon a man to pay a rate for a road which he makes no immediate 
 use of, which will not also prove that every man should pay toll 
 for a road in proportion to the use he makes of it, and that to charge 
 men who scarcely travel farther than the turnpike gate as much 
 as you charge men who travel the whole length of the road, is an 
 injustice. But is this possible ? My hon. and learned friend opposite 
 (Mr. Cloete) lives at Woodstock. He consequently only uses some 
 two or three hundred yards of the Simon's Town road, and yet he is 
 charged at the same rate as I am, who live at Rondebosch ; and 
 I, in turn, pay equally with the visitant to Wynberg, and so on, all 
 along the road. I know of no principle which will justify this, 
 inequality except the principle that the general advantage of the 
 public is promoted by the road ; that the neighbourhood, considered 
 as a whole, is made the better by it ; that it is one of the social 
 obligations undertaken by us all to contribute towards objects, 
 intended to advance the common good ; and that there is no- 
 
 L 2
 
 I4-S ON THE HARD ROAD 
 
 practicable mode of arranging those contributions with reference to 
 a nicely graduated scale of individual advantage. This is why my 
 hon. and learned friend pays for the road to Simon's Town ; and 
 this is why the people of Simon's Town should pay for a read 
 to Stellenbosch. To charge tolls at so much a mile is imprac- 
 ticable. To arrange an assessment according to calculated benefit 
 is alike impracticable. The most we can do is to make a general 
 approximation to what, if possible, would be abstract justice. Mr. 
 Brand distinctly admits the propriety of imposing local taxation for 
 local purposes. Upon this point there is, I believe, a pretty general 
 agreement. Then the problem to be solved is this : " What is 
 local taxation ?" " Where are you to draw your lines and fix your 
 boundaries ?" Now, I am far from maintaining that if the colony 
 were not already divided into districts, and if I were sitting down 
 to mark out the limits within which an assessment for making this 
 road should be imposed, I am far, I say, from maintaining that I 
 should have included the Cape and Stellenbosch divisions, exactly 
 as they stand ; on the contrary, I should probably have omitted 
 some quarters which come within those districts, and I should have 
 included some quarters Caledon for instance which lie be- 
 yond them. But when I find the justice of local taxation for 
 local purposes generally recognized, and find also that a division 
 into districts already exists, and find, moreover, that the road 
 in question will lie within the limits of the Cape and Stellenbosch 
 districts, I deem it the best and wisest course to adopt the limits 
 of those districts for the operation of assessment, and not to at- 
 tempt the creation of a novel subdivision a task which no power 
 on earth could satisfactorily perform, and which would be inevit- 
 ably attended with infinitely more of heartburning, confusion, and 
 annoyance, than can arise from adhering to those long established 
 limits which have created a something like communities, and the 
 inhabitants of which are accustomed to co-operate together. If, 
 then, certain districts are to be assessed, we can make no exceptions. 
 What took place relative to the market dues on wool ? The Gov- 
 ernment endeavoured to protect that, the great hope of the colony, 
 from the imposition of market dues. We said, '' It does not use
 
 OVER THE CAPE FLATS. 149 
 
 your market, and will not use it unless it is forced. It receives 
 no benefit, for unlike cabbages and such matters, it is exclusively 
 for export. Let those articles which enjoy any advantage from 
 your market pay the dues. But wool, confessedly, is not one of 
 these." This was what we said, and, in the long run, we were 
 defeated, because the municipality had a principle in their favour, 
 and we had none. They said that a public market was a public 
 good ; that a public market could not be kept up without market 
 dues, and that, if any one article were allowed to go free, a num- 
 ber of other articles would claim a similar exemption, and the 
 result would be interminable bickering and confusion. Influenced 
 by such considerations, your Excellency, I remember, sooner than 
 your Executive Council, saw the propriety of not insisting further 
 in favour of the wool, and the point was given up. Now, every- 
 thing that the municipality said then relative to the dues and their 
 market, I can say now, relative to this assessment and this road. 
 But I think there are very few, indeed, throughout the entire 
 of the two districts, who, either by themselves or their connections, 
 will not reap same advantage from this road, and feel that, 
 for their comparatively trifling assessment, they have received an 
 ample equivalent. If they don't get it in meal they will 
 get it in malt. And if, after all, there will still be found a 
 certain number who must pay and who yet receive no benefit, they 
 must only reflect that they are only suffering one of the ills that 
 flesh is heir to, and that as measles, small-pox, smoky chimneys, 
 and scolding wives, are miseries over which it is useless to repine, 
 so is the liability of those who live in a district to district taxation, a 
 misfortune which it is altogether impossible to shun, So much for 
 the general objection advanced against the principle of the bill upon 
 the table. Sir, I come now to another petition written, not by a 
 great unknown, but by a very able and well known pen, that of my 
 friend Mr. Sutherland. He runs, it appears to me, to another extreme. 
 So far from saying that those alone should make the road who are 
 to use it, he lays down a rule precisely opposite, and maintains 
 that the road should be made by means of a general tax to be borne by 
 the entire colony. I shrink from this conclusion ; I do not feel that
 
 I 50 ON THE HARD ROAD 
 
 I am driven to it. It is true I have argued against a narrow con- 
 struction which would confine the rate to such an extent as to 
 make it either nugatory or oppressive. But I am not, therefore, 
 obliged to adopt so sweeping a construction as would embrace the 
 whole colony. Equitably to arrange the two opposing principles, 
 is the thing to be done ; and this, I think, the bill has done. For 
 Mr. Sutherland's principle will either do nothing or do injustice. 
 It will do nothing, if each district gets for its own roads its share 
 of the general contribution. It will do injustice if certain districts 
 are compelled to pay for making the roads of other districts. 
 Why on earth should Colesberg or Cradock, where, by the 
 bounty of nature, the natural road is hard and good, be compelled 
 to pay for the roads of the Cape or Stellenbosch ? This I con- 
 ceive would be injustice ; for surely there is a great difference be- 
 tween saying that, as amongst individuals in a given district, the 
 assessment should be equal, and that, as amongst the different dis- 
 tricts, the same equality should be enforced. The frontier cannot 
 properly be called upon to make this Stellenbosch road any more 
 than this end of the colony could be properly called upon to make 
 a road upon the frontier. Sir, running over, with as much celerity 
 as I can, the various projects which have been started as substitutes 
 for the principle of this bill (for by such an exhaustive process 
 alone can the real merits of the bill be adequately weighed), I 
 come to another plan that, namely, which forms Mr. Sutherland's 
 second proposition an income tax. He says, " Let this road be 
 made by an income tax. The Governor has 5,000 per annum ; the 
 Attorney-General i, 200 and his practice ; and the Chief Justice 
 rejoices in a sublime 2,000. My spirit is disquieted by the fact 
 that these, and other parties, are to escape taxation, and I desire to 
 have a tax on income in order to reach them." Now I am hostile to 
 this project. Why ? Not because an income tax can never be a 
 just and proper tax, but an income tax can never be a just and 
 proper tax unless it involves in its enforcement a great deal of 
 what, but for its stern necessity, would be felt to be most arbi- 
 trary, tyrannical, inquisitorial, and oppressive. By no other machinery 
 can you prevent an income tax from crushing conscientious men
 
 OVER THE CAPE FLATS. 
 
 and allowing men without conscience to go free. For my own 
 part, I am determined that any income tax which I support shall be 
 so guarded as to be a tax in reality, and not like our last one, a mere 
 humbug. Is there then, in this case, an adequate necessity to justify 
 the imposition of such a tax as that suggested ? Are there bottom- 
 less deficiencies to be supplied ? Do the finances of the colony 
 require at all hazards to be recruited ? How much money do 
 we want ? Why, Sir, you want but 30,000. The mention of 
 this sum is itself an answer to the project of an income tax. Con- 
 nected inseparably as such a tax must be with fraud, with perjury, 
 with meanness, with exposure, and with many other evils, I 
 hold that it never can be politic or proper to impose such an im- 
 post for raising so small a sum as 30,000. But I maintain, more- 
 over, that every sort of income will not be equally benefited by 
 the road, that the income from fixed property is that which will 
 be by far the most improved, and therefore that it is the fixed 
 property of the district which should mainly contribute to form 
 that road by which its value is to be increased. I do not, at the 
 same time, deny that the inhabitants generally will derive some 
 benefit ; and although I see no working way in which the inhabi- 
 tants generally can be brought within the principle of assessment, I 
 may say, perhaps, for one, that hereafter I shall not have the least 
 objection to contribute to the fund the amount of the rate which 
 would be payable upon such fixed property as a person in my 
 circumstances might be expected .to possess. But all principle is 
 opposed to the imposition of an income tax for such an object as 
 that now in contemplation. Look at the Municipality, do they 
 derive their revenue from an income tax ? No such thing. They 
 never dreamt of it. Why then should the road to Stellenbosch 
 be made upon a different principle from the streets of Cape Town ?' 
 Dismissing then, this notion of an income tax, I come to 
 another source of revenue which has been pointed out. The 
 owners of immovable property, it is said, are owners but in 
 name, the mortgagees have eaten the heart out of the immovable 
 property of these districts, and left the useless carcase with the 
 mortgagors. Make the rich man pay and let the poor man go
 
 I5 2 ON THE HARD ROAD 
 
 free. This sounds plausibly. It has a certain illusive appearance 
 of equity about it, and our natural sympathies are always with the 
 needy rather than with those who seem to take advantage of their 
 need. But weigh the project in the scale of reason, and instantly 
 it kicks the beam. Sir, the mortgagee is in no sense the owner 
 of the mortgaged property. I do not now rely upon the technical 
 principle or refer to the fact that he has not in law the dominium. 
 But the mortgagee is a mere lender of money and can with no 
 more propriety be called upon to pay this rate than any other 
 lender of money whatever. No doubt he has the security of the 
 property pledged. But does the additional value which may be 
 conferred upon that pledged property, by making this road, go into 
 his pocket ? In the natural course of dealing, clearly not ; and if 
 the course of dealing have been such that the mortgaged property 
 will not realize the money lent, is not the mortgagor still, both 
 legally and equitably, bound for the deficiency ? And ought he not 
 to bear the weight of an assessment which will tend to make 
 that deficiency less than it would otherwise have been ? These, 
 I think, are plain principles, but there is one still plainer, 
 and it is this : Attempt to tax the mortgagee and he will turn 
 round upon the mortgagor, politely requesting him either to pay 
 up the rate, or else to pay up the mortgage money. This obvious 
 consideration appears to have convinced my friend Mr Brand 
 of the uselessness of attempting to force the mortgagees to pay 
 a rate. It is certainly quite enough to convince any one. But 
 desirous, when I can, to fasten upon a principle rather than 
 on a mere expediency, I again repeat that, in my opinion, to 
 force a mortgagee to pay such a rate as that in question would not 
 be just even if it were possible. The municipal commissioners 
 (I rejoice again to lay hold upon their venerable skirts), to their 
 credit be it spoken, say nothing relative to the mortgagees, nor do 
 they desire us to tax parties whom, be it remembered, they do not 
 tax themselves. But the municipality are of opinion that occupiers- 
 ought to pay. What sort of occupiers ? Let us but understand this 
 point, and we shall, perhaps, agree. Give me an occupier who has 
 a fixed interest enduring after the time at which the road will pro-
 
 OVER. THE CAPE FLATS. 
 
 bably be completed, and I will tax him in proportion to his term 
 then to come and uncxpired. If leases for 999 years were in use 
 here, as they are in Ireland, no man would be so absurd as to argue 
 that the tenant should go free and the rate should fall on the rever- 
 sioner who must live 999 years before he comes into possession 
 and participates in the improvement. If the more common 
 term cf 21 years were known in the colony, I should say that the 
 tenant should make good his fair proportion of the rate. But I pro 
 test, with both my hands, against a scheme which would make the 
 rent payable by mere monthly tenants, or by any parties whose 
 interest is determinable before the completion of the road. Will 
 any man stand up and say that it would be just to charge epheme- 
 rals of this description ? Why the landlord, after the opening of 
 the road, would repair to the tenant and say, " You hold by the 
 month ; you have done so for years, and paid the road rate ; 
 having done so, it strikes me that you have been here quite long 
 enough ; and you will therefore be good enough to accept a notice 
 to quit, unless you consent to pay me so much in the way of in- 
 creased rent." Now, if you will charge inhabitants simply as inhabi- 
 tants, I can understand you, although I deny the expediency of such 
 a course. But if you abandon that position, then I say that the man 
 who occupies no house at all, and sleeps in the streets (if any such 
 there be) possesses just as much of a rateable interest as a monthly 
 occupier, or the man who must be out cf possession before the road is 
 finished, On this question, however, I am willing to become all 
 things to all if, peradventure, I might gain some. I know of two or 
 three seven-year leases, and I am quite prepared, deducting three 
 years for the making of the road, to charge all such tenants for the 
 surplus, they paying the same proportion of ihe entire rate which 
 their interest bears to the perpetuity. The Council seems to con- 
 sider that this would be scarcely worth while ; and such is, certainly 
 my own opinion ; but if any member deem the charge a proper 
 one, I shall with pleasure make it. But I will never consent that 
 persons who have no fixed interest should be assessed for this road ; 
 it would be unjust ; and sooner than commit that injustice in obe- 
 dience to any clamour out of doors, I would see the whole bill torn
 
 154 ON THE HARD ROAD 
 
 into ten thousand fritters. But another suggestion has been made, 
 to which I yield at once. As the draft now stands, no fixed property 
 under 100 in value is to be assessed. I did not exempt such pro- 
 perty because I considered that it would be unjust, but because 
 it would be troublesome to collect the rate imposed. I have, 
 however, been informed that a number of small holdings are 
 frequently possessed by a single person from whom the rate could 
 readily be obtained, and, under all the circumstances, I shall, 
 with the concurrence of the Council, abolish a distinction which 
 was, from the first, a surrender of the proper principle to a sup- 
 posed expediency. The trustees will, in collection, exercise 
 a sound discretion, and never throw good money away in a vain 
 attempt to recover bad. Sir, I was about to say that I had now gone 
 through the whole list of objections preferred against this bill, and 
 of projects proposed to be substituted in its stead. But I must not 
 forget that an appalling consequence of a road rate upon fixed pro- 
 perty has been anticipated, to which I have not yet alluded, and, 
 feeling somewhat nervous upon the subject, I shall read from this 
 newspaper, rather than venture to give utterance, in my own words, 
 to the dark anticipation. Here, then, in a letter written by a 
 gentleman whom I have the pleasure of knowing very well, Mr. 
 William Ferdinand Bergh ; not volunteering his opinion, but being 
 called forth, and publicly, by the editor of the Zuid-dfrikaan, he 
 draws such a disastrous picture of the results of the intended bill, 
 that, had I seen the awful warning while drawing it, the pen must 
 have fallen from my petrified fingers. " You ask," he says, " what 
 will be the effect of selling fixed property subject to a road rate ? I 
 answer that it can be no other than" than what ? to ruin the 
 whole colony ? to cause an earthquake ? Human imagination, Sir, 
 sinks dismayed under the effort to realize the full extent of horror ; 
 " it can be no other," says Mr. William Ferdinand Bergh, " than 
 to cause the stryk-money men to carry their resolutions into effect, 
 of not bidding for the competition money !" (Laughter.) This, Sir, 
 will be indeed a heavy dispensation ; and I cannot but express surprise 
 that a matter of so much gravity and importance should only appear 
 to excite the risibility of this Council. For myself, the distressing
 
 OVER THE CAPE FLATS. 155 
 
 event came on me unexpectedly. In considering the question 1 
 had never once thought of the stryk-gelders, or considered that the 
 value of all immovable property rested upon their nod. Perhaps 
 my friend Mr. Bergh takes a view too gloomy. Perhaps even 
 without the aid of stryk-money men, fixed property may still 
 bring something ; but on this point I speak with diffidence, for, 
 early in my career in this colony, I confounded, in court, a 
 stryk-gelder with a bonus man, and I have never since studied 
 these mysterious subjects with due attention. But if the stryk- 
 money men will take their departure, never to bid for stryk-money 
 again, we can only reflect that they do not take the immovable 
 property of the colony along with them, and that this, at some far 
 future time, may be found to fetch its value, though stryk-geld 
 be then a thing of history, and bonuses known no more. Sir, 
 before sitting down, there are two other topics to which I am 
 anxious to advert. I have been observing, heretofore, upon avowed 
 objections. The matters to which I now allude are consi- 
 derations which are not avowed, but which, I have reason to 
 believe, are not without their influence. The first of them, Sir, 
 is the exaggerated estimate which has been made of the actual 
 burthen which this Ordinance will impose. I feel convinced 
 that not a little of the opposition which this bill has encountered, 
 has arisen from a notion that the assessment contemplated will be 
 of a most severe and crushing character. A clergyman yesterday 
 mentioned to me that in the course of conversation with one 
 of his people this road chanced to be mentioned, and the party 
 alluded to intimated his intention of signing the petition against 
 this bill. The reason he assigned was, that ^15 a year was more 
 than he could afford to pay. Startled at this amount, my infor- 
 mant enquired the value of the objector's fixed property. The 
 other replied _^i,ooo ! Now, if such notions relative to the amount 
 of the intended tax are in circulation, I cannot wonder that it 
 should excite alarm. But I have no desire to underrate the 
 pressure, and upon this subject it appears to me that it would not 
 be safe to calculate upon less than an assessment of one halfpenny 
 in the pound upon the value of immovable property, to last, if
 
 ON THE HARD ROAD 
 
 necessary, for seven years. To those who reflect that the 
 rateable property in the two districts cannot be estimated at 
 less than two millions and a half, and who consider that the road 
 is calculated to cost from 25,000 to 38,000, the rate which I 
 have now suggested will be deemed sufficient, even if contrary to 
 general expectation it should be out of the power of Government 
 to afford any assistance to this important work. Of course, if the 
 Council should deem it expedient, the maximum of the rate might 
 be lowered, and the number of years increased, so as to make the 
 annual weight still lighter. But it will be obvious that, in order 
 to do the work cheaply, the trustees must be annually supplied 
 with a certain amount of money. If the necessary supplies are 
 not raised within the year, the trustees mast borrow upon the 
 security of the future assessments : and borrowing implies a charge 
 for interest, which is itself an augmentation of expense. Were 
 it not for this consideration, coupled with the probability of an 
 additional charge for collection, arising from the fact that no one 
 will collect in the district of the Cape and Stellenbosch 2,500 
 for the same percentage which he would be willing to accept for 
 collecting 5,000, the number of years over which the rate might 
 be spiead could, perhaps, be increased without material inconve- 
 nience. But these are matters with respect to which I am com- 
 pletely in the hands of the Council, and ready to do whatever it 
 deems best. Beyond one halfpenny in the pound for seven years, 
 however, we have no necessity to go, and then the question is, will 
 that assessment prove grievous to the people ? I cannot believe it. 
 Behold the Municipality of Cape Town. It has levied last year 
 three farthings in the pound, or 3 2s. 6d. per 1,000, and yet the 
 houses stand ! And matters do not seem to be the worse for it. 
 So far, indeed, from matters being the worse for this assessment, I 
 have no doubt that the value of property in Cape Town is improved 
 by that judicious expenditure, which every one who walks the streets 
 must see, and see with pleasure ; and if fixed property have lately 
 fallen, I do not hesitate to assert that it has fallen, not in conse- 
 quence of municipal taxation, but in spite of it. If this be the clear 
 and indubitable fact, if a tax of three farthings in Cape Town has
 
 OVER THE CAPE FLATS. 157 
 
 .been borne without murmuring ; if the fact that a tax of an equal 
 amount, or even a greater, may possibly be imposed for ever (and al- 
 though the Municipal Ordinance will expire in 1 860, it may be re- 
 newed again, and if the Municipality continue as it has begun, my 
 exclamation with respect to it will be Esto perpe tua /) has not fright- 
 ened the owners of immovable property out of their wits, is it to be 
 said that at most a half-penny in the pound for at most seven years 
 to be devoted to a work which will change the whole face of the 
 surrounding neighourhood, is to ruin the town, ruin the coun- 
 try, ruin the farmer, ruin his oxen, and scatter far and 
 universal desolation ? Sir, the idea is the wildest the mind of man 
 can possibly conceive. I come now to the second of the non- 
 avowed objections (I am wrong in saying unavowed, for I heard 
 with shame, something of the sort in one or two of the petitions 
 which were read to-day), and it is this : " We have now, with 
 our vineyards, our gardens, and our farms, a monopoly of the 
 Cape Town market, and we are not such fools as to coax competi- 
 tion from a distance by laying down a road for it to travel on." 
 Sir, this is a selfish fear, and it is as idle as it is selfish. All 
 experience shows that the establishment of roads into the country, 
 instead of lowering the value of property around the town, has 
 invariably increased it. Listen upon this point to the language of 
 Adam Smith. The last clause is that on account of which I read 
 the passage, but the whole contains truth so weighty and important 
 that I make no apology for giving it entire : 
 
 " Good roads, canals, and navigable rivers, by diminishing the 
 expense of carriage, put the remote part of the country more 
 nearly upon a level with those in the neighbourhood of the town. 
 They are upon that account the greatest of all improvements. They 
 encourage the cultivation of the remote, which must always be the 
 most extensive, circle of the country. They are advantageous to 
 the town, by breaking down the monopoly of this country in its 
 neighbourhood. They are advantageous even to that part of the 
 country. Though they introduce some rival commodities into the 
 old market, they open many new markets to its produce. Mono- 
 poly, besides, is a great enemy to good management, which can
 
 158 ON THE HARD ROAD 
 
 never be universally established but in consequence of that free 
 and universal competition which forces everybody to have recourse 
 to it for the sake of self-defence. It is not more than fifty years 
 ago, that some of the counties in the neighbourhood of London 
 petitioned the Parliament against the extension of the turnpike 
 roads into the remoter counties. Those remoter counties, they 
 pretended, from the cheapness of labour, would be able to sell their 
 grass and corn cheaper in the London market than themselves, and 
 would thereby reduce their rents and ruin their cultivation. Their 
 rents, however, have risen, and their cultivation has been improved 
 since that time." 
 
 Sir, in what is here recorded of the landowners about London, 
 we may find some little show of comfort. It is true that what 
 took place fifty years before the publication of the " Wealth 
 of Nations " must have happened rather more than a century ago ; 
 but still it is a consolation that some people in the neighbourhood 
 of London were, about one hundred and twenty years ago, as 
 blind as some in the rural districts of this colony are at 
 the present day. I have now concluded my examination of the 
 principle of this bill ; of the objections advanced against this bill ; 
 and of the various projects which have been put forward in its 
 stead. Is then, I ask, this bill to be abandoned ? If it be thrown 
 out, is any member prepared to introduce another more likely to 
 succeed ? Believe me, the opposition to this measure is not a wise 
 or well considered opposition. The farmers object, but the 
 farmers should remember the heavy imposts from which they 
 have been freed, and not begrudge a moderate contribution to 
 what will tend so directly to their own good. The time has been 
 when the proprietor was bound, by law, to send his slaves to 
 make and mend the public roads, and it may be doubted 
 whether or not the emancipation has released the landowners from 
 what may be called the statute labour of the colony. But times are 
 changed, and I have no desire to force the farmer with his sons 
 and servants to work upon the public road, a description of 
 tax the most oppressive to the individual, and the least pro- 
 ductive to the public, of any that could possibly be devised ; for
 
 OVER THE CAPE FLATS. 159 
 
 the work which is done grudgingly is always done ill. Again, 
 the tax on stock and produce fell with the system of assessed 
 taxes, and thus was our agriculture again relieved. I do not say, 
 indeed, that this relief, which was a relief to all classes, would of 
 itself give any ground for imposing an assessment upon the agri- 
 culturist as such, but it is undeniable that the relief is one which 
 the agriculturist enjoys, and that it is much more than a compen- 
 sation for the trifling and temporary assistance (which is not a 
 tax at all) that he is now called upon to give to the formation 
 of a great public work. Have not our farmers eyes to see 
 that their whole dependence is, and must be, on Cape Town 
 and its market ? Can they not understand that Cape Town 
 and its market are and must be miserably crippled, so long as 
 a great, impassable, deep sea of sand is to be waded through by 
 the produce on which they depend ? Do they not feel that this 
 noble work is the very thing to keep the life in Cape Town ? 
 Everywhere the great object is to facilitate the means of transport. 
 All over Europe is this end earnestly pursued, in France, in 
 Belgium, in Holland. England about twelve years ago saw her 
 first railway, and she has now seventy millions of capital embarked 
 in those mighty undertakings. The annual revenue of her turn- 
 pike trusts presses close upon two millions. Let us make some 
 effort here. This bill is not founded upon the old paternal 
 principle of doing everything for the colonists, and leaving them 
 no room to do anything for themselves. It allows you to choose 
 your own trustees, and to manage, through them, the expenditure 
 of your own money. I rely upon this Council, then, while modi- 
 fying the details, to maintain the principle of this bill. Show the 
 public the way that they should go. Teach them the invaluable 
 lesson that, in regard to every public work like this, a liberal ex- 
 penditure is the truest economy ; for wisely hath the wise man 
 said, " There is that scattereth and yet increaseth, and there is a 
 withholding of that which is meet that tendeth to poverty." The 
 farmers say that they are poor. I fear, in too many cases, that they 
 are so. But will any man assert that it has been by paying rates 
 for road making that they have been impoverished ? Be well
 
 l6o ON THE HARD ROAD 
 
 assured, Sir, that no country was ever brought to destruction 
 in this way. What will be the consequence of negativing 
 this bill ? It will stop the march of improvement everywhere 
 throughout the colony, and, perhaps, its first effect will be to defeat 
 the attempt which the district of George is prepared to make, to 
 reform the Cradock Pass. But on the other hand, by carrying 
 this bill, you will give proof that you will not place yourselves in 
 the hands or at the head of the ignorance of the colony ; that 
 supported by the intelligence and the property of the Cape and 
 Stellenbosch, you will confer upon those districts the greatest 
 benefit which they are capable of receiving ; that when a 
 strenuous effort is being made to accelerate the progress of 
 colonial improvement, you will not be found amongst those who 
 would fasten themselves behind the advancing wagon and strive to 
 stop its course. 
 
 1843. 
 
 [Legislative Council, March 20, 1843.] 
 
 The ATTORNEY-GENERAL said, that having on a former occasion 
 stated that he should this day be prepared to announce definitively 
 the line of conduct which he proposed to pursue with regard to the 
 Hard Road Bill now before the Council, he should avail himself of 
 the opportunity for so doing, which was presented by the laying 
 of the evidence, taken by the committee, upon the table. With
 
 ACROSS THE CAPE FLATS. l6l 
 
 respect to that evidence, he deemed it but an act of justice to the 
 Committee to declare that it had been taken with the utmost fair- 
 ness and impartiality, and with as little reference as possible to 
 individual or preconceived opinion. Through the instrumentality 
 of the Cape Town Mail the whole of that evidence was now before 
 the public ; and with the exception of the evidently unintentional, 
 though certainly very material, error, to which his hon. friend op- 
 posite had called to-day the attention of the Council, there could 
 be as little doubt of the perfect correctness with which the evidence 
 had been communicated, as of the value of that evidence to all parties 
 anxious to discover what was truth in regard to this important ques- 
 tion. Growing out of the examinations which had been had, as well 
 as the general considerations applicable to the case, there seemed to 
 exist amongst all the members of the Council an absolute conviction 
 that something should be done. But, unfortunately, a strong feeling 
 of opposition had been manifested, out of doors, respecting some of 
 the provisions of the present bill ; and to the principles on which 
 that opposition based itself, the Council was bound, and was 
 anxious, to pay all possible attention. Many of the Council did 
 not agree with all the objections that had been raised, and some 
 were sorry to see such objections started against such a measure ; 
 but every member felt it to be his duty to weigh those objections 
 with candour, indulgence, and an anxious desire, not merely to 
 consult the principles, but even to conciliate the prejudices, which 
 were arrayed against the project. And even within the Council 
 itself, in the midst of a most cordial and most gratifying manifesta- 
 tion of good feeling, and the utmost possible anxiety, by sinking 
 minor differences of opinion, to carry a safe and salutary measure 
 through, there yet appeared to be at least two expressions of a some- 
 what discordant sentiment, which, coming from the quarters that 
 they did, challenged particular attention. One member of the 
 Council conceived that important as it was to open a road to the 
 extensive districts which lie beyond Sir Lowry's Pass, equally if not 
 more important, as it might be, by opening another road to the 
 great existing grain districts, to give our farmers there facilities for 
 conveying their produce to the port, yet that both these objects,
 
 ON THE HARD ROAD 
 
 confessedly of the highest interest and value, shrank into compara- 
 tive insignificance when compared with the advantages which 
 would certainly be secured by opening Mostert's Hoek. This 
 was the view of his hon. friend at the other end of the table (Mr. 
 Breda), and coming from a man of his weight and standing in the 
 coloay, and one whose entire disinterestedness was proved by the 
 fact that he had not a foot of land in Worcester, it was impossi- 
 ble not to receive it with the most respectful attention. The other 
 opinion to which he (the Attorney-General) had adverted, was one 
 which had equal claims to consideration, and was advanced by 
 his hon. friend opposite (Mr. Ross). His hon. friend, not swerv- 
 ing in the least from his old anxiety to see a hard road made 
 across the Flats, seemed yet to consider that the difficulties 
 with which the present bill was surrounded were likely to prove 
 insuperable, and that the only mode in which that great public 
 work could be accomplished would be by performing it exclusively 
 at the expense of the public revenue. Being firmly convinced that 
 it would be useless to carry this bill by a mere majority, and that 
 nothing short of absolute unanimity amongst the members of 
 Council would, in the face of the numerous and respectable opposi- 
 tion which had exhibited itself, obtain for such a measure the 
 sanction and allowance of Her Majesty the Queen, it had occurred 
 to him (the Attorney-General) that a meeting of the members, to be 
 held privately and in the friendly way, would be the best means 
 of ascertaining how far the objections to the present bill were 
 capable of being obviated, and whether, by the liberal exercise ot 
 mutual concession, and an unaffected desire to give up everything, 
 except matter of principle, for the purposes of securing unanimity, 
 some plan settling precisely the works to be done, and the nature 
 of the funds to be provided for performing them, might not be 
 devised in which all might honestly and cordially unite. On 
 Saturday accordingly, most of the members of Council, and 
 amongst the rest his two hon. friends, whose views he had referred 
 to, did him the honour to come to his office ; and there they had 
 talked the matter over carefully and anxiously, and with the 
 strongest desire to arrive at a common understanding. He was
 
 ACROSS THE CAPE FLATS. 163 
 
 happy to say that they had succeeded ; and he should now state 
 shortly the result of their deliberations. First and foremost, then, 
 he should withdraw the present bill. Having, he trusted, no over- 
 weening opinion of his own infallibility, nor any disposition to 
 cling obstinately to his own ideas, he had not the slightest difficulty 
 in resorting to this course, and, as he had said, the present bill 
 would be withdrawn in order to make room for another which he 
 fondly hoped would receive the support of that Council and the 
 colony. In proceeding to state the nature and objects of the new 
 bill which it was his intention hereafter to introduce, he must re- 
 quest the Council to keep in mind that there were, of necessity* 
 involved in any measure of the kind two great principles, perfectly 
 distinct but equally important ; one, the fixing of the road or roads 
 to be laid down ; the other, the fixing of the funds out of which the 
 expense should be defrayed. Now, with regard to the first of these 
 poirits, the lines of road, he (the Attorney-General) would at once 
 declare that, could it be accomplished, he would desire to open a road 
 for the Overberg farmers directly to Brink's Drift, or in other words 
 to make line No. I, to open another road by Stickland, running 
 thence into the grain districts ; to open Mostert's Hoek, and connect 
 the fine country beyond with the road just described ; and then 
 having found out, by the aid of a completer survey than had yet 
 been taken, the best line of road to suit the Koeberg farmers, to 
 complete the plan by putting that line into good order, believing 
 that the mind of man could scarcely conceive the amount of 
 ultimate advantage which would be reaped from the completion of 
 these works, and that no other system of roads for this end of the 
 colony could be devised which would be attended with so many 
 benefits. Indeed, so much was he impressed with the advantages 
 likely to be derived from the first of the lines of road which he had 
 intimated, namely, line No. I, that, if that line could be made at 
 an expense averaging not above one-half per mile more than the 
 proposed line, or, in other words, if the proposed line could be 
 made for 1,000 per mile, he should not begrudge for line No. i, 
 1,500 per mile, so highly was he inclined to estimate the benefit 
 of giving to the Overberg people a direct road, and superior 
 
 M 2
 
 164 ON THE HARD ROAD 
 
 feeding for their cattle. But he felt that he was not in a situation 
 to effect this object. The man who, more than any other man 
 in the colony, was qualified to form an opinion upon this subject, 
 and who had acquired the materials on which to found a 
 judgment by a degree of exertion upon his part which laid 
 the public under obligation to him (Col. Mitchell) had come to the 
 conclusion that he could only recommend the formation of a road 
 upon line No. I, in case the Council were prepared to disregard all 
 considerations of expense a position which he (the Attorney- 
 General) would shrink from taking up, and which he should not, 
 for an instant, dream of advising the Council to adopt. But, as he 
 had already said, if material sufficiently good for road making 
 could be found along line No. I, or if better materials could be 
 found at either end and thence transported towards the centre by 
 means of anything like a moderate outlay, so much did he prize the 
 principle of securing the straight short road and superior out- 
 spanning for the farmers Overberg, that he would have been 
 prepared to submit to the Council the propriety of attempting that 
 work. And had he been in a state to effect this object, he would, 
 in the new bill, have deemed it right and fitting to embrace 
 Caledon in the modified scheme of assessment, the nature of which 
 he would presently explain. But in the face of the evidence then 
 upon the table, it would be very unjust to call on Caledon for any 
 contribution to the proposed line, for, though he agreed in a great 
 measure with his hon. freind opposite (Mr. H. Cloete) and con- 
 ceived that, however much a supposed shortness and superior 
 feeding for oxen might, at first, confine the Overberg farmers to 
 their present road, yet that after all and in the long run, they would 
 find facilities on the proposed line which would much more than 
 counter-balance the advantages of that now in use, and would 
 speedily discover that they consulted their interest by shunning the 
 hummocks and the heavy soil which it was now necessary to en- 
 counter, and by taking an inconsiderable circuit in order to enjoy 
 the benefit of a solid road. Still, however, there were, he believed, 
 only two other witnesses who concurred with his hon, friend in 
 thinking that the Overberg farmers would make use of the proposed
 
 ACROSS THE CAPE 1-LATS. 165 
 
 iine. The opinions of those witnesses, Dr. O'Flinn and Mr. 
 Faure, were supposed to be influenced by the fact that they were 
 both Stellenbosch men (though why their perfect impartiality 
 should, on that account, be suspected, he did not know, for the 
 difference between the two lines was not of much importance to the 
 town of Stellenbosch), but while exonerating them fully from the 
 slightest bias, it was impossible not to admit that the weight 
 of evidence went to show that the Overberg farmers would 
 not make use of the proposed line, and he should, therefore, 
 decline to tax people who must now be taken not to benefit 
 by the road, and who did not reside in the districts through 
 which the road ran, for the purpose of accomplishing a work with 
 which it was so strongly urged that they could have no concern. 
 If, then, we were to give up line No. I, we must also with it give 
 up Caledon. The proposed line would then become the only 
 practicable one and he therefore contemplated its completion. This 
 line would open a road, if not for the Overberg districts, at least 
 for other districts scarcely less important. And, in the new bill, 
 he should not confine the work to this one object, but would, at 
 once, include the complete opening of Mostert's Hoek. Declining 
 to pause at present to point out the vast and universally admitted 
 benefits which must flow from the achievement of this great work, 
 he would merely remark that with the exception of a little sand 
 beyond Stickland, which could easily be conquered, the whole 
 road which would lead from Mostert's Hoek, through Rooi 
 Sand Hoek, past the Paarl, down to the proposed line, would 
 be an admirable one, "almost like the Heerengracht," as Col. 
 Mitchell had that morning said in the course of conversation. 
 To accomplish the opening of Mostert's Hoek would entail, under 
 the most economical management, considerable additional expense ; 
 and as no district in the colony was so much interested in 
 having that barrier broken down as Worcester was, he should 
 propose to embrace Worcester in the small assessment which 
 alone, for reasons to be given presently, the new bill would 
 contemplate. They would, thus, have done much in the way 
 of improving their internal communications. But feeling the
 
 I 66 ON THE HARD ROAD 
 
 reasonableness of the objections made by the farmers of Koeberg 
 and all Zwartland to their being called on to contribute to 
 make roads for other people, they themselves receiving no equiva- 
 lent, he should make the formation of a road, for the inhabitants 
 of those valuable districts, to be laid down along the most con- 
 venient line that after accurate survey made could be selected, 
 another object of the new bill. What he proposed to the 
 Council to do would then stand thus : to make a road along the 
 proposed line, in case line No. I should, as he feared it 
 would, prove to be impracticable : to make a road along line No. 
 I if it could reasonably be done, and in that case avoid the 
 necessity and save the expense of turning the present proposed 
 line across the Kuils River ; to complete, in any event, a 
 line of road which would run from the Salt River through 
 Mostsrt's Hoek ; and to make a good Koeberg road in order to 
 facilitate the approach of the farmers in that direction to the Cape 
 Town market ; the whole to constitute one trust, to be managed 
 by one set of trustees ; and to be paid for, in part, by the immov- 
 able property in the divisions of the Cape, Stellenbosch, and 
 Worcester. 
 
 Mr. Ross : Say by the occupiers 
 
 The ATTORNEY-GENERAL said, his hon. friend could perceive 
 that in speaking of the assessment of immovable property he had 
 not indicated the parties by whom that assessment should be paid. 
 But he took advantage of the remark of his hon. friend for the 
 purpose of stating, that although, considering the tenures of this 
 colony, he had been led to think and to argue in that Council that 
 the owners of immovable property should be exclusively assessed ; 
 yet as objections to this principle had been urged by the Munici- 
 pality of Cape Town and by other persons whose opinions he re- 
 pected, and whose opinions upon such a point he would, at all 
 events, willingly defer to, he would, in the new bill, omit the ob- 
 noxious provision, and insert in its place the language used in the 
 Municipal Ordinance of Cape Town. 
 
 Mr. BREDA : Hear, hear. 
 
 The ATTORNEY-GENERAL was happy to be able to make this one
 
 ACROSS THE CAPE FLATS. l6/ 
 
 of the instances which evinced a willingness to surrender an 
 individual opinion in order to ensure, if possible, that general 
 approval and support which it was a pity should be withheld 
 from undertakings of so much interest and importance. In enter- 
 ing into a statement of the mode in which the assessment so to be 
 imposed would (as he hoped) be made a very light one, he would 
 pause to point out to the Council the importance of the changes 
 proposed to be made by the new bill, and the favourable effect 
 upon its ultimate success which those changes seemed to promise. 
 By including Mostert's Hoek he had carried with him his hon. 
 friend at the other end of the table (Mr. Breda), and that very large 
 number of well informed persons who considered the opening of 
 that pass the most useful work that ever j 10,000 was devoted to 
 accomplish. He believed that in England the most experienced 
 agriculturists calculated that one-seventh was not too much to allow 
 for seed. In Zwartland, and its neighbourhood, he understood 
 that a return of tenfold might be considered the average produc- 
 tion. But, if he were not misinformed, the rich alluvial soil 
 of the Warm Bokkeveld, and even, perhaps, of the Cold Bokkeveld 
 and the adjacent lands as well, would justify the use of the Scrip- 
 ture language expressive of extreme fertility, and might be literally 
 said, in regard to the seed committed to its bosom, to produce " some 
 thirty, some sixty, and some one hundredfold." Considered in 
 this point of view, how valuable must be the work which will lay 
 open the natural riches that now lie concealed in a country of 
 this description ? Here, certainly, there was strong ground to go 
 upon ; and he (the Attorney-General) was glad to follow, into it, 
 his hon. friend (Mr. Breda) ; and he had no doubt that the 
 whole of this end of the colony would be found to follow him 
 with equal willingness. But connected with the outlay which 
 would be demanded, there arose a very important consideration 
 suggested by his hon. friend opposite (Mr. Ross), and one which he 
 hoped to treat in such a manner as to secure the support of tha 
 hon. member and the general concurrence of the Council. There 
 could, he believed, be little doubt that the principal objections 
 to the present bill, whether they took the shape of a preference
 
 I 68 ON THE HARD ROAD 
 
 to soft roads over hard roads ; or of the greater justice of an 
 income tax than a property assessment ; or of the hardship of 
 taxing owners exclusively and allowing occupiers to go free, were 
 at bottom founded upon an idea, perhaps an exaggerated idea, 
 but certainly not an unnatural one, that many of our colonists, 
 and particularly of our farmers, would be distressed by being called 
 upon to contribute the whole expense of completing the projected 
 undertakings. With the wine farmers especially, this was supposed 
 to be the case, and his hon. friend (Mr. Ross) viewing the 
 works in question as works of general utility (which they 
 unquestionably were), seemed disposed to recommend that they 
 should be undertaken by the colonial government and paid 
 for out of the colonial revenue. He (the Attorney-General) 
 could not go to the whole extent of this position, but it was only 
 fair to say that it had a show of reason in its favour. His hon. friend 
 had plausible grounds for his opinion. When his hon. friend himself 
 had been chiefly instrumental in the abolition of the assessed taxes, 
 and the substitution of additional customs duties in their stead, it was 
 calculated that the customs, even under the able management of his 
 hon. friend (Mr. Field), would turn out well if they realized 
 40,000 a-year. But instead of realizing only 4.0,000, he believed 
 he had the authority of his hon. friend for saying that he contem- 
 plated 60,000 as the probable amount which the customs would 
 annually contribute to the general revenue. When, therefore, a 
 receipt of but 40,000 from the source in question was supposed to 
 be sufficient to enable this Council to meet the public exigencies, a 
 receipt of 60,000 instead, would seem to argue a presumptive 
 surplus, and were it not that the Serbonian Bog, the paper debt 
 stood ready to engulph every superfluous penny in the treasury, 
 there could be no doubt that we should soon have some money to 
 bestow on the encouragement of public works. It was, however, 
 quite clear, that until the question of the paper debt were, in some 
 way or other, settled, our limbs were fettered, and we could not be 
 allowed to go forward in the career of colonial improvement. It 
 would be utterly in vain for them to ask Her Majesty's Govern- 
 ment to reconsider a judgment already solemnly and repeatedly
 
 ACROSS THE CAPE FLATS. 169 
 
 pronounced, or to expect that they could ever disengage a surplus 
 for the promotion of such objects as those in view whilst the 
 paper money debt or any considerable portion of it remained to 
 be provided for, and the British treasury was burthened with the irk- 
 some guarantee. He believed that when his hon. friend, the Act- 
 ting Secretary to Government, who had already been able to do a 
 great deal in that way, should have accomplished the destruction 
 of another 20,000 worth of that paper, which he was getting 
 ready for the flames, the whole balance still remaining would be 
 124,000, or thereabouts. 
 
 ACTING SECRETARY TO GOVERNMENT : 121,000. 
 
 The ATTORNEY-GENERAL continued by observing that when their 
 debt was thus reduced to 121,000, there was reasonable ground 
 to hope that they might safely grapple with it. The plan of put- 
 ting forth a new issue of Government notes, convertible into gold at 
 the will of the holder, and to be paid on demand by his hon. friend 
 beside him (the Treasurer-General), in his commodious office in 
 the yard below, had been approved of by Her Majesty's Government* 
 and he believed that His Excellency only awaited now the mecha- 
 nical means of putting it into execution, namely, the arrival from 
 England of the necessary notes. He was aware that there was a 
 difference of opinion as to the precise amount of such a circulating 
 medium which the colony would spontaneously absorb. Some would 
 rate it nearly as high as the whole debt to be provided for, others 
 might calculate that but few even of such notes would remain 
 abroad, while he (the Attorney-General) believed that the truth 
 would lie between. But however this might be, it seemed very 
 clear that when it was remembered that whatever amount of the 
 new notes would remain outstanding was so much of the old 
 paper debt cancelled (less, of course, the amount of specie which 
 might be required to keep the new notes convertible), and that to 
 meet the annual interest of whatever sum it might be necessary to 
 borrow in order to pay off the balance (should that course be ulti- 
 mately taken), we had the increased income from the customs 
 already spoken of, there was nothing in our financial condition 
 calculated to appal the Council, or induce them to doubt that, with
 
 ON THE HARD ROAD 
 
 energy in collecting their ordinary revenue and rigid economy in 
 its expenditure, they might safely undertake to provide for the 
 complete redemption of the paper debt, and, at the same time, find 
 means to forward the execution of some pressing public works. If 
 these anticipations were well founded, the next question would be, 
 were the works to which he had already adverted, and which 
 would be the subject matter of the new bill, works of such a 
 nature as to justify the application of a portion of the public funds 
 in order to assist in their formation ? He apprehended that here no 
 difference of opinion could exist. When it was considered how much 
 the general interests of the colony were involved in the improve- 
 ment of its internal communication, and how much the public 
 prosperity would be promoted by a good hard road from Cape 
 Town to Sir Lowry's Pass, by making Mostert's Hoek an easy 
 thoroughfare, and by assisting the Koeberg farmers to brine; their 
 produce to the market, the natural and expedient course obviously 
 was to combine the principle of local assessment with the princi- 
 ple of Government contribution, and, by the common operation of 
 both, to carry into effect the ends in view. Influenced by these 
 considerations he (the Attorney-General) would further propose 
 that when the intended bill should have passed the Council, His 
 Excellency the Governor should be requested to apprise the Secre- 
 tary of State that the Council confidently anticipated that the paper 
 debt, being amply provided for, the revenue would still show a sur- 
 plus, that such a surplus could not, they believed, be devoted to 
 any better object than to assist the accomplishment of the works 
 contemplated in the Ordinance transmitted for Her Majesty's 
 approval or disallowance, that they therefore looked to his lord- 
 ship to obtain Her Majesty's authority enabling this Council, 
 when passing the annual estimates, to vote, out of whatever surplus 
 might appear to exist, such a sum towards the fund for forming 
 the works in question (not exceeding, in any case, the annual 
 amount to be raised by the three divisions by means of the general 
 assessment), as the Council should deem fit, and that if, for rea- 
 sons which he (the Attorney-General) could not readily imagine, 
 and which he ventured to say Lord Stanley would, under all
 
 ACROSS THE CAPE FLATS. 1 71 
 
 the circumstances, be very slow to interpose, his lordship should 
 feel that he could not advise the Queen to give to this Council the 
 authority requested ; then, that His Excellency should further be 
 desired to state that, as the bill had passed the Council upon the 
 distinct understanding that the latter should be invested with such 
 an authority, and as that distinct understanding had been the means 
 of inducing many parties who could but indifferently afford it, to 
 consent, with cheerfulness, to an assessment on their property, his 
 lordship would be pleased, at once, to disallow the Ordinance in 
 .to/0, the condition on which it had been carried having altogether 
 failed. But he (the Attorney-General) felt little apprehension on 
 the subject. When His Excellency sent home General Bell's 
 memorandum recommending an issue of the old paper money for the 
 purposes of public works, the reply of Her Majesty's Government, 
 although unfavourable to the project of his able and excellent friend, 
 discovered no indifference towards the objects which he advocated* 
 but merely told us to remember that we should be just before 
 being generous, and that we must get rid of our incumbrances 
 before we proceeded to lay out our money to improving our estate 
 And if the authority adverted to should be conceded, and the 
 public revenue be applied to defray, say one-half of the expense of 
 constructing the works in question, could he (the Attorney- General) 
 be mistaken in believing that every colonist would rejoice to see 
 such an amount of good so cheaply purchased ? that every man } 
 and every woman, and every child in the three divisions would dis- 
 cern the signs of the times and see the importance of the ends 
 in view, and that instead of having 1,200 petitioners against the 
 new bill, they would have 2,000 petitioners in its favour. Another 
 matter had been agitated in committee which His Excellency and 
 the Council would not fail to bear in mind: His hon. friend, the 
 Acting Secretary to Government, had there declared that, in his 
 opinion, the proceeds of the lower toll should be applied to the 
 purposes of the intended road. This arrangement would be 
 obvjously just. The lower toll was to be justified only by the 
 necessity of preventing the upper toll from being evaded. If 
 wagons and other vehicles might enter at the lower gate, toll free,
 
 I7 2 ON THE HARD ROAD 
 
 very few such articles would be found to pay at the upper toll, and 
 hence, a charge at both places was necessary to give to the Simon's 
 Town toll an adequate protection. But there is nothing of even- 
 handed justice in forcing the Koeberg farmer, who comes over 
 what is now a very bad road, and the Overberg or Stellenbosch 
 farmer, who struggles to Cape Town through downs where there 
 is no road at all, to pay towards the Simon's Town road the same 
 toll which is paid by the man who comes from Simon's Town, It 
 was proposed, then, to make the terminus of the contemplated 
 roads, not the Salt River House as fixed by the present bill, but 
 the lower toll-gate, and to arrange that the tolls received at 
 that gate should be devoted to their natural object, namely, the 
 formation and continued maintenance of the roads proceeding from 
 that point. Even now this toll might be calculated at .500 a 
 year ; as the traffic increased it would increase also, and as there 
 was little doubt that the Secretary of State would approve of such 
 an appropriation of those tolls as had been now suggested, another 
 relief to the rate-payers would thereby be provided, while, at the 
 same time, by continuing to levy the same charges as at present, 
 the upper toll would be protected as efficiently as ever. He had 
 now stated, he hoped distinctly, the plan of the measure which he 
 intended to introduce. Withdrawing the present bill, he would, 
 with all convenient speed, bring in another, so different in its 
 scope, and characterised by so many concessions to public and 
 even individual opinion, that he confessed he did anticipate for it 
 complete success. Certain he was that if the measure of which 
 he had then given an outline were received out of doors with the 
 same degree of fairness, candour and single-mindedness, which it 
 was confident it would experience within, the Ordinance would go 
 home under circumstances eminently calculated to recommend it 
 to the favourable consideration of Her Majesty's Government ; 
 and thus a set of works be, at length, accomplished, which would 
 stimulate more industry, disengage more capital, and create more 
 wealth )h?n could readily be expected to arise from what would 
 be, after all, but a very limited expenditure, and which the same 
 expenditure could not produce in this, or, perhaps, in any other 
 quarter of the colony.
 
 ACROSS THE CAPE FLATS. 
 
 ON THE SAME SUBJECT. 
 
 [Legislative Council, March 20, 1843.] 
 
 ATTORNEY-GENERAL : But for the views which have just been 
 thrown out by my hon. and learned friend, I should be able to 
 prepare and introduce, almost immediately, such a bill as I have 
 already endeavoured to describe. It is due, however, alike to the 
 importance of the question, and to the opinions of my hon. and 
 learned friend, that the suggestions which he has offered should be 
 attentively considered ; and, as the ideas which he has advanced 
 or at least some of them - may require to be tested by experi- 
 ment, a little delay will probably be inevitable. First, with regard 
 to the line No. i . My hon. and learned friend, like myself, does 
 not willingly abandon the notion of this line ; and it strikes me 
 that there is a mode by which its practicability may be conclusively 
 ascertained. A certain sum, I believe one hundred pounds or 
 thereabouts, was subscribed some time ago to defray the expense 
 of a plan of the Flats. That plan, thanks to Col. Mitchell, 
 is not now required. Might not, then, the sum referred to, 
 augmented, if necessary, by some new subscriptions, be ap- 
 plied to the making, out of the materials to be found along 
 line No. i, a piece of road of such a length as would enable every 
 one to judge whether a road sufficiently serviceable could or could 
 not be constructed ? If this view should be considered reasonable, 
 and the necessary experiments set a-going, we should speedily be 
 placed in a position to determine, by actual trial, a point upon 
 which authority, however eminent, does not, it would seem, carry un- 
 limited conviction. The preparation of the new bill must, of course 
 await the result of the requisite experiments should it be found 
 advisable, under all the circumstances, that such experiments should 
 be made. My own beau ideal, as I have already said, is the three 
 roads, the direct line to Brink's Drift ; - the direct line to the
 
 174 ON THE HARD ROAD 
 
 grain country, and on through Mostert's Hoek ; and the direct 
 line to Visser's Hoek. The first of these, the line No. I, I 
 should, I repeat, as far as my own ideas are concerned, purchase 
 at an outlay of one-half more per mile than either of the other 
 lines would cost. My hon. friend opposite (Mr. H. Cloete), 
 differs from me here. He thinks that I overrate the advantages 
 of this particular line. This may be the case ; and I am, there- 
 fore, glad to observe that my hon. and learned friend, his rela- 
 tive, has not anchored himself to any one particular plan, but is dis- 
 posed, while stating his own views, co concur in whatever the general 
 opinion of the Council may determine. With those three lines com- 
 pleted, if to complete them would be practicable, we might safely 
 stop. Eiland's Kloof may be considered afterwards. No doubt the 
 opening of that pass would avoid the necessity of going from 
 Mostert's Hoek round by Rooi Sand Hoek, and so save two or 
 three hours ; but this, just now, is comparatively unimportant, and 
 is a thing which may be done hereafter. The only other portion of 
 the speech of my hon and learned friend which I feel called upon 
 to notice, is one from which 1 am reluctantly compelled to dissent. 
 I allude to his project in regard to the raising of the funds. I 
 fear it would never work. Even were all other difficulties out of 
 the way, it too much resembles the plan already laid before the 
 home government, and deliberately rejected, to stand the chance 
 of being received by Lord Stanley with much favour. It is right, 
 however, to say that my hon. and learned friend's plan is not Col. 
 Bell's plan, although it resembles it. Col. Bell wished Her Majesty's 
 Government to permit the issue of a certain amount of paper money, 
 and to rely for ultimate liquidation upon the increased revenue 
 which would be sure to spring out of the developed resources of 
 the colony when assisted by the formation of important public 
 works. My hon. and learned friend wishes Her Majesty's Govern- 
 ment to issue a certain amount of the paper money, but proposes, 
 instead of trusting to the security of the general revenue, to 
 hypothecate the whole of the immovable property in the 
 three divisions, which must all be excussed before the home 
 government can lose their debt. The general resemblance, how-
 
 ACROSS THE CAPE FLATS. 175 
 
 ever, between the plans still remains so marked as to ensure, in my 
 opinion, the rejection of that which has been now suggested. 
 And, after all, even if conceded, I do not see how my hon. and 
 learned friend could save more than the interest of the money. 
 He seemed to calculate upon paying off ^5,000 a year from the 
 proceeds of the tolls. But he forgets to take into account the 
 cost of keeping up his roads. I have had some doubt as to 
 whether the tolls would prove sufficient for this purpose alone. 
 When I formerly spoke of 36 per mile per annum as the average 
 cost of keeping up the turnpike roads of England, I have reason to 
 think that I was under the mark, and that .50 would have been a 
 closer approximation to the truth. Climate and other circum- 
 stances distinguish the cases of this colony and England ; but it 
 will, I am confident, require careful management to make the 
 proceeds of your tolls cover the charge of maintaining your roads. 
 Again, it is to be recollected that unforeseen contingencies, 
 Kafir wars or Natal Establishments, if they should occur, 
 might furnish a temptation to the Colonial Government for the 
 time being to make use of the instalments paid in by the road 
 trustees, and so, as far as the tolls are concerned, deprive Her 
 Majesty's Government of that security, and cast the whole burthen 
 of the debt upon the very inhabitants whom my hon. and learned 
 friend thinks he could relieve, almost entirely, from contribution. 
 With reference to the other plan, namely, that of the intended 
 Ordinance, it is certainly true that, if it cannot be called into 
 operation until _ 1 21,000 of paper money shall have been destroyed 
 simply by the application of surplus revenue, it is removed to a con- 
 siderable distance. But it is not proposed that the encouragement 
 of public works should await the tedious process just referred to. 
 In all probability there are now upon the sea the blank forms 
 required for the new issue of Government notes already mentioned, 
 which your Excellency is empowered to put into circulation. I 
 cannot but perceive that this announcement is far from giving un- 
 qualified pleasure to my hon. friend near me (Mr. Ebden). But the 
 fact is so ; and our business is to make the best of it. How much, 
 then, of your . 1 2 1 ,000, old paper money, will your new paper money
 
 INSOLVENT LAW. 
 
 destroy ? I am unwilling to offer any opinion upon a point which 
 will so soon be submitted to trial. Perhaps my hon. friend (Mr. 
 Ebden) would regard 20,000 as the utmost extent to which we 
 can go ; while my hon. friend opposite (Mr. Ross) more juvenile 
 and sanguine, might allow his ideas to range as high as 100,000 
 It is clear that whatever portion of the debt you do not settle by 
 means of your new paper money, you may fund. Funding2o,ooo 
 at 5 per cent, would cost 1,000 a year, and no more. Funding 
 50,000, at the same rate, would be only 2,500, and would 
 surely leave us some available surplus. But even say you fund 
 100,000 ; the annual charge for that will be but 5,000 after 
 all ; and, the revenue remaining in its present state, you might, I 
 think, encounter that payment of 5,000, and provide annually 
 another 5,000 to carry on the projected undertakings. This view 
 appears to me to be the simplest and most practicable, and by ad- 
 hering to it we shall avoid the unpleasantness of serving up to Her 
 Majesty's Government a dish which they have tasted before and 
 declared they do not relish. 
 
 THE INSOLVENT LAW. 
 
 Mr. Ross said : I beg to ask the Attorney-General if there is 
 any prospect of a bill being brought in, as we were at one time led 
 to expect, for the purpose of amending the insolvent law. lean 
 assure him thit acts of great injustice are continually occurring, and 
 that the mercantile body are subjected to perpetual inconvenience, 
 from the imperfect nature of the insolvent law of this colony. I 
 could bring forward numerous instances of the injury resulting 
 from the present state of things in this respect ; but to show the 
 importance of some measure of relief being afforded it is only 
 necessary to point to the fact of the unwillingness of capitalists to 
 lend money to the farmers under any circumstances. In conse 
 quence of the uncertainty produced by the present state of the law, 
 they would rather lend their money to the banks at four or five per 
 cent., than to agriculturists at six.
 
 ON THE INSOLVENT LAW. 1 77 
 
 ATTORNEY-GENERAL : In reply to the question put by my hon. 
 friend, I can with safety assure him that the subject to which he 
 has adverted has never been altogether absent from my recollec- 
 tion, since the report of the committee upon the insolvent law 
 was laid on the table. He will be aware that the report entered 
 so fully into the subject of the suggested alterations, that to frame 
 such an Ordinance as should embody those alterations, would be 
 little more than a very simple and easy piece of pen and ink work. 
 The most important change suggested was in that part of Ordinance 
 No. 64, which defines what shall be considered, and avoided as, 
 undue preferences. With the law, as it now stands, many persons 
 are dissatisfied. But whether it be possible to legislate on such 
 a delicate subject in such a way as to avoid dissatisfaction, may 
 well, I think, be doubted. I have been and still am of opinion^ 
 that the law, at present, is too stringent ; and that while it purports 
 to produce equality amongst creditors, it sacrifices to that object 
 the just security of dealing. The judges have, I know, given great 
 attention to this and other points ; and one of them, Mr. Justice 
 Menzies, has sent in a very able paper founded upon the report of 
 the committee ; but he leaves off" just at the vexatious and agitated 
 question relative to undue preferences, and has not yet had leisure 
 to complete his task. The Chief Justice was anxious that the whole 
 of the judges should be able to communicate their views upon the 
 subject before the Council legislated ; and having, in a conversa- 
 sion which I had with him before he started on circuit, consulted 
 me about postponing his observations until after his return, I ven- 
 tured to tell him that, hurried as he necessarily was, he might do so 
 without inconvenience to the Council. In connection with the 
 general question, I may remark, that in a volume of Ordinances 
 passed by the Legislative Council of New South Wales, I find our 
 Ordinance No. 64 introduced into that colony (I suppose under 
 the advice of Mr. Justice Burton) ; and amongst some changes, 
 chiefly verbal, made in it, one far from merely verbal change. 
 This occurs in the section which corresponds to our section 7, and 
 so fa from thinking, as I do, that that section as it stood went too 
 far, the Legislature of New South Wales appear to have thought
 
 IjS ON MUNICIPAL ASSESSMENT OF GOVERNMENT BUILDINGS. 
 
 that it did not go far enough ; since, instead of declaring void 
 only such alienations as should be made by a debtor who knows 
 himself to be insolvent, they make his self knowledge altogether 
 unnecessary, and avoid the transaction, if at the time the debtor 
 actually be insolvent, whether he knows it or does not. This, cer- 
 tainly, is not mincing matters. I was sorry to read, in the Sydney 
 papers, the long list of recent bankruptcies. It argued a degree of 
 monetary pressure which I unaffectedly deplore. But, what 
 is bad for the merchants may be good for the lawyers ; and 
 if the law regarding void transactions, as comprised in their altered 
 yth section, is to be boldly and searchingly administered, 
 and all the transactions which in their heavy and multitudinous 
 insolvencies will be found to fall within it fearlessly attacked, I 
 can only say that the Attorney-General of New South Wales ought 
 to be a happy man, and that I wish unfeignedly I had his place. 
 But, turning from this digression, I wish to state that I shall not 
 do anything definitive upon the subject, without the co-operation 
 of the Chief Justice. I shall, however, endeavour to make some 
 advance before His Honour's return in the preparation of three 
 Bills: one to amend the law of tacit mortgages; one to make 
 some changes in the practice relative to general bonds ; and one 
 to treat of the insolvent law. The Chief Justice and the other 
 judges shall, however, fully understand what is intended, before any 
 of these bills is laid upon the table. 
 
 ON MUNICIPAL ASSESSMENT OF 
 GOVERNMENT BUILDINGS. 
 
 \Legislative Council, March 20, 1843.] 
 
 The ATTORNEY-GENERAL said : I do not know that there is 
 much, if anything, to be added to what is contained uoon this sub- 
 ject in your Excellency's minute. The history of the bill which 
 is now to be repealed, will be fresh in the recollection of the Coun-
 
 ON MUNICIPAL ASSESSMENT OF GOVERNMENT BUILDIMGS.. I 79 
 
 cil. The Cape Town Municipality demanded that the immov- 
 able property belonging to the Crown should be assessed for the 
 purpose of municipal taxation. No other Municipality in the 
 colony had ever made a similar demand ; and as it was evident 
 that one weight and one measure should be used in all cases of the 
 same kind, it became necessary to consider whether the principle 
 of assessment should be withheld from Cape Town or conceded to 
 the other corporations. Your Excellency and your Executive 
 Council, upon a review of the relations subsisting between the 
 general government and the municipal bodies of this colony, were 
 of opinion that such a charge as that sought to be made by the 
 Municipality of Cape Town was not an equitable charge. We 
 conceived that the public revenue contributed so much towards 
 certain objects which were mainly of municipal advantage, that 
 the principle of set-off was fairly applicable to the case, and that 
 that principle furnished a sufficient answer to -.vhat was admitted, 
 for the sake of argument, to be a prima facie right. The effect of 
 the Royal Prerogative was alluded to in the discussion in this 
 Council, but only to be rejected as too questionable a principle to 
 rest resistance on, and the matter was argued upon the ground 
 referred to, namely, that of compensation. I gather from the 
 minute of your Excellency that the Secretary of State does 
 not consider this principle of compensation, or set off, a proper 
 one to apply to such a case ; and that, in his lordship's opinion, 
 the better way is, to admit the present demand, and go into a 
 separate inquiry in order to settle the extent to which, here- 
 after, the general revenue is to contribute to purposes of 
 municipal convenience. Such being his lordship's views upon 
 the subject, it is the duty of the Executive to follow them implicitly, 
 whatever their own private opinions might chance to be (and my 
 own, I confess, is not even yet completely in accordance with 
 that of the Secretary of State, for I for see no small difficulty in 
 conducting the inquiry which he directs), and in obedience to 
 those views a repealing Ordinance has now been laid upon the 
 table. I think I may safely say that, neither in the cheerful 
 readiness with which the government obeys the decision of Lord
 
 I 8O ON MUNICIPAL ASSESS MENT OF GOVERNMENT BUILDINGS. 
 
 Stanley, nor in the original introduction of the measure which 
 is now to be rescinded, has the Executive Government shown 
 any ill-will to municipal institutions, or any desire to interfere with 
 the fair and proper rights and privileges of the Cape Town Corpor- 
 ation. I venture, upon this subject, to speak for all my official 
 friends as well as for myself, who had early in this colony an 
 opportunity of evincing, in the preparation of the present Cape 
 Town Ordinance, my desire to confer powers and privileges in 
 no niggard or unfriendly spirit, and who have since oeen glad, 
 whenever the commissioners could make me of the smallest 
 service. When the repealing Ordinance shall be passed, the 
 Municipality will have a right to send their collector for the tax, 
 and it appears to me that your Excellency should arrange that all 
 other Municipalities should be placed upon the same footing. I 
 am convinced that you are just as little disposed as I am myself, to 
 give to a comparatively powerful claimant what you would with- 
 hold from claimants not so powerful. The other Municipalities 
 ought, in my opinion, to be informed that, as th<--y have the same 
 legal rights as Cape Town, the government is prepared to recognize 
 them to the same extent. If, hereafter, any new principle should 
 be introduced with reference to the amount which the general 
 revenue is to contribute for municipal purposes, all Municipalities 
 equally must be governed by that principle. But, in the mean 
 time, all Municipalities equally are entitled to assess the immov- 
 able property of the Crown. Graham's Town is, of course, in 
 the same position with Cape Town ; and it is an obvious dictate 
 of common justice, that neither of these two influential Munici- 
 palities should enjoy a single advantage which is not equally 
 participated in by Beaufort, by Cradock, or any other the humblest 
 corporation in the whole colony.
 
 ON THE DEEDS ATTESTATION BILL. l8l 
 
 ON THE DEEDS ATTESTATION 
 
 BILL. 
 
 {Legislative Council, April 23, 1843.] 
 
 Council then went into committee on the Deeds Attestation 
 Bill. 
 
 The ATTORNEY-GENERAL said, the only change in this Bill, not 
 merely of a verbal nature, which he contemplated proposing, was 
 one that had been suggested by one of the judges ; namely, the 
 insertion of a provision to the effect that where a will, or other in 
 strument, happens to be written on more leaves than one, each 
 separate leaf should bear the signature of the party and of the 
 attesting witnesses. The object of this was to prevent fraud. It 
 was clear that if any instrument, a will, for instance, were written 
 upon the three leaves of paper then in his hands, the first only of 
 which was signed by the testator, there was nothing to prevent the 
 two of them from being removed and two others from being sub- 
 stituted in their room, which, although made so as to connect in 
 reading with the leaf left, should entirely change the nature ot the 
 document. By requiring that each separate leaf should be signed* 
 this species of fraud would be effectually prevented. The only 
 reason why he had omitted to make this provision when originally 
 drawing the bill was grounded on a doubt whether this might not 
 be considered an improvement so foreign to the habits of the people 
 of this colony that they might not readily fall into the practice, and 
 that thus, in attempting to prevent fraud, we might possibly invali- 
 date many bonafide instruments. But it nad occurred to him (the 
 Attorney-General) that, by means of a Government advertisement, 
 which might be afterwards printed in the form of handbills, and ex- 
 tensively circulated by the aid of the civil commissioners, clergymen 
 and field-cornets throughout the colony, very simple directions 
 as to how wills should be made, might serve to spread sufficiently a
 
 l82 ON THE DEEDS ATTESTATION BILL. 
 
 knowledge of the simplified system in regard to such instruments 
 which the Council proposed to substitute for that which formerly 
 existed. It certainly appeared to him that in no way other than 
 that proposed could perfect security be obtained. 
 
 Mr. EBDEN believed that in England every sheet must bear the 
 signature of the testator, but it was not required that every sheet 
 should be signed by the attesting witnesses. 
 
 The ATTORNEY-GENERAL said that his hon. friend had in sub- 
 stance stated the former practice in the mother country. But the 
 law there had been altered. By the Statute of Frauds, real pro- 
 perty could only be devised by a will signed by the testator in the 
 presence of three, witnesses ; while wills bequeathing personal pro- 
 perty, not being within the statute, required to be witnessed by 
 no witnesses at all. The consequence was that half a million of 
 money might be left (stock in the public funds was made, by 
 some Act of one of the George's, bequeathable by will witnessed 
 by two witnesses) by a testamentary writing totally unattested, 
 and even the will itself, as was, he believed, the case with the 
 famous will of Jenny Wood, of Gloucester, might be collected 
 from a number of loose papers huddled altogether. This was not 
 a satisfactory state of things ; and accordingly the recent Statute 
 of Wills, founded upon the report of the Real Property Commis- 
 sioners, has abolished the distinction between wills of realty and 
 wills of personalty, and made two witnesses necessary to every sort 
 of will. But it was a little singular that although the practice of 
 conveyancers, under the old law, had been to require that the 
 name of the testator should be signed upon every sheet of paper, 
 nothing of the kind seems to be contemplated by the Act of Vic- 
 toria, and he took it that, under that Act, a will in England, 
 though written upon fifty separate leaves, is valid if the last leaf be 
 signed by the testator and the witnesses. If, therefore, the Council 
 should adopt the alteration which he now proposed, a rule would 
 be established for this colony somewhat different from the rule 
 which prevailed in England, but analogous, he believed, to that 
 which had for the sake of security at all times obtained in 
 Scotland.
 
 ON THE INSOLVENT LAW. 183 
 
 ON THE INSOLVENT LAW. 
 
 [Legislative Council, June 13, 1843.] 
 
 Mr. Ross : If there is no other business before the Council, I 
 would beg leave to call the particular attention of Her Majesty's 
 Attorney-General to the Ordinance so long promised on the subject 
 of the insolvent law. A decision has been given in the Court of 
 Justice yesterday which has created the greatest alarm throughout 
 the colony. As an individual I can state that, according to that 
 decision, I only need to have one enemy in a house with which I 
 have dealt for years, who should choose to declare that he knew 
 himself, six or seven years ago, to be in a state of insolvency, and 
 I would be a ruined man. When I last called the attention of 
 the Attorney-General to this subject, his chief, if not his only 
 reason, for not proceeding in the matter was, that the Chief 
 Justice, who had promised to make some report upon it, was then 
 in the country. His Honour has now, however, been some time 
 returned, and this decision of the court yesterday has, as I have said, 
 created very general alarm. It appears to me that this is a subject to 
 which the Attorney-General should give his very earliest attention ; 
 and I am sure that nothing more is required than what I have now 
 stated, to enlist his good feelings in behalf of the mercantile interests 
 which are placed in such danger by the law as it now stands. I 
 have no doubt that, if the thing is not entered upon immediately, 
 there will be memorial upon memorial poured in upon the Govern- 
 ment, on the subject of that law. 
 
 ATTORNEY-GENERAL : It will be remembered that this subject 
 was mentioned by my hon. friend when the Chief Justice was on 
 circuit, and that the further consideration of it was postponed 
 under an impression that on his return the Council would be 
 favoured, through your Excellency, with the views of the judges 
 on the principal alterations suggested in the report of the Insolvent
 
 184 ON THE INSOLVENT LAW. 
 
 Law Committee, which has now been for some time before the 
 public. I have since, however, had reason to think that the judges, 
 or at least some of them, do not consider the suggestions of that 
 report to be sufficiently specific to allow of their .being discussed 
 with advantage ; that we have not stated with the necessary dis- 
 tinctness the precise mode in which it it is proposed that the law 
 should be amended ; and that, therefore, they would rather reserve 
 their opinion until the new law should be drawn out. Under these 
 circumstances, supported by the mercantile opinions to which my 
 hon. friend has alluded, and my own strong impressions on the 
 subject, I have no hesitation in at once pledging myself (Father 
 Matthew has taught us all the use of pledges) to introduce, 
 within a month, a bill to amend the 64th Ordinance, and to be 
 framed principally upon the recommendations of the report now 
 before the Council. That report has been under the consideration of 
 one member of the bench, who has made many just and valuable 
 observations upon some portions of it ; but he has not given his 
 views upon the two main points of difficulty involved in the yth and 
 nth sections of Ordinance No. 64, namely, alienations and payments 
 being undue preferences. I shall now, however, proceed, without 
 further delay, to put the recommendations of the report into ship- 
 shape, and I hope the result will be to devise some system that 
 shall not be liable to the objections urged against the present law. 
 I always thought and said that the intention of the framers of 
 Ordinance 64 is unquestionably good ; but it appears to me that 
 the good proposed is an impracticable good ; a good which cannot 
 be realized without creating far more evil than it compensates 
 for. It proceeds upon a principle which it carries out with ihe 
 greatest strictness of any system ever devised a principle which, 
 at first sight, seems certainly a most equitable one, namely, to col- 
 lect the greatest quantity of money to be divided among the credi- 
 tors of the insolvent estate. But it is quite clear that in working 
 out this object, the present law has introduced an instability into 
 mercantile tranactions generally, for which no occasional addition 
 of sixpence or even a rix-dollar in the pound to the dividend in an 
 insolvent estate can ever countervail. With this observation as to
 
 ON THE JUDICIAL CIRCUIT. I 85 
 
 the principles on which the new bill will be founded, I shall only 
 now repeat my pledge, to propitiate my honourable friend by pro- 
 ducing the draft of that bill within a month from the present time. 
 
 ON THE JUDICIAL CIRCUIT. 
 
 [Legislative Council, June 13, 1843.] 
 
 The ATTORNEY-GENERAL said : I do not know that I should have 
 felt it necessary to trouble your Excellency with any observations 
 after the clear and efficient manner in which the several topics 
 brought before the Council have been treated by the Secretary to 
 Government, were it not that upon one, at least, of those subjects, 
 my hon. friend declined to remark, intimating that such notice as 
 it might require would come with greater propriety from some mem- 
 ber more conversant than himself with the judicial system of the 
 colony. Under those circumstances, I feel myself impelled to 
 throw out some thoughts upon the several points which have been 
 adverted to, although I cannot hold forth any hope that I shall be 
 able to offer anything considered and matured with that decree of 
 care and deliberation without which it is very expedient that 
 topics so difficult and delicate should not be touched upon by any 
 member of this Council. Could I have foreseen what was 
 coming, and more particularly the introduction into this discus- 
 .sion of the whole judicial system, I should have endeavoured 
 iince forewarned is forearmed, to prepare myself to state my sen 
 timents in a manner which, having been the result of previous medita- 
 tion, there would be little likelihood that I should afterwards see 
 occasion to modify or alter. I was aware, indeed, that my hon. friend 
 (Mr. Ebden) meant to make to-day some remarks upon the annual 
 estimates; but [ did not then discover that connection between the 
 estimates and the judicial system which has led my hon. friend to the 
 subject matter of the observations which he has offered here to-day. 
 With reference to those observations, however, I am bound to echo
 
 I 86 ON THE JUDICIAL CIRCUIT. 
 
 the commendation bestowed on my hon. friend the Secretary to Gov- 
 ernment, and to say, that, in their general tone and temper, there 
 was nothing with which any one could quarrel. He has spoken 
 about matters, where there were temptations to go wrong, with great 
 good humour ; both the hon. members who succeeded him have 
 spoken with equal temper; and it is my hope, upon this occasion, 
 to follow the multitude, not to do evil, but to do well, and to speak, 
 myself, with great good humour too. In that spirit my hon. friend 
 will allow me to express my admiration of the many different and 
 difficult points which he contrived to put into one short speech, 
 for it was a short speech in every sense, and, considering the sub- 
 jects of which it treated, one of the shortest speeches ever spoken. 
 The Judicial System; the Pension List; the Robben Island Com- 
 mittee ; the State of the Revenue ; Emigration ; Public Works ; 
 and the Negro Fund, have all been compressed, by some force 
 to which the Bramah Press is but a trifle, into something about 
 three quarters of an hour ; and I am really surprised at the 
 skilful manner in which my hon. friend has handled, upon 
 this occasion, such a multiplicity of topics. And, first, I am 
 called upon to notice the remarks which were made regarding the 
 powers and privileges of this Council, and the several disputed! 
 topics which have been referred to the Secretary of State. I 
 do not understand my hon. friend as intending, upon this sub- 
 ject, to impute any blame to your. Excellency or the Execu- 
 tive. It is clear as light that no blame can possibly attach. 
 The matters in question were discussed in this Council at great: 
 length, at greater length, indeed, than the public altogether relished ; 
 though by no means more voluminously than their constitutional 
 importance warranted ; and when we had done discussing them 
 they were transmitted to the Secretary of State for his decision. 
 The Secretary of State, impressed, I presume, with the magnitude 
 of the subject, and fearful to do anything in a matter of such extreme 
 importance without great deliberation, has not yet favoured your 
 Excellency with his views upon our controversy. The appeal, how- 
 ever, is still pending, and I will venture to promise that has soon as. 
 your Excellency is apprised of the judgment of the superior court*
 
 ON THE JUDICIAL CIRCUIT. l8/ 
 
 you will lose no time in communicating to this Council the result 
 of a reference with which its powers and privileges are so intimately 
 connected. Under these circumstances no censure can possibly be 
 cast upon the Colonial Government; and my hon. friend, I imagine, 
 has only adverted to the subject, because although quite unconnected 
 with the estimates, he was anxious to know the position in which it 
 stood, and apprehensive that he might not have another opportunity. 
 The next topic upon which my hon. friend observed, was the ad- 
 ministration of justice in this colony. He says it is far too dear, 
 and computes it to cost about one-fourth of your whole annual 
 expenditure. This, certainly, is a large amount. I should not 
 have thought that it was quite so large, but being unable, at 
 present, to check the calculations on which his estimate is founded, 
 I shall take it for granted that it has been accurately framed. 
 Admitting, then, as I have already done, that the expenditure is 
 large, I must yet express my confidence that your Excellency, and 
 my hon. friend himself, and every member of this Council, will 
 agree with me in thinking that while economy is a good thing, 
 there may yet be too much of it ; and that economy in the 
 administration of justice is a very suspicious principle of action. 
 If you want to have a good article, you must pay the price of a 
 good article. This is an axiom which my hon. friend will, with 
 myself, recognize at once. And in considering the charge atten- 
 dant upon the administration of justice, we should never lose sight 
 of the fact, that the cost of dispensing justice to a very scattered 
 population, spread over a very extensive territory, must necessarily 
 bear a much larger proportion to the revenue derivable from such 
 a population, than will be found to be the case where the 
 people are condensed and the district to be traversed by judges, 
 jurymen, and witnesses, comparatively small ; and that in this 
 colony the expense of anything which may be termed the admini- 
 stration of justice, instead of the administration of injustice, 
 must inevitably absorb no small proportion of our revenue. My 
 hon. friend refers to an opinion which was, he says, pronounced by 
 the Chief Justice when at Beaufort, and considers that, by restrict- 
 ing ourselves to one circuit in the year instead of two, and increas-
 
 i88 
 
 ON THE JUDICIAL CIRCUIT. 
 
 ing the jurisdiction cf the resident magistrates, a considerable 
 saving might be made. Upon this subject I would not be under- 
 stood as having formed, or as now meaning to express, any positive 
 opinion. I am not in a position to state the amount of the annual 
 saving which would be secured by the alteration recommended, 
 nor to estimate the many other important considerations which must 
 be deliberately weighed before any change takes place. It is clear 
 that the question of one circuit instead of two, is intimately con- 
 nected with the question of increasing the magisterial jurisdiction. 
 It will not follow, indeed, because you increase the jurisdiction of 
 the magistrates, that you should therefore reduce the number of your 
 circuits ; but the converse is indisputable, namely, that if you re- 
 duce the number of your circuits, you must of necessity increase the 
 jurisdiction of your magistrates. If the question of one circuit or 
 two is to be made a mere money matter, I have no doubt that 
 strong grounds may be given for" the change suggested. The cost 
 of convicting our criminals, according to the present system, will 
 appear out of all proportion. Theft is the chief crime in the 
 colony, and yet, I should suppose, that if you were to compare the 
 expense of a circuit made to try the thieves with the aggregate value 
 of all the property which those thieves were to be tried for steal- 
 ing, it would be found that the latter would not equal the former, 
 nor indeed come near it. This, it may be said, is monstrous. But 
 consider the thing more closely. Is it clear that you should, on 
 principle, set off these items the one against the other ? Is the com- 
 parative scantiness of crime invariably a ground for relaxing your 
 endeavours to keep it down ? The Celestial Emperor pays his 
 physicians when he is well, and stops their fees when he is sick ; 
 and, upon the same principle, you should not begrudge the ex- 
 penses of your circuit judges because the state of crime is what it 
 is, but rather the reverse. But waiving this, I would observe that, 
 in a social sense, the frequent visits of the judge are very useful 
 in the country districts. Were we to lose sight of the fact that 
 he tries a single prisoner, or decides one civil case, I should yet 
 be of opinion, from what I saw when I had the honour to go a 
 circuit with the Chief Justice, that the effect of the appearance and
 
 ON THE JUDICIAL CIRCUIT. 189 
 
 addresses of such a functionary in our various district towns, is 
 very beneficial. The jurymen, the witnesses, aud the public, who 
 always crowd the court, receive from the judge, to whom they 
 obviously hearken with great eagerness and attention, lessons in re- 
 gard to what is right and what is wrong, what is lawful and what 
 is not, which they will not fail to remember, to tell to their 
 neighbours when they go home, and to lay up for service when 
 occasion may arise. In fact the best schoolmaster who is abroad 
 in this colony is the judge on circuit. It appears to me that 
 the considerations at which I have now glanced are entitled to 
 some weight ; but having glanced at them, I shall refrain from going 
 further and pronouncing what would be a premature opinion. But be 
 the circuit question decided as it may, the question of the increase of 
 the magisterial jurisdiction has an independent interest and impor- 
 tance. There was, some years ago, a bill before this Council having for 
 its object the extension of that jurisdiction, but, for some reason with 
 which I am unacquainted, it was dropped. I once read that bill, and 
 it struck me as being a very able one, although I cannot say that, at 
 this moment, I remember its details. But the subject, as it strikes 
 my mind, is not destitute of difficulty. Your object is, I presume, 
 to save expense. If you continue to have two circuits, I scarcely 
 see how this saving can be anything very considerable. The exten- 
 sion of the magistrate's jurisdiction cannot, of course, affect the 
 travelling charge of the judge. Then there remain to be considered 
 
 the expenses of jurymen and witnesses 
 
 Mr. EBDEN : A most important item. 
 
 ATTORNEY-GENERAL : A most important item no doubt ; and it 
 is to that which you justly call so, that I wish to direct the atten- 
 tion of the Council. If the judge comes twice a year, the jurymen 
 will do the same, and the charge in that respect will remain pretty 
 much in stafu qu. But it is supposed that there may be a great 
 saving in the charge for witnesses. At present, the witnesses come 
 to the district town to the preliminary examination. When that 
 is over, they go home again. By and bye, when the circuit comes 
 they are called up to the district town once more. Increase, it is 
 said, the jurisdiction of the magistrate, and in every case which
 
 J9O ON THE JUDICIAL CIRCUIT. 
 
 will thereby be withdrawn from circuit, the cost of a double journey 
 will be saved. Is this clear ? I doubt it. Take a case. Wildboy 
 is brought in to-day, charged by a farmer with stealing his ox. 
 The farmer having missed the animal, followed up the spoor, and 
 finding the ox at the prisoner's kraal, concluded that he was a 
 thief ; whereupon taking him by the neck, or tying him with a 
 riem, he brings him off to the magistrate directly. The herds- 
 man and the other witnesses against Wildboy are also in attend- 
 ance, and the case seems ready for decision. But will the law of 
 England, or any English Secretary of State, allow us to haul a man 
 
 . off, without a moment's notice, and put him instantly upon his 
 trial, no time given to him to consult his friends, prepare his case, 
 or get in his witnesses ? This can never be ; and all, then, that 
 can be done is, to take down the depositions of the witnesses for the 
 prosecution, so as to let them go home, and remand the prisoner for a 
 future trial. That future trial comes round, and Wildboy has his 
 witnesses. But it is soon found that, there are several points that 
 need more complete elucidation, and that unless we have the wit- 
 nesses on both sides present together, so that, when necessary, we 
 can confront them with each other, we really cannot try the case at 
 all. Here seems to be a great difficulty, for you are driven to the 
 necessity of forcing a man to stand his trial at a moment when he is 
 not, and cannot be, prepared to do so, or else of incurring, so far as 
 the witnesses are concerned, the expenses of a double journey. 
 
 Mr. Ross : 1 would ask, which is better for Wildboy : to be 
 tried by the magistrate at the moment, or to remain in prison until 
 such time as the circuit judge comes round ? 
 
 ATTORNEY-GENERAL : I feel the force of that remark ; but I think 
 it might be answered, although I would rather not delay just now 
 to answer it. Upon this point I shall dwell no longer, simply 
 expressing my belief that it will not be easy to devise a system by 
 which the prisoner shall receive a fair trial, and the prosecutor's 
 witnesses be required to make but one journey. Resuming the 
 consideration of the judicial system, generally, 1 have to record my 
 dissent from a plan of reducing its expense which has been advanced 
 by my hon. friend. Give, he says, one judge to the Eastern 
 
 Districts, one judge to the Western Districts, and trial by jury
 
 ON THE JUDICIAL CIRCUIT. 19 I 
 
 in civil cases, and the administration of justice will be far more 
 economically managed. Two circuits a-year would, I fear, be 
 rather hard work for such a small establishment, and even one cir- 
 cuit would keep two judges busy ; but we will let that pass. I, for 
 one, however, frankly declare that I have no desire to see but a single 
 judge upon the bench ; and that, in my opinion, three heads are 
 better than one any day in the week. Many reasons might be given 
 for this, but it will suffice to say that an algebraist can do many 
 things with the number three which cannot be done with either 
 two or one ; and so I rest my preference upon this algebraic rea- 
 son, and will not occupy the time of the Council by stating any 
 other. Considering that we are seven or eight thousand miles from 
 the court of appeal, I conceive it to be very desirable that we should, 
 if possible, have our local court so constituted as to relieve suitors 
 from the cost and inconvenience of running continually to the 
 cock-pit. Upon the subject of trial by jury in civil cases, I shall, 
 at present, only state, that the subject is too large a one to be effi- 
 ciently discussed to-day ; and that it is too completely distinct from 
 any question properly arising out of the annual estimates, to be, on 
 this occasion, a legitimate subject of discussion. Passing on, then, to 
 the observations of my hon. friend connected with the Pension List, I 
 have merely to remark that his suggestion, relative to the establish- 
 ment of a provident fund for civil servants, is one which it would 
 serve little practical purpose to debate ; and that, while I frankly 
 admit that a heavy pension list has increased, is increasing, and ought 
 to be diminished, I would yet avail myself of this opportunity of 
 saying, what I am sure will meet the approval of every one who 
 hears me ; that I should have been very sorry, indeed, if the claims 
 of a venerable functionary, whose case was mentioned at a former 
 meeting when I chanced to be engaged elsewhere, had not been 
 recognized in the manner in which they have been met, and if the 
 principle already acted on in other instances had been disregarded 
 in such a case as his. There are, I think, numerous considerations 
 connected with the old services, high character, and long standing 
 in the colony, of the gentleman upon whom Her Majesty has been 
 pleased to bestow the recent pension which will tend to make
 
 I9 2 ON THE JUDICIAL CIRCUIT. 
 
 every colonist contemplate it with pleasure. Advancing on his- 
 circuit, my hon. friend next adverted to the charge of the Kafir 
 police. He says, as I understand him, that he would do away witti 
 the police by doing away with the treaties ; but will he be allow- 
 ed to do away with treaties ? Does he really think that the Secre- 
 tary of State will listen to a proposal, not to work the Kaffr police 
 system more economically, not to turn the annual charge of that 
 system into a fund for subsidising the chiefs and making them your 
 police, not to combine these two ideas in some other way, so as 
 most efficiently to guard the frontier, but abolish the treaties 
 altogether and restore the old irresponsible commando system once 
 
 again 
 
 Mr. EBDEN : Pardon me ! Not the " irresponsible commando 
 system," but the wise, humane, and enlightened policy of Sir 
 Benjamin D'Urban, to which, to use the words of your Excel- 
 lency on another occasion, I do not believe that twenty persons in the 
 
 whole colony would be found to be opposed 
 
 Mr. Ross : And which must be ultimately adopted ! 
 Mr. EBDEN : And which must be ultimately adopted ! 
 ATTORNEY-GENERAL : Well, perhaps the good time is coming 
 but the fruit is not yet ripe. And remember, that even after 
 Adelaide shall have been taken in, you must calculate upon Kafir 
 depredations still, because you will still have a frontier which has 
 cattle within it, and which will still have beyond it people 
 who are fond of cattle. Until you shall have advanced your 
 boundary to the interior, I do not see how cattle thefts are 
 to be prevented by enclosing territory. If, then, such offences 
 must come, the question is, whether the native tribes are to be 
 treated with, as much as possible, in a peaceful way, or whether 
 they should be hunted like wolves, with coercion and commandos? 
 Perhaps, under all these circumstances, it may be wiser to bear the 
 ills we have than rush on others that we know not of. And, for 
 my own part, much as I deplore the extent to which depredations 
 have been lately carried, and sincerely as I should rejoice in any 
 measures which should prevent those depredations and punish the 
 depredators, I cannot suffer myself to be frightened out of my
 
 ON THE JUDICIAL CIRCUIT. 193 
 
 wits by the state of the border, or conclude that, in that quarter 
 chaos is come again, and life and property are equally unsafe, so 
 long as I see the purchase price of farms, lying in the midst of all 
 the mischief, steadily advancing. When I hear of losses of cattle,- 
 of native foreigners in arms, and of the impossibility of pre- 
 serving anything from the audacity of those incorrigible thieves, 
 I do not shut my ears to ""he remonstrances of the sufferers ; but 
 when I hear, also, that that very property will bring far more money 
 at this very moment than it ever did before, I cannot feel that 
 the evil is one of that absolutely ruinous description which some 
 persons, with natural and excusable exaggerations, are in the habit 
 of representing. Passing, now, to the question of Emigration and 
 Public Works, I have, in connection with the latter, to express the 
 pleasure with which I heard the remark of my hon. friend the 
 Secretary to Government. It is a good principle to help those who 
 help themselves. If I understood my hon. friend correctly, his idea 
 is, that in future no grant should be made for any branch road unless 
 the public or parties interested shall come forward with an equal 
 amount. That this announcement will prove a stimulant to local 
 energy, I confidently trust ; and in connexion with it I would 
 remark, with reference to the rivalship between Du Toit's Kloof 
 and Mostert's Hoek, that an idea is entertained of endeavouring to 
 open Mostert's Hoek without resorting to the principle of assess- 
 ment ; and that in that case, my next Road Bill will be confined 
 to providing for a good road over the Cape Downs and a good 
 road to Koeberg, leaving the opening of Du Toit's Kloof to 
 be separately considered as a Worcester question. For the two 
 roads which I have just mentioned, I would fondly hope that such 
 a contribution might be afforded by the general revenue as will 
 render the proposed assessment by no means onerous. I have now 
 reached the last of the points adverted to by my hon. friend (the 
 Negro Fund.) My hon. friend opposite (Mr Ross) and my hon. 
 friend the Secretary to Government, have so clearly discussed and 
 settled the principal circumstances belonging to this matter, that I 
 shall not attempt to add a word to their unanswerable statements. 
 On one of the resolutions of my hon. friend, which seems to raise
 
 ON THE JUDICIAL CIRCUIT. 
 
 what is, in some degree, a legal question, I may be pardoned for 
 saying a few words. He denies the right of the Secretary of State 
 to authorize the application of any part of the colonial re- 
 venue without the vote of this Council. And, undoubtedly, if 
 the House of Commons and this Council are to be consider- 
 ed as analogous bodies, he is right ; for the sanction of the 
 representatives of the people is essential to every application 
 of their money, If, then, Lord Ripon's despatch of 1831 created 
 this Council a House of Commons in regard to all financial 
 questions, there should have been a vote of this Council to 
 authorize the expenditure incurred by indroducing the Negroes 
 from St. Helena. But we must, here, be careful to distinguish. 
 The money granted by the House of Commons is the money of the 
 people. Money bills are their own making, and that exclusively. 
 The Lords may not alter a money bill, the Crown may not alter 
 it. No power must meddle with it but that of the people's house. 
 Such is the revenue of England. What is the revenne of this 
 Colony ? 
 
 Mr. EBDEN : The money of the people. 
 
 The ATTORNEY-GENERAL : In one sense it is. But I am speaking 
 as a lawyer, and as a lawyer I say that it is not the money 
 of the people, but Her Majesty's revenue in this colony. Do 
 we not remember that when the Secretary of State censured 
 this Council for voting _i,ooo to Col. Smith, he distinctly 
 told them that they had made too free with " Her Majesty's 
 revenue in this colony ?" I quote the words from memory, but I 
 believe that I quote correctly. If this revenue, then, is Her Majesty's 
 revenue, what are you ? " Well beloved " of Her Majesty every 
 one ; "trusty," all of you, to the last degree ; but, nevertheless 
 appointed only to watch over the Queen's purse, and see that her 
 servants do not cheat her. The money is not your numey. It is 
 the money of Her Majesty. You are authorized to audit the ac- 
 counts ; but as she may do what she likes with her own, her orders, 
 relative to the application of any portion of her own revenue, are 
 ample vouchers for whatever money she directs to be laid out ; and
 
 ON PAPER CURRENCY. 
 
 '95 
 
 it is impossible to argue that the vote of this Council is a legal con- 
 dition binding upon Her Majesty acting through her Secretary of 
 State. These hints arc offered as food for thought ; and, having 
 ventured them I have only to say respecting the 3,600 which is 
 lodged in the Cape of Good Hope no, not in the Cape of Good 
 Hope, but in the South African Bank, and which my hon. friend 
 thinks should not be there, but in the Treasury, that what my hon. 
 friend opposite (Mr Ross) has stated is perfectly correct ; that that 
 money has nothing whatever to do with the St. Helena importa- 
 tion ; and that you might just as well demand the fixed deposits of 
 A. B. or C. D. lying in the bank, as a sum circumstanced like that 
 in question. But, again, I think the Secretary to Government is 
 quite right in expressing his willingness to accept this money. If it 
 be offered he will by no means refuse it, and farther than this he 
 cannot go ; for to demand the assignment of the fund as a 
 matter of right would outrage, at once, every principle of com- 
 mon sense, common law, and common justice. I have now, Sir, 
 brought to a close my desultory observations ; and I have only to 
 express my hope that they have exhibited that degree of good 
 humour with which I promised that they should be characterized ; 
 and that, although totally unpremeditated, they may not be 
 such as I shall be called upon, after reflection, to retract. If, 
 however, I should unintentionally have gone astray, I shall not be 
 backward to acknowledge that I have been wrong, and to read my 
 recantation. 
 
 ON PAPER CURRENCY. 
 
 {Legislative Council, June 21, 1843.] 
 
 ATTORNEY-GENERAL : It may be proper to mention in corrobora- 
 tion of what the Secretary to Government has said, that the series of 
 twelve resolutions proposed to this Council by my then honourable 
 
 O 2
 
 196 ON PAPER CURRENCY. 
 
 and still, in the best sense of the word, honourable friend (Mr, 
 Craig) on the 3rd of July, 1841, and adopted by the Council, having^ 
 for their object the grappling with this paper money question have 
 all received the approval of Her Majesty's Government. It will be 
 recollected that the principle of those resolutions was this : Issue, 
 first, Government notes. Find out gradually and gently how much 
 Government paper money, convertible at pleasure at the will of the 
 holder, the necessities of the colony will absorb. Do not press or 
 force its circulation. But if the colony, owing to peculiar circum- 
 stances, agricultural, physical, and commercial, will derive advantage 
 from, and thus spontaneously resort to, an issue of notes to a certain 
 amount, then you are, to that amount, relieved from the necessity of 
 raising bullion to withdraw the old Government promissory notes. 
 But we also contemplated that there would be a considerable amount 
 of the paper debt which the necessities of the colony would not absorb, 
 in the shape of a new paper money ; and it was proposed to issue, 
 secondly, debentures to that amount ; and further, to borrow upon 
 similar debentures such a sum of money as would secure the con- 
 vertibility of the new paper issue. The majority of this Council 
 considered that by the plan of issuing a convertible money there 
 would be a large amount of debt, varying from 50,000 to 1 00,000, 
 saved to the Government, and that the plan would, at the 
 same time, furnish an important convenience to the public by facili- 
 tating remittances. These resolutions, to which my hon. friend 
 near me (Mr. Ebden) was opposed, were carried by a large 
 majority, and with his counter resolutions, proposing to issue de- 
 bentures at once for the whole amount of the existing paper debt, 
 went home to Her Majesty's Government. Under these cir- 
 cumstances Her Majesty's Government have approved, throughout, 
 of the plan of this Conncil, and not of the plan of my hon. friend^ 
 The anticipated advantage to be derived from, in part, redeeming 
 the old paper debt by an issue of another decription of notes, my 
 hon. friend considers to be a mere phantom ; but I can only say 
 that many men not of the same sagacity, perhaps, as my hon. 
 friend, for I know no man of the same sagacity in business 
 but many men in business, I should say nine-tenths of them, in
 
 ON PAPER CURRENCY. 197 
 
 this place, are with the Council in opinion, and against him. Yet 
 the minority, I am aware, is frequently right, and the multitude 
 prone to error ; and all, therefore, that the Government can do is 
 to attempt to keep a certain amount of these notes in circulation, 
 taking care at the same time to hold a sufficient sum in hand to 
 render them instantly convertible. And if we find that they re- 
 turn as fast as they are issued, that, in fact, the plan when tried is 
 found wanting, then the only course will be to abandon the project 
 and take the whole debt up on debentures. It will thus be clear 
 enough that the plan cannot be legitimately assailed except on the 
 assumption that the revenue of the colony, which is the thing for 
 this Council to conserve, will not be better off, but worse, by issuing, 
 if the colony wants it, 50,000 of paper, whereby an equivalent 
 amount of the colonial debt will be as effectually cancelled as if 
 such an amount of the notes now in the Commissariat chest were 
 put into the fire. 
 
 Mr. EBDEN : I deny the proposition. 
 
 ATTORNEY GENERAL : My proposition is, that it is cheaper to 
 borrow 100,000 in specie upon debentures than to borrow 
 150,000, inasmuch as I thereby gain at all events the interest of 
 50,000. This my hon. friend denies, and holds that debentures 
 should at once be issued for the whole existing debt. To the law, 
 then, and to the testimony. If, on trial, it be found that the plan 
 proposed by this Council is not practicable, it will be time to 
 adopt the other measure. But at present I am fully impressed that 
 the most desirable course is, to issue notes to such an amount as 
 can be easily kept in circulation; and I pledge my small financ : aJ 
 reputation upon the opinion that such notes, to the amount of n H 
 less than 50,000, will be absorbed by the commercial necessitiei 
 of the colony. As this is a legal subject, I may, perhaps, state 
 how my mind is affected by it. I must say that I do not at 
 present see either the necessity or expediency of coming to this 
 Council for any Ordinance connected with the intended paper 
 issue. There are now three banks that issue paper money, and 
 neither of them has an Ordinance for the purpose. There can be 
 DO necessity for an Ordinance authorising the issue of notes con-
 
 198 ON PAPER CURRENCY. 
 
 vcrtible at pleasure ; and the only way in which I can conceive an 
 Ordinance necessary would be, if it were proposed to issue notes 
 for smaller sums than 3 153 od., there being a law which forbids 
 the issue of smaller notes than notes for that amount. The ques- 
 tion of legal tender is quite a distinct matter. The only hardship 
 that could here arise would be, were an attempt made to make 
 that a legal tender which was not convertible at pleasure. But, 
 as I have said, the Government fully recognize the necessity of 
 keeping these notes convertible. Undertaking this obligation, the 
 Government desire for these notes no adventitious aid what- 
 ever, believing that they will, in public estimation, support 
 themselves. The question, however, of a legal tender is a legal 
 question, and while the Government will not, I imagine, dream of 
 coming to this Council for an Ordinance upon the subject, the 
 point of law, if there be one, must still remain open to such par- 
 ties as choose to raise it. Whether, in the absence of positive 
 enactment, such notes as we now contemplate would be a legal 
 tender, may be argued in court by whom it shall concern. We 
 are not in a situation to determine this question, and I am not 
 here to judge the judges. My hon. friend has referred to a judi- 
 cial decision in which it was held that the present paper money 
 was a legal tender, that is, was a mode of payment which, if re- 
 fused by the creditor when offered by the debtor, would throw 
 upon the former the costs of action brought. This was decided of 
 a paper money convertible, not directly in the yard below, but 
 through the medium of Treasury Bills payable in London, a circui- 
 tous mode of converting into gold, but still a mode of so converting. 
 The judges after solemn argument ruled, as I understand (I was not 
 then in the colony) that the old Dutch rix-dollar notes were a legal 
 tender. My hon. friend may ask me if T see my way through this 
 judgment. Certainly, without great consideration, I would not ven- 
 ture to impugn it. The judgment went, I am informed, upon 
 the ground that the Colonial Government would have the preroga- 
 tive of making anything money which they issued as money. 
 With my English notions, I was, at first, rather startled by such a 
 doctrine, for in England, if I am not mistaken, while the Crown
 
 ON PAPER CURRENCY. 199 
 
 possesses the prerogative of affixing to money its value and denomina- 
 tion, the Crown can only make money by its prerogative of the 
 precious metals, gold and silver. It is only of these metals that, 
 by common law, the Prerogative can make money which 
 
 shall be a legal tender. But though the prerogative is limited 
 in England, Parliament is not. Parliament can make anything 
 money, old rags, or what is the same thing, bits of paper. The 
 latter was done in Pitt's time by the bank restriction, and during 
 that restriction, and while the notes were not convertible at all, 
 no plaintiff could arrest a defendant for debt unless he negatived, 
 in the affidavit to hold to bail, a tender of the sum due in Bank 
 of England notes. Parliament possesses what has been boldly cal- 
 '.ed omnipotence, and according to Coke, can do everything but 
 nakc a man a woman. Now prerogative, in England, where there 
 s a Parliament, is one thing, and prerogative in a Crown colony like 
 his, is quite another thing. When the paper money which the 
 >resent paper money represents was issued, the Government of 
 his colony was both executive and legislative ; in other words, it 
 'ossessed the powers of the Crown and the Parliament combined, 
 nd therefore may be well argued to have possessed the power of 
 laking its paper money a legal tender. Probably it was upon 
 ame such reasoning as this that the court proceeded in the case 
 eferred to by my hon. friend. If so, it is not reasoning which 
 /ould extend to a paper money issued now, when the legislative 
 unctions have been separated from the executive, and delegated 
 D this Council. But confined to the case which was actually 
 eforc the court, I should be disposed to consider it as satisfactory ; 
 [though, I confess, that when I first heard of the decision 1 did 
 lot clearly sec my way as to its principle.
 
 200 ON THE JUDGES' EXEMPTION FROM TAXATION. 
 
 ON THE JUDGES' EXEMPTION 
 FROM TAXATION. 
 
 [Legislative Council, July 22, 1843.] 
 
 ATTORNEY-GENERAL : It is but justice to my hon. friend opposite 
 (Mr. Ross) to express my conviction that, in anything which he has 
 said to-day, he had no ill-feeling whatever to the collector of taxes. 
 He is probably as well disposed towards the collector of taxes as 
 any other member of this Council. But my lion, friend has long 
 been laudably desirous to get these arrears of taxes collected, as far 
 as they can be collected, and written off as a bad debt when it is 
 found that you can collect no more. Differing from the collector of 
 taxes as to the best mode of attaining the end in view, he has been 
 constrained, by his sense of public duty, to declare the grounds of 
 that difference. He imputes to the collector no bad motive in the 
 world. It is not because he loves Caesar less, for he has, I know, 
 a regard for Mr. Rogerson, but because he loves Rome more, that 
 he acts as he does, for the sake of the Colonial Treasury. Some of 
 his remarks, no doubt, did seem to involve a certain degree of cen- 
 sure of the collector of taxes, a censure, by-the-bye, which has not 
 yet been proved to be deserved. I have pleasure in bearing testimony 
 to the integrity and zeal of Mr. Canstatt ; and I concur with the 
 Secretary to Government in thinking that it would, upon the whole, 
 have been more expedient in the case of Mr Canstatt to have 
 accepted his offer to allow his commission to be withheld until he 
 had completed his engagement, and, with that security for diligence, 
 have thrown open to the sub-collector the whole field which was 
 to be reaped, taking care not to give him his hire until he had 
 satisfied me that he had made it impossible for any one coming after 
 him to glean a single sheaf. Mr. Rogerson reasoned differently. 
 Men, he considered, arc but men, and the sub-collector, if enabled 
 to skim the cream of the whole dish, would be under a temptation
 
 ON THE JUDGES' EXEMPTION FROM TAXATION. 201 
 
 just to skim the cream and go no deeper. The large debts which, 
 generally speaking, are due by the most solvent men, might be col- 
 lected, and the smaller amounts, for collecting which the commission 
 could never compensate, might be left uncollected. When all the 
 remunerated work had been performed, the sub-collector might 
 protest that he had already exhausted four-and-twenty pairs of boots, 
 and that no amount of leather could make more of it, and so ask 
 for his commission, and be done with the whole thing. To guard 
 against such a contingency, the collector of taxes, acting upon not 
 a bad general principle, but one scarcely applicable with such a man 
 as Mr. Canstatt, gave out his lists district by district, and required 
 evidence that each list had been exhausted before he gave another. 
 By this means it appeared^to him, that the expectation of every 
 fresh list would operate as a stimulus to the collector of the old one, 
 and keep the sub-collector on his metal. But enough of this and 
 let it pass. As one of the members of Council who was present 
 on a former day, when the return adverted to by the Secretary to 
 Government was laid on the table, I have now to express my con- 
 currence in all that rny hon. friend has stated, and to declare that 
 the judges, in bringing the terms of that return under the notice 
 of your Excellency, acted with justness and propriety. The expres- 
 sions that they noticed were certainly ambiguous, and appear to bear 
 a. construction very injurious to the judicial character of the func- 
 tionaries to whom they relate. To suppose, however, that there was 
 in the mind of any one, any intention to show to any of the judges the 
 slightest disrespect, would be alike idle and unjust ; and I have no 
 doubt that the clear and manly explanation given by the Secretary to 
 Government will be considered ample and satisfactory in the quar- 
 ter to which it was directed. I may remark that, after bestowing 
 as much consideration as I was able to afford upon the point which 
 two of the judges made, I came to a clear and strong opinion that 
 the point thus made was not tenable. That opinion, and the 
 grounds of it, I submitted at greater length than was, perhaps, 
 required, for the consideration of your Excellency. That opinion I 
 have seen no reason to modify or change. But I am not disposed to 
 dogmatize upon the subject, or to maintain that the question is not
 
 2O2 ON THE JUDGES' EXEMPTION FROM TAXATION. 
 
 arguable, and still less am I disposed to withhold the expression of my 
 belief that the judges referred to, in claiming a right to deduct from 
 their annual salaries the amount of whatever annual interest they 
 were under an obligation to pay upon their debts, and to pay 
 income tax only on the balance, were governed by no other motive 
 than a desire to take the benefit of the law as they conscientiously 
 considered it to stand. As the Secretary to Government has said, 
 only two of the judges made the point. That is quite true, and 
 in stating it, the Secretary to Government had no intention what- 
 ever of making any distinction invidious towards the other judges. 
 We are not in a situation to say that the third judge dissented 
 from his brethren ; or that, being placed in equal circumstances, 
 he waived the point on which they insisted. On a former occa- 
 sion I expressed my sense of the character and merits of Mr 
 Justice Kekewich. But I cannot, upon any evidence now before 
 this Council, claim for him, in addition to his other merits, the 
 very great merit (for such I should, of course, consider it) of 
 agreeing in opinion with myself. Whether or not Mr. Kekewich 
 is in the happy condition of owing no man an} thing, we 
 cannot tell, but I have some reason to think, from what I 
 have heard, that our excellent friend is not subjected to those 
 quarterly or half-yearly calls which people subjected to pay- 
 ment of their six per cent, are obliged to bear ; and if this should 
 really be the state of things, he would not have possessed the only 
 ground on which his brethren claimed to be exempted. More I 
 need not say, except to repeat, first, my conviction that the two 
 judges in question will be perfectly satisfied with the explanation 
 given, for the one of them who happens to be now present (the 
 Chief Justice), I can speak with confidence ; and secondly, my 
 conviction, that if ever the point should be brought judicially be- 
 fore them, they will decide it as they shall be impelled to do by a 
 sense of duty. To say that those judges are proved by the extract 
 from their letter which has been read to have abandoned their pre- 
 vious opinions, would be, of course, unwarrantable ; and therefore it 
 is possible that some defendant may raise the point with me. Should 
 that be the case, I shall rely upon the candour of the bench
 
 ON THE DUTCH REFORMED CHURCH ORDINANCE. 203 
 
 for a fair hearing, which I am certain to receive ; and should I be 
 defeated, which I will anticipate, I shall look to your Excel- 
 lency for assistance in enabling me to take the opinion of the Cock 
 Pit. 
 
 ON THE DUTCH REFORMED 
 CHURCH ORDINANCE. 
 
 [Legislative Council, July 22, 1843.] 
 
 The ATTORNEY-GENERAL said : I wish to state, by the direction 
 of His Excellency the Governor, the course which is intended to be 
 pursued relative to a matter of considerable public interest and 
 importance. I allude to the rules and regulations of the Dutch 
 Reformed Church. The Council is aware that the Reverend the 
 Synod of that large and respectable denomination have expended 
 much time and labour in framing a code of laws more adapted to 
 the present circumstances of the church and the colony, than those 
 comprised in the Church Ordinance of Commissioner-General De 
 Mist, and that they have sent in to Government the volumi- 
 nous result of their protracted deliberations. Theie have received 
 that attention to which they were entitled ; but, without entering 
 just now upon the subject, I wish merely to observe, that His 
 Excellency is advised that an Ordinance of this Council will be the 
 most expedient mode of arranging the serveral important points 
 involved ; and that such an Ordinance, based upon principles 
 which will, it is to be hoped, be universally considered sound and 
 just, will be prepared forthwith, and be laid upon the table for 
 the necessary publication. P"or this purpose, and anxious to avoid 
 delay, I should respectfully suggest that Council shall adjourn till 
 Monday, the 3 1st inst., at which time I shall be prepared with a 
 draft of the proposed measure, and shall take an opportunity of ex- 
 plaining its leading principles. 
 
 Council adjourned accordingly till Monday next, the 3 1st inst..
 
 204 ON THE DUTCH REFORMED CHURCH BILL. 
 
 ON THE DUTCH REFORMED 
 CHURCH BILL. 
 
 {Legislative Council, July 31, 1843.]] 
 
 The ATTORNEY-GENERAL said : In pursuance, Sir, of the notice 
 which I gave at the last meeting of Council, I have now to lay upon 
 the table for publication, an Ordinance for the better regulation of 
 the ecclesiastical affairs of this Colony. In order that the bill, 
 which is very brief, may be fully understood, I shall trespass upon 
 *he Council by making some remarks explanatory of the principles 
 upon which it is based ; and if there be anything in this short piece 
 of legislation which calls for extended argument, I shall defer the 
 necessary discussion until the second reading. But in order that 
 no obscurity may hang over the subject, and that the draft in the 
 Gazette may be read with the assistance of whatever light I can 
 cast upon its main provisions, I think it right to state distinctly 
 what it is, and what it proposes to do. It will be in the recollection 
 of your Excellency, and of every member of this Council, that when 
 Commissioner-General De Mist was sent out to this colony by the 
 .then Batavian Government, he was authorized to supersede the 
 'Governor in regard to the function of making laws ; and that he was 
 invested with ample powers which, as far as my information reaches, 
 he exercised in a manner creditable to himself and greatly for the 
 .benefit of the community. He regulated the Orphan Chamber ; 
 lie provided for other important public institutions ; and amongst 
 ithe other subjects which required his attention, he proceeded to 
 provide for the ecclesiastical concerns of the colony, and accord- 
 ingly promulgated, on the 25th July, 1804, the Church Regula- 
 tions which I now hold in my hand. To read them, or any of 
 them, would be both tedious and unnecessary ; but it may be safely 
 .said, it will, indeed, be obvious to the most cursory perusal, that 
 while, in all probability, well suited to the condition of things in
 
 ON THE DUTCH REFORMED CHURCH BILL. 
 
 1804, and in accordance with the paternal perhaps rather too 
 paternal character of the Government of that day, they yet con- 
 tain, amongst some principles both sound and just, a number oF 
 provisions which have long been obsolete because they have been 
 long totally inapplicable. My eye is this moment caught by the fifth 
 article, which broadly declares that all religious teachers are obliged 
 in their public and private instructions to submit to the decrees. 
 of the Government in reference thereto ! Now, it so happens thac 
 it has not been the wont of the Governor of this colony, and thc- 
 bare idea of such an interference would be wholly repugnant to. 
 your Excellency's principles and disposition, to dictate to any 
 minister of religion the manner or terms in which he shall declare 
 his Master's message ; and any such dictation, if attempted, would be 
 justly felt to be an insult to the spirit of the age, an outrage upon the 
 religious liberty of the people, and a grievance which could not, and 
 which would not, be endured. Other instances of a similar nature 
 could readily be adduced, but it would be unpardonable to consume 
 the public time in proving what no one that I am aware of seriously 
 calls in question. It is proper to observe that in his first chapter, 
 the Commissioner treats generally and without distinction of all the 
 religious communities or denominations within the colony; and 
 having settled certain principles for their common rule and govern- 
 ment, he proceeds, in his second chapter, to provide with great 
 particularity for the chief church of the colony, the Dutch Reformed. 
 Both classes of legislation are alike inapplicable ; and then the 
 question arises, how are they to be got rid of? For the purpose 
 of determining this point, it is necessary to consider the nature of 
 those Church Regulations, and the legal character which they wear. 
 If they be merely the offspring of the Executive Government, an-. 
 Ordinance of this Council cannot be necessary for their repeal. la 
 that case, regulations which profess to guide and govern the various 
 religious denominations throughout the colony, and, amongst the 
 rest, the Dutch Reformed Church, could be altered by your 
 Excellency in your executive capacity as readily as those which 
 guide and govern the clerks in the Colonial Office. But it 
 is impossible, in my opinion, to view this instrument in such
 
 2O6 ON THE DUTCH REFORMED CHURCH BILL. 
 
 a light. Commissioner-General De Mist combined in his own 
 person both executive authority and legislative functions ; and 
 whatever he promulgated as a law is as much a law as any 
 Ordinance, now-a-days, of the Governor and Council. Consider- 
 ing the constitution of the colony in 1804, I should say that the 
 Church Order of De Mist is as much a law, and in the same sense 
 a law, as any other piece of local legislation to be found upon the 
 Statute Book prior to the capitulation. If this observation be well 
 founded, it will follow that, as the legislative function is now 
 divided between the Governor and this Council, the proper, if 
 not indispensable, mode of repealing the regulations of De Mist is 
 by an Ordinance of this Council. I am of opinion that your 
 Excellency could not, by affixing your name to a set of new regula- 
 tions and publishing them as the code of the Dutch Reformed 
 Church, get rid of the old law. I am equally of opinion that 
 the sanction of the Secretary of State bestowed upon the new 
 rules would be alike inoperative. Whatever the legislative power 
 has established, the legislative power must abrogate ; and it there- 
 fore appears to me that the Ordinance of De Mist demands for 
 its abrogation another Ordinance. We shall now, Sir, consider it 
 to be established that the old church regulations are inapplicable to 
 the times, and that their repeal is to be the work of this Council as 
 contra-distinguished from the work of the Colonial Government. 
 But simply to repeal will not be enough. Having made a clear 
 stage, you must introduce new characters. When one set of regu- 
 lations has been removed, provision must be made for the introduc- 
 tion of another to take their place. This point the bill provides 
 for. And with the reference to the mode in which such provi- 
 sion is made, I will only say that, although I cannot be certain 
 that it will obtain the unanimous concurrence of this Council, I 
 do hope that it will do so, and I shall feel disappointed if it do 
 not. The principle on which I propose that you should act is very 
 simple. No one, surely, who considers the present state of religion 
 in this colony, who considers what a church is, and is at all 
 acquainted with the nature of the Dutch Reformed Church, will 
 hesitate to admit the general principle, that every church and
 
 ON THE DUTCH REFORMED CHURCH BILL. 2O/ 
 
 denomination should be free to frame for itself the regulations 
 by which its own internal affairs shall be ruled and governed. 
 This is the principle with which I start. If any one thinks 
 that principle a bad one, I call upon him to state a better. 
 Jf the Dutch Reformed Church is not to regulate its own internal 
 affairs, some other power must regulate them, and, in this colony, 
 there are I conceive but two other quarters in which church 
 laws could be made, one the Executive Government, and the 
 other, this Council. Now I submit with confidence to your Ex- 
 cellency, and to every man who hears me, that it is beside the pur- 
 pose and out of the province of the Executive Government, and 
 alien altogether to the duties of us who are, to use a term a good 
 deal animadverted upon lately, mere " sciolists in theology," to 
 sit down in order to determine what shall be the doctrines professed 
 by the Dutch Preformed Church, or what shall be her discipline 
 for maintaining practical religion and sound morality amongst 
 her members. These are things with which the Executive 
 Government as such has no concern ; and in my opinion this 
 Council, legislating for the civil rights and secular interests 
 of the community at large, is just as little bound, and just 
 as little qualified, to undertake the delicate duty now in 
 question, as the Executive itself. Well, then, if we must have 
 Church Regulations, and if it be true that the Government should 
 not make them, some other body must be allowed to make them ; 
 and here, again, I submit with confidence, that, looking to the 
 condition of the colony, to the reason of the thing, and to the 
 principles and feelings of the Dutch Reformed Church, the body 
 to which belongs naturally, properly, and of right, the power and 
 the duty of framing regulations for that church, is and can be none 
 other than its General Assembly or Synod. I see that my hon. 
 friend (the Auditor-General) smiles at my mention of the Synod. 
 I have pronounced, it may be, 
 
 A name unmusical to Volscian ears, 
 
 And harsh in sound to his, 
 
 but I should hope not, for my hon. friend is himself a member 
 of the church, and he will agree with me that although you may
 
 2O8 ON THE DUTCH REFORMED CHURCH BILL. 
 
 be a very good man, and a very good subject, aye, and 
 a very good Christian too, without attaching any consequence to 
 such an assembly as a Synod ; yet that to be a sound and consistent 
 Presbyterian without so doing, is impossible. The gradation of 
 Church Courts with the Synod at their head is the essence of 
 Presbyterianism. In the rise from Consistories to Presbyteries, 
 and from Presbyteries to Synods, each being composed in certain 
 proportions of the clergy and the laity, lies the Presbyterian idea 
 of a true church, and a true apostolical succession, for, be they 
 right or be they wrong, Presbyterians do claim for their form of 
 <:hurch government a clear apostolical descent. Here it is that 
 Presbyterianism differs from Episcopalianism upon the one hand and 
 Independency upon the other. But we shall not discuss these 
 things. It is part of my argument and part of my plan, that: 
 such discussions should be kept out of this room ; but this much is- 
 clear, that if the Reformed Church of this colony be a Presbyterian 
 Church, its Synod or General Assembly is a natural if not an essential 
 part of its existence, and is the supreme court for determining all 
 questions connected with its doctrine, its discipline, and its govern- 
 ment. I am uttering no novelties. My excellent and much respected 
 friend, General Bell, in an official communication to the Synod, 
 bearing date January yth, 1840, uses these words : "His Excel- 
 lency, so far from desiring to lessen the authority of the church 
 in its internal management, is, in reality, most anxious to free it 
 from the trammels of secular interference in all spiritual or purely 
 ecclesiastical matters." Adopting this sentiment which, though 
 uttered in 1 840, has not yet grown stale, I wish to leave all such 
 matters to the legislation of the Synod, and then the question 
 arises, how far can it be trusted ? When we propose to get rid of 
 the necessity of considering here the five points of Calvin, and 
 the five hundred other such points which the proper regulation of 
 the church would call upon us to consider, points upon which 
 Dr. Chalmers maintains that we are and must be mere 
 <f sciolists," it becomes us to see, and guard against, the dangers, 
 if any, which are to be apprehended, and to provide against 
 all possibility of an abuse of the powers which we intend to dele-
 
 ON THE DUTCH REFORMED CHURCH BILL. 
 
 gate. Churchmen arc notoriously fond of power, at least we 
 often hear so, and churchmen are very much given to inter- 
 meddle with affairs which are other people's business, and not theirs, 
 and so it is indispensable to provide proper checks to keep church- 
 men in good order. Grant all this, and let us see the quarters 
 in which the Synod of the Dutch Reformed Church could have 
 any pretext whatever for overstepping their legitimate authority. 
 Those quarters are two in number, and but two human ingenuity 
 cannot make more of them. They will interfere, it may be said, 
 with the rights of Government, and interfere, also, with the 
 rights of the people. At present, some men may say, we have that 
 security for good ecclesiastical regulation which is afforded by the 
 responsibility of the duly constituted Government and Legislature 
 of the colony. With the General Assembly we are not so secured. Un- 
 der these circumstances, don't hand matters over to the tender 
 mercies of that body until you have provided against every descrip- 
 tion of abuse. Well, Sir, we are willing to do what is desired 
 The Synod is quite willing to have it done. Let us, therefore, see, 
 in the first placg, what rights has Government in connexion with 
 the Dutch Reformed Church ? Till we have fixed what these sre 
 we can't defend them. We must catch the hare before we can 
 cook it. The Government, I conceive, has only two rights to be 
 preserved, one the power of the purse, the other the privilege of 
 presenting ministers. I grant fully that the synod can pass no- 
 estimates affecting the public revenue, nor will my hon. friend 
 beside me (the Treasurer-General) act upon any warrant signed 
 even by the moderator. The synod, believe me, has no such 
 notion. But I propose to place this point beyond all question- 
 or controversy by declaring, in the spirit cf Commissioner De Mist, 
 that all contributions out of the public revenue, in favour of any 
 religious denomination whatever, are purely voluntary and gra- 
 tuitous, and, as such, exclusively under the disposition and control 
 of Government, and revocable at Her Majesty's will and pleasure- 
 Do this, and the power of the purse is effectually guarded. What 
 then remains ? Why, a right of which the exercise agitates all in 
 Scotland, but one which in this colony rests upon a different 
 
 p
 
 2IO ON THE DUTCH REFORMED CHURCH BILL. 
 
 footing, and is not the subject of dispute, the right of patronage. 
 The Governor of this colony now presents to all the vacant con- 
 gregations of the Dutch Reformed Church. He does so, I presume, 
 in virtue of salary which the Colonial Government bestows. Be 
 that as it may, it is proposed to declare, not merely that the synod 
 shall have no power over the public revenue, but also that the 
 Governor for the time being shall possess, and exercise in 
 whatever manner he shall think best, the right of appointing 
 to vacancies in the church. When these things are done, 
 when the assembly is restricted from all interference, as of 
 right, with the public purse, and from all power of excluding 
 ministers properly presented, what more has Government to ask ? 
 Let any man who can, point out any other weak point in order 
 that it also may be guarded. I believe there is none such. The 
 law, when declared in the manner which I have suggested, will be 
 clear and unambiguous, and will place all the rights of Govern- 
 ment which the synod could ever have thought of touching beyond 
 all chance of danger or approach. Now, then, for the people's 
 rights and their perpetual preservation. These also I propose to 
 guard. " Your Ordinance," it may be said, " protects the rights 
 of Government, a thing natural enough when an Attorney-Gene- 
 ral of the Government draws it ; but how are the rights of the 
 laity, civil and religious, to be protected from aggression ?" I ask, 
 in reply, what it is that is required ? Of what nature are the dan- 
 gers to which the lay members of the church are liable ? I can, 
 for the life of me, muster up but three, and we shall take them in 
 their order. The first which I shall notice is connected with the 
 purity and preservaticn of the church itself. " We are Presby- 
 terians, we hold to its existing discipline, to its existing govern- 
 ment, to the Heidelberg Catechism, and to the other authorities 
 which constitute, together with the Bible, the standards of the 
 Dutch Reformed Church. How do we know but that, some fine 
 day or other, the General Assembly, swayed by a spirit of innova- 
 tion, or influenced by an Episcopalian Executive Government 
 may be pleased to declare the Church to be Episcopalian, and to 
 make your friend, Mr. Faurc, or your friend, Dr. Robertson, the
 
 ON THE DUTCH REFORMED CHURCH BILL. 211 
 
 first Bishop ?" The peril is not imminent. But 1 propose to make 
 it impossible, by providing that the Dutch Reformed Church shall 
 be and remain a Presbyterian Church, governed by Consistories, 
 Presbyteries, and a General Assembly, and professing the doc- 
 Brines contained in her present formulas of faith, and that these 
 things no law, rule, or regulation of the Assembly shall have any 
 power to alter or affect. We thus stifle any cry of " Church in 
 danger," a cry which could have no manner of meaning in the case ; 
 for it is just as likely that Table Mountain will take a jump into 
 Table Bay, as that the Dutch Reformed Church will ever forsake 
 its place or principles. Still, however, it is not unseemly, when 
 we are about to recognize a new and separate religious Legislature, 
 to record the fact that their powers are not unlimited, and that, 
 amongst other things, they do not extend over the constitution of 
 the church, or enable them to alter the essential features of either 
 its discipline or doctrine. A provision to this effect has accord- 
 ingly been introduced into the bill. The second of the three in- 
 citements to alarm which I have imagined regards the sanctions by 
 which church laws are to be enforced. " Under cover of religion," 
 it may be urged, " laws will be made affecting my civil rights. Some 
 man is alleged to have broken the seventh or some other command- 
 ment, and thereupon I am summoned to give evidence before the 
 Church Judicatory. What if I don't choose to go ? Is the law of the 
 assembly to send me to gaol ? Or, if I be, myself, involved in 
 some charge of scandal, am I to be condemned by the church 
 court in costs ? and if so, how am I to be forced to pay ?" Now 
 here again, we shall take care to give the amplest possible protec- 
 tion. The regulations of the church do not demand, and will not 
 receive, any temporal sanction whatsoever. It is proposed to 
 declare that no rule or regulation which may, at any time, 
 be made by the General Assembly shall have any direct or in- 
 trinsic power to affect the person or the property of any individual ; 
 that such rules and regulations shall be regarded by the civil 
 courts in like manner as the rules and regulations of a merely 
 voluntary association, and that they can only come to affect civil 
 rights through the operation of the common law, when they have
 
 212 ON THE DUTCH REFORMED CHURCH BILL. 
 
 been subscribed to or adopted in such a manner as to render any 
 particular provision which they may contain, involving a civil 
 obligation, binding and effectual in the way of an express or 
 implied contract. A section embodying these principles forms pan 
 of the proposed Ordinance. The General Assembly, therefore, can 
 touch no man's person by any of its rules, nor take any man's 
 money, except his who has agreed to pay it. Limited in this 
 way, why, I ask, may not the church establish such regula- 
 tions as it thinks proper ? Every society in the world has an 
 inherent right to prescribe its own conditions of membership, 
 its own rules and regulations, and the penalties for all transgres- 
 sions. All people who agree to these conditions are bound by these 
 conditions. This is a principle of all voluntary societies from the 
 highest to the lowest, and it would be monstrous to deny to a 
 Christian church what you will grant to a convivial club. I mean 
 no disrespect to the Dutch Reformed Church, quite the reverse, 
 but in a legal point of view I should regard her rules and regulations 
 as I would the rules and regulations of the South African Club. If 
 this society forms its laws, and provides that every member who- 
 spits in a certain room shall forfeit sixpence, and every member 
 smoking in a certain other room shall pay a shilling, then, if these 
 laws are voluntarily adopted, and afterwards the party so adopting 
 them spits or smokes in the forbidden place, I am of opinion that 
 an action lies, because that party has, in fact, entered into a contract 
 and has broken that contract. Many rules and 'regulations of the 
 Dutch Reformed, and every other church, may bind individuals 
 upon the principle just illustrated. But here is no interference with 
 civil rights. Far from it. It is merely allowing men to enter volun- 
 tarily into such engagements as they think proper, and holding 
 them to their engagements. It is merely saying that the laws of 
 the church, or some of them, may be so framed and so adopted as 
 to amount to an express obligation to pay a certain sum of money 
 written out at full length, and signed with the party's name. I 
 have now adverted to two of the points on which it is intended to 
 protect the people's rights. But, in truth, it is next to farcical to. 
 talk of such protection, or to deem such protection necessary to be.
 
 ON THE DUTCH REFORMED CHURCH BILL. 
 
 given. Be well assured that the rights of the laity are quite as safe 
 with the synod, constituted as it is, and as it always must be, as 
 with either of the councils belonging to the Government of this 
 colony, in one of which there is not a single member of the Dutch 
 Reformed Church, and in the other but a small minority. Still 
 what we propose to do will do no harm, and in addition to what I 
 have already explained, one other point remains to be secured. It 
 is expedient, indeed essential, that the influence of the laity should 
 always make itself felt in the supreme church court, and that no de- 
 gree of clerical management should ever be able to alter the propor- 
 tions of ministers and elders of which the General Assembly is now 
 composed; and in order to secure this object I propose to enact that a 
 number of laymen, equal to the number of clergymen, should at all 
 times be lawfully empowered to sit, deliberate, and vote, upon every 
 question submitted for the consideration of the church. Now, 
 when the public purse has been protected ; when the Governor's 
 patronage has been preserved ; when the discipline and doctrine 
 of the church have been established ; when civil rights have been 
 removed beyond the reach of any aggression ; and when the balance 
 of lay and clerical power in the assembly has been fixed for ever, 
 how is it possible for the church to go astray ? What is left for the 
 synod except the free and unrestricted power of legislating, within 
 the limits prescribed, for its own internal government, the power of 
 doing that for themselves which nobody but themselves can do as it 
 should be done ? Judging from the nature of the remarks which I 
 have offered, it might appear that the most convenient course to be 
 adopted would have been to repeal the regulations of De Mist, 
 determine the points upon which the synod should not have 
 power to innovate, and then leave that reverend body to frame 
 and promulgate, whenever it should think proper so to do, its 
 code of discipline. And were the synod now assembled, or were 
 it speedily to meet again, such, unquestionably, is the course which 
 I should have recommended. But your Excellency is aware that 
 the late synod laboured long and anxiously in the work of 
 ecclesiastical legislation, and produced a comprehensive body of 
 rules which, under the impression that it would in some way or
 
 214 ON THE DUTCH REFORMED CHURCH BILL. 
 
 other receive the necessary sanction, they sent in to Government ; 
 and under those circumstances, and knowing as we do the mind of 
 the church upon the subject, I think we ought not to post- 
 pone, for nearly four years, the enjoyment of the advantages 
 which the result of the labour and learning of the synod promises 
 to secure to the members of the church. The truth is, that 
 new regulations are urgently required. I therefore propose 
 that we should receive the rules and regulations as framed by the 
 assembly, and setting them out in a schedule to the present Ordi- 
 nance, declare them to be the rules and regulations, for the time 
 being, of the Dutch Reformed Church, giving the synod full power, 
 from time to time, to add to, alter, or annul them, as it should con- 
 sider necessary. By this means the large, influential, and respect- 
 able denomination of which I speak, will obtain the benefit of im- 
 mediate legislation, and that legislation will be, in fact, though not 
 in form, the legislation of the church itself. It is right to 
 observe that, of the rules and regulations as originally trans- 
 mitted by the synod, a few have been struck out. The ex- 
 cluded clauses had reference to money matters, and were shaped 
 in a manner which seemed somewhat inconsistent with the 
 principle upon which pecuniary assistance is to be given by 
 Government, as that principle has already been explained. But 
 the synod never meant, in those omitted regulations, to claim any 
 inherent power over the public revenue. So far from it, that they 
 carefully appended to all these monetary clauses a reference to the 
 article of De Mist from which they were taken, in order to show 
 that they recognized, in the matter, the unlimited authority of 
 Government, and that they only introduced those provisions into 
 their code, because it was considered that that code, when duly 
 sanctioned, would wholly supersede De Mist's church order, and 
 because it would, therefore, become necessary to let the matters 
 in question take the same place in the new regulations which 
 they had ocupied in the old. It is not intended, assuredly 
 not, to withdraw from that great school for grown up children, 
 the Dutch Reformed Church, the aid which it has hitherto, 
 received from Government. Everything will, of course, go on,
 
 ON THE DUTCH REFORMED CHURCH BILL. 21 5 
 
 as formerly. But as the principle of absolute independence in re- 
 gard to that aid is proposed to be kept up in the case of the Dutch 
 Reformed Church, as in that of every other religious denomination 
 in the colony, and as the application of that principle would 
 render it inconvenient to introduce pecuniary details, either into 
 the Ordinance of this Council, or the regulations of the church, I 
 should suggest that a Government advertisement might properly be 
 issued, concurrently with the promulgation of whatever Ordinance 
 may be passed, reciting that the repeal of De Mist's regulations 
 had rendered it expedient to publish, for general intormation, the 
 nature and the amount of the pecuniary assistance hitherto granted 
 by Government, and still proposed to be continued, to the Dutch 
 Reformed Church in this colony. Any intimation of the des- 
 cription now adverted to would supply the place of some of 
 the matters mentioned by De Mist, and would be sufficient to 
 enable the church to draw up any of her own domestic rules and 
 regulations which may chance to be dependent upon the nature 
 and amount of the aid which she has reason to expect from Govern- 
 ment. By adopting the course suggested, you will, as it appears to 
 me, consult the convenience both of the Government and the 
 church. Repeal the unsuitable regulations of De Mist, declare 
 anew certain of their sound and just principles, leave the assem- 
 bly, under some restrictions, to frame its own laws, and announce, 
 in a Government advertisement, the nature and amount of the 
 pecuniary contribution which it is contemplated to continue, and 
 matters will, I conceive, be placed upon their proper footing. 
 The Civil Government and the church will each have their pecu- 
 liar rights and functions, and there cannot well arise any difficulty 
 or dispute. Political commissioners will cease to attend at the 
 meetings of the synod. For to what useful end would you perpetuate 
 an institution of which the original and only purpose will have al- 
 together ceased ? Why send commissioners to protect rights which, 
 by law, cannot be assailed ? It does appear to me that to persevere 
 in the course of appointing political commissioners could serve no 
 earthly end whatever, except to provoke, or at least give 
 room for, controversy and unpleasantness. I refer, unwillingl) ,
 
 2l6 ON THE DUTCH REFORMED CHURCH BILL. 
 
 to by-gone disagreements. But it is notorious that differences of 
 opinion have before now excited a degree of warmth in the synod, 
 which, considering the character and functions of the parties en- 
 gaged, we should not unnecessarily risk again. Of the political 
 commissioners I think and desire to speak with sincere respect. 
 One gentleman who had acted in that capacity on several previous 
 occasions, but who, at his own desire, was not appointed at the last 
 meeting, I mean Sir John Truter, is probably one of the ablest 
 men that this colony has produced. The character and standing of 
 Messrs. Berrange and Denyssen, entitle them also to great con- 
 sideration. And I will say, that in undertaking duties altogether 
 gratuitous, always laborious, often ungracious, impelled by a desire 
 to serve the true interests of the church to which themselves and 
 their families belong, they have acted in a manner which entitles 
 them to the thanks of the public, the Government, and the church 
 itself. In anything I have said, and in anything I have proposed, I 
 shall be sadly misconceived if I am thought to have evinced a disposi- 
 tion to throw the political commissioners overboard, or to disparage 
 their well intended efforts. Upon the other hand, justice requires 
 that I should state my sentiments respecting the spirit and proceed- 
 ings of the clergy. And I must declare, with sincerity and truth, 
 that, whatever may be charged upon churchmen generally, however 
 much they be said to be arrogant, obstinate, grasping, unrea- 
 sonable, I have found nothing, in the course of my communica- 
 tions with the ministers of the Dutch Reformed Church relative 
 to church matters, which was not characterized by an unaffected 
 spirit of conciliation, and a willingness to agree to any measures 
 which would allow the church peaceably and tranquilly to 
 perform the work which is given her to do. Amongst these 
 ministers I would have you send political commissioners no more. 
 I do not know that the state and history of political commission- 
 ership in Scotland tend to exhibit the institution in a very attrac- 
 tive shape. Her Majesty deputes, now the Marquess of Breadal- 
 bane and now the Marquess of Bute, to be a symbol of her presence 
 and protection to the General Assembly. And what, all the time, 
 are the churchmen of the General Assembly doing ? Why, Lord
 
 ON THE INSOLVENT LAW* 
 
 Brougham declares that they are guilty of high treason, conspiring 
 together to subvert and overturn the law and constitution of the 
 land. Bad enough no doubt ; but still there sits Her Majesty's 
 Lord High Commissioner, looking down upon the traitors, hearken- 
 ing to their treason, giving his countenance to their deliberations, 
 but not authorized or able, even were he so inclined, to stop or 
 interfere with their treasonable proceedings. How the dignity 
 of the Crown is consulted by sending the Queen's Representative to 
 sit amidst a set. of rampant theologians whom he can neither 
 check nor control, may be discovered by Scottish ingenuity, but is 
 totally beyond my Irish comprehension. But coming back to the 
 bill which I now lay upon the table, I have again to express my 
 hope that it will meet with the concurrence of the Council. I be- 
 lieve that its simple principles are sound principles ; and I have 
 the gratification of stating that my friend, the Rev. Mr. Faure, with 
 whom I have talked the matter over, and who, I need not inform 
 your Excellency, is a man of great weight and influence among 
 his brethren of the Dutch Reformed Church, is of opinion that 
 what I have proposed, with an anxious desire to meet the views of 
 all reasonable men, will meet the full concurrence of the body to 
 which he belongs. Under these circumstances, and if the church 
 be content, I thiuk this Council should be content also, and that 
 no one should hesitate to support a measure which proposes to place 
 the affairs of a most important religious community upon a satisfac- 
 tory foundation. 
 
 ON THE INSOLVENT LAW. 
 
 {Legislative Council, July 31, 1843.] 
 
 The ATTORNEY-GENERAL begged to lay on the table for the per- 
 usal of members and they were well worthy perusal some papers 
 containing observations relative to the Insolvent Law, which had
 
 2l8 ON THE INSOLVENT LAW. 
 
 been received since the dissolution of the Insolvent Law Committee, 
 One was a valuable report on the subject by the Master of the 
 Supreme Court ; another he had obtained by personal solicitation 
 from his intelligent friend, Mr. Eaton, who had had much experience 
 in the administration of insolvent estates ; and, though last not least, 
 were some observations by Mr. Justice Menzies addressed to His 
 Excellency, with reference to the report of the Insolvent Law 
 Committee. He considered it desirable that these papers should 
 be generally circulated and read. 
 
 ON THE INSOLVENT LAW. 
 
 [Legislative Council, September 4, 1843.] 
 
 The ATTORNEY-GRNERAL said : In regard to the insolvent law, 
 5t appears to me that it would be perfectly unnecessary upon my 
 part to enter now upon any general observations relative to the 
 nature of the measure now before the Council ; because as such a> 
 measure necessarily involves a multifarious mass of various matters, 
 which would render it quite impossible, in one address, to do justice 
 to the several topics therein embraced, nothing but confusion could 
 arise from the attempt. And as the public are already pretty well 
 aware, from the report of the committee, from the observations, 
 of Mr. Eaton, and the remarks of Mr. Justice Menzies and the 
 Master, of the general merits of the question, I think it will be ex- 
 pedient to proceed to read the bill, clause by clause, when I shall 
 take the opportunity of making such remarks as occur to me illus- 
 trative of such sections as seem to require defence or explanation. 
 Having received, on Saturday last, in a printed shape, some addi- 
 tional observations by Mr. Justice Menzies, which his anxiety to- 
 promote the public interest induced him to throw off" in the midst 
 of his preparations for leaving town on circuit, I wish to have an 
 opportunity of comparing those observations clause by clause with 
 the draft Ordinance ; and having also been engaged for six hours-
 
 ON THE INSOLVENT LAW. 2 1 9- 
 
 on Saturday with the committee of the Commercial Exchange, irt 
 going over various points well worthy of consideration, it appears to 
 me that your Excellency and the Council may rest satisfied with 
 reading to-day only the first and second clauses, relative to the cessia 
 bonorum, and then adjourn for a few days. By that means I shall 
 be prepared at the next meeting to say which of the suggestion; of 
 Mr. Justice Menzies I should wish this Council to adopt, and which 
 of them there seems to be good reason for rejecting. Having be- 
 fore us the suggestions of so able a man as the learned judge un- 
 questionably is, your Excellency will doubtless agree with me that 
 we should not proceed to legislate on the subject without taking 
 every advantage of his views. My idea, therefore, is, that we 
 should simply read the first and second sections, and adjourn. 
 [After reading the clauses, the learned gentleman proceeded] : 
 Your Excellency and the Council will perceive by the preamble of 
 the bill and the first section that the cessio bonorum is proposed to 
 be abolished. With reference to this, the last printed notes of 
 Mr. Justice Menzies speak as follows : 
 
 " Before the benefit of the cessio bonorum is abolished, some 
 grounds for doing so should be established. What prejudicial con- 
 sequences have resulted from its existence ? It has not been 
 abolished in Scotland, although a Bankrupt Act has long formed 
 part of the law of that country. It was in force in this colony at 
 the same time that the office of sequestrator existed. I am of 
 opinion that it would be much better if many of the small estates- 
 which are now surrendered and placed under sequestration, were 
 administered and distributed by the creditors under a cessio bono- 
 rum, than by the machinery of the Ordinance No. 64." 
 Now I quite concur with the learned judge, that before the cessio> 
 bonorum, or any other part of the law, is abolished, some grounds. 
 for doing so should be established ; and in this instance that ground 
 will, I think, be very easily established. Let us see, then, what 
 the cessio bonorum is. We snail refer, first, to the principle of the 
 thing, and afterwards to the degree in which it is recognized ia 
 England and in Scotland, the analogy of Scotland being especially 
 referred to by the learned judge. The cessio bonorum was originally,.
 
 22O ON THE INSOLVENT LAW. 
 
 it is presumed, a benefit or favour, introduced into the Roman Law, 
 so long ago as the time of Julius Caesar, being intended by that 
 eminent conqueror, orator, and jurist, for the purpose of relieving 
 the democratic party (not that I attribute the learned judge's 
 predilection for the cessio bonorum to any democratic bias whatever) 
 and the object was, to mitigate the previous rigour of the law 
 which condemned the debtor who could not pay to perpetual im- 
 prisonment. It was meant in favour of personal liberty, and in 
 order that the debtor who had honestly become unable to pay his 
 debts, and to whom the creditor could not justly impute fraud, 
 should not be everlastingly lost to society for the purpose of glutting 
 the vindictiveness of his prosecutor. The principle of the boon was, 
 that the debtor should cede to his creditors all his property, and that 
 he should then receive from the judge a protection from arrest. Turn- 
 ing to England, we find that the common law of that country did 
 not permit a freeman to be imprisoned for debt ; but that, partly 
 by statute, and partly by judicial determination, it afterwards came 
 to pass that the person of the debtor might., in almost all actions, be 
 taken for his debt, and committed to what was, in theory at least, 
 perpetual incarceration. When commerce began to rise upon the 
 ruins of the feudal system, after the discovery of printing, and the 
 agitation of the Reformation, it was found that the old system 
 would not suit the new circumstances ; and accordingly, in the 
 reign of Henry VIII, the first English Bankrupt Act was pass- 
 -ed. But the operation of the bankrupt system has always been 
 restricted to traders and dealers, with regard to whom the object 
 has been to obtain for the creditor the largest dividend which the 
 estate can yield, and to allow the debtor to get his discharge, in 
 order to apply his industry afresh, and begin the world again. It 
 so happens, however, that until the reign of George II, no provi- 
 sion was made by law for the relief from imprisonment of that 
 large class of persons who were excluded from the operation of the 
 bankrupt laws ; namely, persons not in trade, and traders of a 
 petty sort. In that reign a measure was introduced and carried, 
 which was the origin of the insolvent system of England ; and 
 which, with numerous additions and amendments, constitutes the
 
 ON THE INSOLVENT LAW. 221 
 
 present law. This insolvent system is virtually the cessio bonorum- 
 of the civil law, was confessedly borrowed from it, and has the 
 same leading incidents, namely, the surrender of all property, 
 the refusal of any assistance to the fraudulent debtor, and the grant- 
 ing to the well-conducted debtor a personal protection, which 
 still, however, leaves his after-acquired property available. Advert- 
 ing now to Scotland, it must certainly be admitted that the 
 sequestration system of that country did not operate so as to abol- 
 ish the cessio bonorum, which continued in existence, and continues 
 to this day. Scotland, it may be said, which, being economical, 
 never gives two things where one will do, gives both the Sequestra- 
 tion Acts and the cessio bonorum ; and why should you refuse to Jo 
 the same ? The reason is, because sequestration in Scotland is 
 different in principle from the insolvent law of this colony. The 
 learned judge often says from the bench that he has forgotten his 
 old Scotch law ; and I presume that he did not advert, when speak- 
 ing of Scotland, to the fact that the sequestration of Scotland, rest- 
 ing upon the same principle as the bankrupt law of England, is 
 confined to merchants and manufacturers. It is therefore clear 
 that a remedy which, like the cessio bonorum, is general in its opera- 
 tion, and embraces debtors of every class, is not necessarily or 
 naturally superseded by the sequestration system. Now, the insol- 
 vent law of this colony wants the great principle upon which the 
 retention of the cessio in Scotland can be defended ; for the insol- 
 vent law embraces equally every variety of debtor, whether he be 
 engaged in trade or not. Under these circumstances, it appears to 
 me to be inconsistent to have two perfectly concurrent remedies 
 for the very same state of things. It is a rule in good philosophy 
 we need not quote Newton for its truth never to have recourse to 
 two modes of doing what one is sufficient to accomplish. If the cessio 
 bonorum is a better system than an insolvent law, pass no insolvent 
 law at all. If the insolvent law is a better system than the cessio 
 bonorum, let the cessio bonorum sink. But the objection which I enter- 
 tain to the continuance of the system of cesiio does not rest upon such 
 speculative reasoning. I have resorted for information and advice to 
 persons practically acquainted with the working of the two systems,
 
 ON THE INSOLVENT LAW. 
 
 and those persons, one and all, assure me that the insolvent system 
 of working an insolvent estate, is believed by all creditors to be 
 much more open, searching, safe, and satisfactory ; that the machin- 
 ery for working the cessio bonorum, if it have anything that can be 
 called such, is very little understood ; and that the result is suppos- 
 ed to be, that when a debtor applies for cession, it is the shortest 
 Avay to take whatever he professes himself to be able to give, and 
 give up the pursuit. Under these circumstances, upon which I 
 ishall not dwell, I submit that the Council can see no sufficient reason 
 for continuing the cessio. An equivalent provision, however, is intro- 
 duced into the draft, and made a part of the insolvent law. By the 
 loist section of the draft, an insolvent, whose estate has been 
 -administered under the Ordinance, may apply for a decree of 
 court, declaring his person free of arrest, which, under the 
 circumstances stated in the clause, the court shall be at liberty to 
 grant or to withhold. By this means the cessio bonorum is not made 
 the means of giving the Ordinance the go-by, coming into court 
 with a petition, and having its merits disposed of before the credi- 
 tors have the means of ascertaining deliberately or sufficiently the 
 true condition of the estate. The debtor must pass through the 
 ordeal of the sequestration. But when he has passed the ordeal 
 unharmed, the court can make a decree which is, in fact, though 
 not in form, the same as the cessio bonorum. It is not, as has this 
 moment been suggested to me from behind, a change in the 
 principle, but merely an alteration in the practice. For my own 
 part, from some recent indications of a preference for the cession, 
 as evinced by debtors generally, I suspect that if you retain that 
 system, you will have few voluntary surrenders of estates, parties 
 being likely, in my opinion, to consider that, in that way, they 
 can get through their difficulties with far greater ease. 
 
 [Legislative Council, September 4, 1843.] 
 
 On section 35 being read, 
 
 The ATTORNEY-GENERAL said : As this is the first clause which
 
 ON THE INSOLVENT LAW. 
 
 22 3 
 
 proposes to regulate the ranking of joint and separate debts, it will 
 be necessary, in consequence of the position in which the matter 
 stands before the Council, to explain briefly the nature of the 
 question. Your Excellency sees that when a partnership is engaged 
 in business, there will always, or almost always, be a partnership 
 estate, in which all the partners are jointly interested, and a sepa- 
 rate estate, belonging to each partner composing the firm. Now we 
 frequently find that the same state of things which brings the 
 partnership estate into insolvency, affects the separate estates of the 
 partners as well, and renders them insolvent too. Then the 
 question is, when you have got both the estates of the partnership, 
 and the separate estates of the partners duly sequestrated, in 
 what position do the two distinct classes of creditors stand with 
 regard to each other, and to the two distinct funds ? Upon this 
 the systems of administration pursued and recommended arc not 
 uniform. Three principal rules have been adopted or proposed 
 for the purpose of settling what should be done under the cir- 
 cumstances which I have stated. One of these rules is the English 
 rule, the second rule is the Scotch rule, and the third rule is com- 
 monly called Christian's rule, by reason that it w as fi rst proposed 
 by Mr. Christian, the writer of an able book on bankruptcy. The 
 English rule determines that when a firm is bankrupt and its several 
 members bankrupt too, you are to take the assets of the joint estate 
 and divide them among the joint creditors as far as they will go, 
 and then each joint creditor, in so far as he has not been paid out 
 of the assets of the firm, is entitled to go against the separate assets 
 of the partners. But while allowing him to resort to the separate 
 assets, the law of England fixes the position in which he shall stand. 
 ft tells the joint creditor that when he comes to the separate 
 estate of any partner he must make his bow, and stand altogether 
 aside, until the separate creditors of that partner shall have received 
 satisfaction, that if there be a surplus he has a right to share in that 
 surplus, but that if there be not enough to satisfy in full the separ- 
 ate creditors, he must rest content with having exhausted the 
 assets of the joint estate, and claim no share of the separate assets, 
 n-hich are to be devoted exclusively to the satisfaction of the
 
 224 
 
 separate debts. Upon the other hand, the law of England will 
 never allow the separate creditor of a partner' to come into- 
 competition with the creditors of the firm in regard to the 
 distribution of the assets of that firm. It is only after the 
 company creditors have been paid in full that the separate creditors 
 of any partner can come in for their share of any surplus of the 
 joint estate which may be yielded to the partner whose creditors 
 they are, upon the liquidation of the partnership estate. The 
 Scottish rule differs from the English. It declares that when a 
 company and the partners of that company are concurrently 
 sequestrated, the creditors of the company shall first divide amongt 
 them all the company's property. So far it agrees with the 
 law of England. But it goes farther, and declares that after 
 the company creditors have exhausted all the company's pro- 
 perty, they are entitled to come in equally with the separate cre- 
 ditors of the partners for a share in the separate estate, in so- 
 far as they are left unsatisfied by the distribution of the insol- 
 vent estate. This, it will be perceived, gives the company cre- 
 ditor a great advantage. If a company fail for ^100,000 with 
 assets amounting to ^50,000, or ten shillings in the pound, every 
 company creditor may prove in concurrence and competition . with 
 the separate creditor of each separate partner for one-half of his 
 original debt, and draw a dividend accordingly. I have thus 
 explained, I hope distinctly, the English rule and the Scotch rule. 
 The rule of Mr. Christian, which has certainly some apparent 
 equity, and which seems to have captivated Mr. Justice Burton, 
 who, in his work upon the insolvent law, obviously views it with 
 an eye of favour, would provide that whenever the joint estate and 
 the separate estates were concurrently insolvent, each partner 
 should take over his proportion of the company's assets as his 
 separate assets, and his proportion of the company's debts as his 
 separate debts, add the assets so obtained to his other assets, and 
 the debts so derived to his other debts, and then proceed to pay 
 both sorts of debts out of both sorts of assets, without any distinc- 
 tion, as far as the fund will go. This rule, it is clear, is very 
 different indeed from either the Scotch rule or the English. That
 
 ON THE INSOLVENT LAW. 225 
 
 it presents some appearance of equity, I have already admitted. 
 But I am saved the trouble of showing that the appearance is delu- 
 sive, having the distinct authority of Mr. Justice Menzies for pro- 
 nouncing its principle unsound; so that, no matter what other rule 
 should be adopted, Mr. Christian's rule is out of the case. In his 
 original observations upon the report of the committee of this 
 Council, the learned judge expresses himself thus: 
 
 "I am of opinion that Mr. Christian's rule of ranking is founded 
 on no sound legal principle, but solely on a fancied ground of ex- 
 pediency which does not exist, because if adopted it would, as is 
 most justly remarked by the committee, often, or rather constantly, 
 in turn, work injustice to each class of creditors." 
 Well, then, as time and breath need not be uselessly expended, 
 I think we may throw aside Mr. Christian's rule altogether, 
 and assume that the point to be determined is, whether the rule 
 of England or the rule Scotland be the preferable. Mr. Menzies 
 is strongly in favour of the Scotch. In another part of the same 
 observations to which I have already adverted, the learned judge 
 declares : 
 
 " Were it not that the committee have stated that the English 
 rules is, in their opinion, ' founded upon a sound and equitable prin- 
 ciple,' I should have been led to conclude that the committee pro- 
 posed the adoption of the English rule in this colony, merely because 
 it was the English rule, and without regard to the principle upon 
 which it was founded, or whether it was founded on any principle 
 at all. And I cannot but regret that the committee have not more 
 clearly set forth and defined the principle on which they have con- 
 sidered this branch of the English rule to be founded, and given 
 their reasons for maintaining that it is calculated, in a majority of 
 instances, to give to each body of creditors that particular fund with 
 reference to which they must be taken to have dealt." 
 Under these circumstances, it is fit to say that the point was much 
 discussed by the committee (for I, myself, I remember had doubts 
 upon the subject), and it was not until after due consideration, and 
 communicating with mercantile men, that we came unanimously 
 to the conclusion that the English rule was more equitable than
 
 226 ON THE INSOLVENT LAW. 
 
 the Scotch. It was not chosen because it was the English rule, as 
 the judge, by italicising his remark to that effect, obviously suspects. 
 Not, Sir, but that, connected commercially as this colony is with 
 England, an English rule upon a point of mercantile law has a 
 strong recommendation in the mere fact that it is the English rule, 
 because it is desirable that our correspondents in that country should 
 as much as possible understand the laws under which we live, and 
 by which their property coming here may be administered. And 
 in so far as our commercial intercourse with America is concerned, 
 the same sort of recommendation exists in the present case, in refer- 
 rence to the rule of ranking, which this Ordinance proposes. By an 
 Act of Congress, of August 1841, which my friend the American 
 Consul kindly sent to me to make whatever use of it I could (an Act, 
 by the bye, of which, in these repudiating times, the title is extremely 
 ominous, styled as it is " An Act to establish a Uniform System of 
 Bankruptcy throughout the United States], provision is made for the 
 same rule of ranking joint and separate debts as that which is em- 
 bodied in the bill now before this Council. But I do not propose 
 to rest the questions upon those presumptive proofs of equity. Let 
 us put a case or two, and see how the respective rules would work. 
 It is no uncommon thing anywhere, and is well known in this 
 colony, for a merchant to carry on business separately in his own 
 name, and for the same man to be a partner in a firm carrying on 
 some other business. The firm of George Wilson Prince & Co., 
 for instance, consists, or consisted, amongst others, of George Wilson 
 Prince and Harrison Watson. Now we may suppose Hariison 
 Watson to carry on business in his own name and on his separate 
 account 
 
 Mr. Ross : Which he does. 
 
 ATTORNEY-GENERAL : As a member of another firm he does so ; 
 and he might, as readily, do so on his own separate account. Now 
 in argument all things are supposable ; and I shall, therefore, 
 make the not very probable supposition that George Wilson Prince 
 & Co. were bankrupts, and that Harrison Watson was bankrupt as 
 well. The English rule, under such circumstances, would say, 
 let Prince & Co.'s assets go to their creditors ; and Harrison Watson's
 
 ON THE INSOLVENT LAW. 
 
 227 
 
 assets go to his creditors, and if there be in either estate a surplus, 
 let the creditors of the other estate come in, but not otherwise. 
 But if it so happened that Mr. Prince and Mr. Watson were 
 caught up in some whirlwind, which is unlikely, for both are, in 
 every sense, substantial men, and dropped in Glasgow, quite a 
 different principle would be applied to the regulation of their estates. 
 There, the creditors of Prince & Co. would first divide all Prince 
 & Co.'s property, and then come in jointly with Mr. Watson's 
 creditors to divide his property as well. Observe, Mr. Watson's 
 creditors are never to divide any part of Prince & Co.'s property. 
 That is all to go to the creditors of the firm. It is equitable, then, 
 that the separate creditors of Watson, who have dealt with him in 
 reference to his separate estate, are to have that separate estate laid 
 open to Prince & Co.'s creditors, and to have their dividends dimin- 
 ished by the share which the strangers are to take ? We say not. We 
 say, " Give Prince & Co.'s creditors,'if necessary, all Prince & Co.'s 
 assets. Upon the other hand, give Harrison Watson's creditors, if 
 necessary, all Harrison Watson's assets. If there be a surplus in 
 either estate, give it to the deficient creditors of the other. But 
 don't give to the company creditors an inequitable preference." 
 I have stated the case in which the partner carries on trade 
 on his separate account. We shall now suppose the case in 
 which the partner carries on no separate trade, but yet has 
 separate creditors, and see how the Scotch rule would work. 
 Should then the Cape of Good Hope Bank become insolvent, which 
 with my hon. friend (Mr. Ebden) as its chairman, is very improbable, 
 and I, as the holder of some shares, should become insolvent too the 
 creditors of the bank, after valuing their dividend out of its assets 
 would prove for their respective balances upon my estate in concur- 
 rence with, and it might be to the virtual exclusion of, my butcher, 
 my baker, and all the other persons who have given me credit 
 in my individual capacity. I think this is not right. I think the 
 bank creditors have, in justice, no claim to be distinguished so 
 advantageously. Let my separate creditors be first satisfied, and, if 
 there be a surplus, let it go to make good as far as it will reach the 
 engagements of the bank. But they have no right to come in com- 
 
 Q 2
 
 228 ON THE INSOLVENT LAW. 
 
 petition with my personal creditors. Upon the whole, it does 
 appear to me that the principle of the English rule is not so very 
 indefensible ; and that if there shall chance to be carried on the 
 wings of the Press to the learned judge, as he is now enjoying the 
 luxuries of circuit, some account of what I have been saying, it 
 will prove a great additional gratification to him to find that some- 
 thing may, after all, be said in favour of a rule which appeared to 
 him to rest upon no principle at all. But he is clearly right 
 in his reasoning, up to a certain point. ," Do you deny," he 
 may ask, "that the creditors of a bankrupt company may come 
 upon the partners of that company, the latter remaining sol- 
 vent ?" I deny no such thing. It is the law, and I admit 
 that. "Why then," he will further ask, "should the bankruptcy 
 of the separate estate vary either the principle or the liability ?" 
 Sir, it varies it, in my mind, just because the separate estates are 
 bankrupt. So long as they remain unsequestrated it must be held 
 that they are solvent ; that there is enough for all ; that there is 
 no conflict of creditors about the distribution of a deficient fund ; 
 that all creditors, as well joint as separate, can be paid in full. But 
 where the separate estates are actually surrendered a new state of 
 things arises. You have, then, proof that there is a breaking up, 
 that the estate is shipwrecked, and that the question comes to be, 
 since all cannot be saved, who have a right to get first upon the 
 plank. In other words, whether, when the creditors are in such 
 a condition that one must be taken and the other left, you should 
 not leave each description of estate to its own particular creditors. 
 The learned judge in his late remarks considers that to adopt the 
 rule embodied in the bill will be to repeal the existing law of the 
 colony. It is probable that he is right in this opinion. But from 
 the meagre way in which the title " society " is, for the most part, 
 treated in such civil law books as I have consulted, I should hesitate 
 myself to pronounce a decided judgment. Mr. Justice Burton evi- 
 dently considers the point as not settled ; and I believe it may be 
 asserted that we cannot point to any case which has happened in the 
 colony in which the Scottish rule of ranking has been acted on. Be 
 that, however, as it may, we can change the law if it seem fitting so
 
 ON THE INSOLVENT LAW. 229 
 
 to do. And that it is fitting to make the law what the bill now be- 
 fore the Council proposes to make it, I have already advanced some 
 reasons for believing. I shall now proceed to call a witness to give 
 evidence upon the point ; and he shall be one above all exception, for 
 he is a Scotchman, and not merely a Scotchman but a Scotch 
 lawyer, and not merely a Scotch lawyer, but a most learned and 
 liberal jurist, to whom the principles of different systems are 
 familiar, and who is, probably, better qualified than any other 
 writer who could be named to offer an opinion upon their respec- 
 tive merits. I allude to Mr. Bell, whose work upon commercial 
 law is, perhaps, the most successful effort, in the way of legal 
 literature, that has anywhere been made in the course of many 
 years. I shall now read from his 2d volume, at page 662 of the 
 5th edition, his estimate of the Scottish rule of ranking, as con- 
 trasted with the English ; and I hope the passage will be tran- 
 scribed for the consolation of the learned judge, who visibly 
 considers that what we propose to do is a very mischievous and 
 unjustifiable thing : 
 
 " The Scottish rule, as already observed, seems to proceed 
 correctly enough on the strict principles of law ; the English model- 
 led on the principles of equity, seems to be more just and reason- 
 able ; since persons frequently deal to a great extent as sole traders, 
 and have credit accordingly, while they are altogether unknown 
 as partners of a company. The Scottish rule seems more con- 
 sistent with the policy of an age in which little capital is 
 employed in trade, and in which all the facilities and encourage- 
 ment for the investing of the funds of moneyed men in com- 
 mercial speculations are highly beneficial ; the English more 
 natural to a country which has made great advances in com- 
 merce, in which large capitals are freely embarked in all kinds of 
 trading enterprise, and in which the necessity of encouraging this 
 sort of investment is not sufficiently strong to pervert the natural 
 suggestions of equity." 
 
 Now, Sir, it may be very true that commerce in this colony has 
 not reached that point that Mr. Bell alludes to in regard to England. 
 But still there is not, surely, any temptation to encourage partner-
 
 230 ON THE INSOLVENT LAW. 
 
 ships sufficiently strong to pervert, as the author says, the " natural 
 suggestions of equity." We propose to follow those natural sugges- 
 tions. In doing so we shall, I think, do well ; for the more I have 
 reflected upon the point, the more have I been convinced that in 
 preferring the English rule of ranking joint and separate creditors 
 to the rule which obtains in Scotland, we are laying down the just 
 est principle, and that which ought to be established. 
 
 [Legislative Council, September u, 1843.] 
 
 SEQUESTRATION OF JOINT AND SEPARATE ESTATES. 
 
 On the second section being read, 
 
 The ATTORNEY- GENERAL said, that it had been just suggested to 
 him to give the Supreme and Circuit Courts the power of accepting 
 the surrender of estates, and of ordering their sequestration. He 
 therefore proposed to add the necessary words here, and elsewhere, 
 for that purpose. He farther observed, that Mr. Justice Menzies 
 was of opinion that the object of the proviso in this section relative 
 to persons administering the estates of others who are absent from 
 the colony, would be better answered by including them in section 
 3, together with persons administering the estates of persons legally 
 or actually incapable of administering their own. He (the Attorney- 
 General) could not concur in this. Such an arrangement would, he 
 conceived, turn the agent of the absent man into the insolvent, 
 which was not the intention. When the estate of a dead man was 
 surrendered, who was the insolvent ? Not, certainly, the dead man 
 but the living administrator. Inconveniences might result from 
 accepting a surrender from the agent, as such agent, making him 
 the insolvent, as if he were an executor or curator. The clause 
 had first been drawn in the manner now recommended by the 
 learned judge, but, in correcting the proofs, it had appeared advis- 
 able to place the matter on its present footing.
 
 ON THE INSOLVENT LAW. 23! 
 
 CREDITORS LIABILITY FOR COSTS. 
 
 On section 8 being read, 
 
 The ATTORNEY-GENERAL pointed out the difference between this 
 -section and the corresponding section of Ordinance No. 64, and de- 
 fended the several amendments. He had recently known of a case 
 in which a man proved a debt of 60, got nothing at all, and was 
 then compelled to contribute out of his pocket 4 to cover the 
 trustee's remuneration. The present section would, he considered, 
 place matters on a better footing. Mr. Justice Menzies had put 
 the case of a trustee recovering a large dividend for the creditors, 
 and then unsuccessfully attempting to recover more, and had asked 
 why the creditors should not contribute, from what they had re- 
 ceived, in order to remunerate the trustee for the trouble he had 
 taken ? This was an extreme case, and one not likely to occur. 
 Every trustee deducted his remuneration on the face of his distribu- 
 tion account. And with regard to the unsuccessful trouble, the 
 trustee should take care to be indemnified by some one or more 
 ;amongst the creditors, before he took it. 
 
 ADMINISTRATION OF ESTATES. 
 
 On the pth section being read, 
 
 The ATTORNEY-GENERAL proposed to add to this section the last 
 .sentence of section 37, and stated that he would, in deference to 
 the suggestions of Mr. Justice Menzies, move at the proper time 
 the omission of the remainder of section 37. The Attorney-Gene- 
 ral entered at some length into the subject of these changes, the 
 purport of which can be gathered from his remarks upon the sub- 
 ject of ranking joint and separate debts. The result of his observa- 
 tions was, that whenever joint and separate estates were included in 
 the same order for sequestration, they should be administered by the 
 same trustees, who should be bound, at the same time, to keep separate 
 accounts; that whenever the joint and any separate estates were 
 .sequestrated by distinct orders, they should be administered through- 
 out as perfectly unconnected.
 
 232 ON THE INSOLVENT LAW. 
 
 COLLUSION WITH PETITIONING CREDITORS. 
 
 On the 2Oth section being read, 
 
 The ATTORNEY-GENERAL explained his reasons for not adopting 
 some changes which had been suggested by Mr. Justice Menzies. 
 The Attorney-General was of opinion that the clause 
 as it stood would reach every collusive dealing between the 
 petitioning creditor and the insolvent. If the consideration given 
 by the latter to the former preceded the supercession of the order 
 of sequestration, then the revival of the order would avoid it at 
 once. And if it were given after the supercession, it would neces- 
 sarily, upon the revival of the order, be an undue preference under 
 the provisions of the section as they at present stood. He consi- 
 dered that the clause did not require any additional stringency. 
 
 PREFERENCE OF EXECUTION CREDITORS. 
 
 On section 22 being read, 
 
 THE ATTORNEY-GENERAL said : This section differs, in a very 
 important particular, from the section of Ordinance No. 64, to 
 which, in general, it corresponds. It is the principle of the Roman 
 Dutch Law, that a creditor, by actually laying on his attachment 
 upon his debtor's property, obtains a special lien, known by the 
 name of the pretorian hypothek, and becomes thereby preferent to 
 every other mortgagee of movables, whether conventional or tacit. 
 By Ordinance No. 64 this preference was secured to the creditor 
 whenever the attachment had been laid on before the order for 
 sequestration. The creditor, therefore, instead of losing anything 
 by the sequestration, was rather benefited by it, because while his 
 priority was fully conceded, other creditors who were coming for- 
 ward with their writs, and who would by the Roman Dutch law 
 have participated in the proceeds of the property attached, were 
 stopped short by the sequestration, and obliged to leave the attach- 
 ing creditor in full possession of the field. I see no sort of justice 
 in this arrangement. And I see something worse in a sort of deal- 
 ing which there is reason to fear is not unknown, and one which 
 we cannot possibly be too anxious to discourage. I speak of the
 
 ON THE INSOLVENT LAW. 233 
 
 case in which the debtor knows that he is about to break, and being 
 desirous to favour his friend in the safest possible manner, gives 
 him a liquid document to facilitate a provisional sentence, waits 
 till the execution is laid on and the preference bestowed, and then 
 surrenders. The law should not lead into such temptation. 
 Between creditors who have respectively commenced a suit, re- 
 covered judgment, issued a writ, and laid on an attachment, the 
 lines are difficult to draw ; and it is proposed to place them all 
 upon the same footing, save only, that the attaching creditor is to 
 have the costs of the execution which he was encouraged to lay on. 
 The principle is not without a precedent, and seeing that it is rea- 
 sonable in itself, that it will check collusion, and stop up one road 
 to favouritism, I strongly recommend its adoption by the Council. 
 
 EFFECT OF ORDER OF SEQUESTRATION ON IMPRISONMENT. 
 
 Upon the 23rd section being read, 
 
 The ATTORNEY-GENERAL adverted to a just remark of Mr. 
 Menzies, to the effect that a direction to discharge the insolvent 
 from prison might lead to the discharge of a man in gaol for some- 
 thing else besides debt. This had been altered, and the nature of 
 the imprisonment from which the insolvent might be discharged, 
 more fully set forth. It would be competent for the court to 
 discharge him, should it so think fit, from any imprisonment 
 occasioned simply by non-payment of money. 
 
 The ATTORNEY-GENERAL entered into several explanations with 
 reference to the remarks made by Mr. Justice Menzies on this 
 section. He considered that when a party had been arrested in 
 security of a debt, upon an apprehension that he was about to 
 quit the colony, it was desirable that there should exist a power of 
 discharging him. He was not aware whether or not Mr. Menzies 
 had adverted to this case when framing his observations ; but as it 
 was a case which had actually occurred here very lately, and might 
 soon occur again, he conceived that some provision should be made. 
 The proper provision was to lodge a discretionary power in the 
 court.
 
 234 ON THE INSOLVENT LA\v. 
 
 VALUATION OF SECURITIES. 
 
 On section 30 being read, 
 
 The ATTORNEY-GENERAL moved its omission. It only related to 
 rights of voting and not to amount of debt or dividend. In practice 
 it might be found both invidious and difficult to estimate the value 
 of collateral securities. The case of bills of exchange was one in 
 point. The inconvenience of putting a value upon a given in- 
 dorser's solvency was not counterbalanced by any sufficient benefit. 
 He thought the whole section, which was borrowed from the last 
 Sequestration Act for Scotland, might advantageously be expunged. 
 
 VOTES OF MORTGAGEES. 
 
 On section 31 being read, 
 
 The ATTORNEY-GENERAL said : I have to propose an alteration in 
 this section which requires to be explained. By the corresponding 
 section of Ordinance No. 64, the mortgagee was left, so far as his 
 debt was covered by the mortgage, without any voice in any of the 
 deliberations of the creditors. This state of things was complained 
 of, and, in my mind, not without justice. In nine cases out often 
 the mortgagee exhausts the whole estate, and it is certainly a hard- 
 ship that concurrent creditors who are to receive nothing, and who 
 know that they are to receive nothing, should choose the trustee 
 who sells the property to which the mortgagee must look, who 
 takes possession of the mortgagee's money, and who, if he prove 
 fraudulent or insolvent, will leave the mortgagee without remedy or 
 redress. Feeling the force of these reasons, the committee recom- 
 mended a middle course. The report is in favour of allowing mort- 
 gagees to vote for trustees in number, whether covered or not, but in 
 value only for the estimated balance. In his first remarks upon the 
 proceedings of the committee, Mr. Justice Menzies suggested that 
 the change proposed by the committee would be very little felt, and 
 considered that mortgagees should be permitted to vote both in 
 number and value for the whole amount of the mortgage debt, 
 whether covered or not. Agreeing at the time in the view of Mr. 
 Menzies, I framed the clause as it stands, in accordance with his 
 recommendation. I have since then communicated with the mer- 
 chants upon the subject, and have been convinced by their reason-
 
 ON THE INSOLVENT LAW. 235 
 
 ing that, in avoiding one evil, we are about to introduce another. 
 We shall, I imagine, throw the choice of trustees, in most insolvent 
 estates at this end of the colony, into the hands of a few capitalists} 
 and there will not be, upon the part of the concurrent creditors, 
 that degree of confidence that the estate is managed so as to show, 
 if possible, some surplus, which it is desirable should exist. I feel 
 the force of this objection. But I should not, I think, have yielded 
 to it so far as to return to the phn of the committee, were it not 
 for another alteration by which it will be accompanied. I speak now 
 of the right of all parties who choose, to require security from any 
 suspected trustee, a provision which I shall explain hereafter in its 
 proper place. The mortgagee who disapproves of any trustee elected 
 against his wishes, may demand security for his interest. With this 
 protection he should be satisfied, and having furnished such a pro- 
 tection you may justly act upon the principle of the committee. By 
 this means, and this means only, you will avoid opposite, but con- 
 siderable evils. You will avoid the evil of allowing the mortgagee, 
 who will be himself, taking his entire debt, a majority in value, to 
 influence a few of the small fry amongst the concurrent creditors, 
 and so carry every election. And you will also avoid the evil of 
 compelling a mortgagee to trust his money into the hands of a man 
 for whom he has not voted ; whose solvency or integrity he sus- 
 pects, and yet from whom he is not empowered to require security. 
 Cases have occurred in which trustees, under such circumstances, 
 have not accounted. If it be said that the obligation to give secur- 
 ity will be a great discouragement to the competition for the office 
 of trustee, I answer, so much the better. No man has any right to 
 come forward as a candidate for such an ofiice, whose circumstances 
 and character are such that he can neither give himself, nor get 
 others to give for him, security that he will not make away with 
 the money or other property entrusted to him. 
 
 TRUSTEES. 
 
 On the 42nd section being read, 
 
 The ATTORNEY-GENERAL said : I have an addition to propose 
 to the section which has just been read. But before I advert to
 
 236 ON THE INSOLVENT LAW. 
 
 that addition, I deem it desirable, as this is the first section in 
 which the trustees of the insolvent estate are distinctly introduced, 
 to say a word or two upon the principle upon which, in regard to 
 the choice of trustees, the Ordinance proceeds. It is matter of 
 notoriety that a practice has, in this respect, grown up, which was 
 not contemplated by the framers of Ordinance No. 64. It has 
 been found, that as in England the parliamentary reporters have 
 unexpectedly and illegitimately assumed the character of what 
 has been called th? ourth "ate of the realm, so, in this colony, 
 insolvent trustees have unexpectedly and illegitimately come to 
 form a distinct and important third legal profession. We have the 
 advocate, we have the attorney, and we have the professional 
 trustee. The primary intention of Ordinance 64 was, to introduce, 
 in reference to trustees, the principle that prevails in England ; and 
 in England, although it is competent to choose an assignee who 
 is not a creditor, yet in practice such a choice is never heard of. 
 In that country, creditors invariably choose creditors. The original 
 object was, that in this colony creditors should choose creditors in. 
 the same way. But they have not done so. On the contrary, in 
 nineteen cases out of every twenty, at least at this end of the 
 colony, a trustee is elected who has no interest in the insolvent 
 estate, and who merely desires the office as a certain species of 
 remunerative employment. Under these circumstances, two ques- 
 tions naturally arise ; the one, whether our colonial system is a 
 better system or a worse system than that pursued in England ; 
 and the other, whether, even if it be a worse system, it is expe- 
 dient for this Council to interpose against it ? These questions, 
 you perceive, are quite distinct, and should be separately deter- 
 mined. For my own part, I should be against interference, 
 although I should be of opinion that the present practice was in- 
 jurious. The Legislature would overstep its province by forcing 
 trustees upon creditors, or refusing to receive the trustees whom 
 creditors elect. But that the colonial system is, upon the whole, 
 a worse system than the English, I greatly doubt. In one respect, 
 and that not unimportant, it seems to be entitled to a preference : 
 for it is much less expensive. This assertion may strike you as
 
 ON THE INSOLVENT LAW. 237 
 
 strange, since the colonial trustee receives remuneration, whilst the 
 English serves quite gratuitously. But just because the English 
 assignee serves thus gratuitously, he takes little personal trouble, 
 but surrenders the whole management of the estate into the hands 
 of the solicitor, and although the assignee charges nothing, the 
 solicitor proceeds upon quite another principle, charging for every- 
 thing he does, and charging, too, right well. 
 
 Mr. EBDEN : He receives no commission 
 
 ATTORNEY-GENERAL : Certainly he receives no commission, but 
 what of that ? He receives his bill of costs. A host of minor 
 items soon swell up to a large sum ; and when the attorney sits 
 down to draw his bill, illustrating, curiously, the infinite divisibility 
 of business, and marshalling six and eight pences and thirteen and 
 four pences in interminable array, it is very well if he do not end 
 by sweeping the whole of the assets into his pocket. The assignee 
 cannot be blamed for this. He is not paid, and therefore conceives 
 himself exonerated from the duty of doing the business which he 
 commits to the conduct of the solicitor. But it is not merely 
 because the assignee is not paid that he does not work. In general 
 he would not know how to set about his work, even if he were paid. 
 The division of labour is favourable to proficiency in skill, and 
 practice gives expertness. A creditor without any experience in 
 such matters is unfitted, even if he be prepared to give up the 
 necessary time, to conduct with advantage much of that peculiar 
 sort of business which every trustee finds it ' necessary to transact. 
 Creditors of a certain rank and standing cannot sacrifice the necessary 
 time ; and creditors of inferior rank and standing cannot furnish the 
 necessary ability. Much that the professional trustee does in this 
 colony without any separate charge, is invariably done in England by 
 the solicitor, who puts down in detail every particle of business done, 
 and speedily mounts up a bill of costs beside which the remuneration 
 of the professional trustee, given in the lump, would seem the meres: 
 trifle. The professional trustee labours at what he has to do, be 
 cause it is his profession, and because he must hope to succeed in 
 Jus profession by the means through which every other professional
 
 238 ON THE INSOLVENT LAW. 
 
 man succeeds, industry, activity, ability, zeal for the interest of 
 those who have already employed him, and whose continued sup- 
 port he is desirous to secure ; while at the same time, devoting 
 himself to one pursuit, he gradually attains superior knowledge, and 
 is totally removed from the reach of that temptation by which a 
 creditor, whose interest may not be the same with that of the 
 creditors at large, is not unfrequently beset. Influenced by such 
 considerations, I am, for my own part, not unfriendly to the system 
 of professional trustees. And even if I were hostile to it, I 
 should, as I have already intimated, be indisposed to legislate 
 against it. It is kindly suggested to me, from behind, that 
 there is, perhaps, another course which might be taken : that 
 we might conjoin an official trustee with a creditor's trustee 
 in every estate, and thus attempt to secure some opposite 
 advantages. This suggestion is the more deserving of attention 
 because the principle involved in it has recently received the sanc- 
 tion of the English Legislature. By the Act of the ist and 2nd 
 William IV., chap. 56, the Chancellor is empowered to nominate 
 thirty official assignees, one of whom it is made imperative to con- 
 join with the assignees elected by the creditors of every bankrupt 
 estate. How that provision has worked in England I do not know. 
 That it would not work well in this colony, I shall not venture to- 
 pronounce. But my feeling is against it. I have no doubt that it 
 would be charged by the public with creating every evil experienced 
 however inevitable, and with preventing every good anticipated 
 however extravagant. Mr. Justice Menzies says, as will be seen, that 
 the proneness of the people of this colony to misconceive the 
 meaning of Ordinances is altogether inconceivable except by those 
 who know them. Now I know them well enough to know that 
 they are just as prone to misconceive your own meaning when you 
 kindly step in to do better for them than they can do for them- 
 selves ; and I have no doubt whatever, that every set of disap- 
 pointed creditors, and creditors upon insolvent estates, will be 
 disappointed to the end cf the chapter, would be found ready to 
 trace to the official trustee their diminished dividend, and to show 
 hew much more they would have got but for the supineness or
 
 ON THE INSOLVENT LAW. 239 
 
 incapacity of a class of officers established merely to bestow patron- 
 age in some quarter or other, at the expense of creditors in general. 
 I do not give these opinions as being unalterably fixed. There is 
 high authority the other way. My friend, the Master, you will 
 have perceived, inclines to the plan of official trustees. The head 
 of the Supreme Court, I find, is also favourable to having the 
 plan maturely discussed before its absolute rejection. But being 
 sceptical as to the fact that official trustees would do better 
 than professional trustees, and being impressed with the con- 
 viction that, although they actually should do better, they 
 would be generally believed to do worse, I am for continuing 
 matters on their present footing, leaving the choice of the creditor* 
 unfettered ; and only labouring to secure, as much as possible, the 
 integrity of the election. In justice to our third profession, and 
 in aid of the remarks which I have thrown out, I shall call the 
 attention of the Council to a very sensible passage in the Commen- 
 taries of Mr. Bell. In treating of the sort of trustees whom it 
 will be expedient for the creditors to select, that able writer in- 
 troduces the following observations : 
 
 " In general, it is most advisible for creditors to choose, or for a 
 debtor to select as trustee, a professional accountant, or one who 
 devotes himself to this department of pratice. The attention of 
 such a man is directed to the correct conduct of a trustee's adminis- 
 tration, as a part of the professional character on which he is to 
 depend, and both the debtor and the creditors will have the trust 
 more effectually conducted, and with less of those suspicions which 
 so often disturb the mangement of trust estates, where an individual 
 is selected unaccustomed to this occupation, and having frequentlv 
 no other recommendation but that which should operate the other 
 way, namely, his own interest as a creditor on the estate. In this 
 country we have a set of professional accountants, possessing a de- 
 gree of intelligence and knowledge, and a respectability of charac- 
 ter, scarcely ever, perhaps, equalled in any unincorporated body of 
 professional men. The regularity of conduct, the clearness of 
 accounts, the perfect system of administration, according to which
 
 ON THE INSOLVENT LAW. 
 
 these gentlemen manage their trusts, afford an admirable instru- 
 ment in the arrangement of insolvent estates ; and although im- 
 proper men will thrust themselves into an employment for which 
 they are unfit, it is seldom that any case of breach of trust has been 
 brought into public notice." 2, Bell's Com., 603, $tb ed. 
 
 It appears to me that these remarks of Mr. Bell go strongly to 
 fortify the observations which I have submitted to the Council. It 
 has seemed to me the more necessary to make those observations 
 because the professional trustees, as we have christened them, are 
 often spoken of with a degree of distrust, which I think they do 
 not merit. In my professional capacity I have, of necessity, some 
 knowledge of the manner in which they transact their business ; 
 and it is but justice so say that, as a body, they discover zeal and 
 assiduity, and an anxiety to realize as much as possible for the cre- 
 ditors at large. I am, therefore, for confining ourselves to the evils 
 connected with the manner of election. In the section next but 
 one some underhand and improper practices are specified and pun- 
 ished. And another and a most important change is introduced 
 into the present section ; namely, the right of the minority of cre- 
 ditors to demand security. The majority which elects the trustee 
 needs no protection. He is their own agent, and they may, if they 
 think proper, make it a condition of their support that he shall 
 give them security for the due administration of the estate. With 
 the majority, therefore, we have nothing to do. But the case of the 
 minority is different. To force a man to give his money to another 
 in whom he may have no confidence, whom at all events he does 
 not vote for, without enabling him to obtain security that he will 
 ever get his money back again, is certainly a hardship. I have, 
 therefore, inserted a clause empowering all creditors who have not 
 voted for the trustee elected, to call for security to the satisfaction 
 of the Master or resident magistrate, as the case may be, for 
 whatever interest those creditors may have in the due administra- 
 tion of the insolvent estate. With this salutary provision, which 
 was suggested to me by my hon. friend opposite (Mr. Ross), I do 
 not see how any creditor can have just reason to complain. Should 
 he lose for want of security he must blame himself for not re- 
 quiring it-
 
 ON THE INSOLVENT LAW. 24! 
 
 Mr. Ross: You state here that the trustees must not exceed 
 three in number. I should like to know how that will operate 
 with regard to trust companies ? 
 
 ATTORNEY-GENERAL : They can act according to their ordin- 
 ances. 
 
 Mr. Ross : -But they have, or at least one has, no ordinance yet. 
 We have never been able to get one. And I am clearly of opinion 
 that a company is the best trustee that creditors can choose. 
 
 ATTORNEY GENERAL. For ought I know that may be. But the 
 number of trustees must be limited, or you will have a Babel and 
 not a board. Let the trust companies act through their secre- 
 taries. Why not appoint Mr. De Wet of one association, and Mr. 
 Eaton of another ? And if there be a desire to give ground for 
 public confidence, and set the public quite at ease about security, 
 nothing can be simpler than to announce authoritatively that the 
 capital stock of such or such a company is responsible for the due 
 administration of all insolvent estates of which their secretary shall 
 be chosen trustee. But you can never leave the number of trustees 
 totally unlimited. 
 
 Mr. EBDEN : With reference to this section I would ask whether 
 the mortgagee in this colony might not be allowed, like the mort- 
 gagee in England, the selling of his own property ? 
 
 ATTORNEY-GENERAL : The mortgagee in England differs mate- 
 rially from the mortgagee in this colony. A mortgage of real or 
 immovable property in England has all the forms, and many of 
 of the effects, of an absolute sale. The English mortgage deed is 
 a complete conveyance of the estate, with a clause of redemption 
 in case the money is paid. The legal title, the complete domtnium^ 
 is carried out of the mortgagor and conveyed to the mortgagee. 
 Under these circumstances, the bankruptcy of the mortgagor in 
 no degree affect the interest of the mortgagee, who, if he be 
 covered, stands aloof from the bankruptcy altogether. The as- 
 signees may redeem the mortgage if the creditors shall so think 
 fit. But if not, the mortgagee may hold his mortgage, and choose 
 his own time for realizing his money, returning, of course, to the 
 bankrupt estate any surplus which the mortgaged property may yield
 
 242 ON THE INSOLVENT LAW. 
 
 over and above the mortgage debt and interest. In this colony the 
 principle is different. The mortgagee does not obtain the dominium 
 of the property, which is never taken out of the mortgagor. The 
 former is merely a registered encumbrance upon property which 
 still remains the property of the insolvent, which is still as much 
 his as any other portion of his assets, and which must be realized 
 through the same administration as that which realizes the 
 rest of the estate. By virtue of his registered mortgage the 
 mortgagee becomes a preferent creditor, but there may be tacit 
 hypothecs upon the property, and priorities cannot be determined 
 in such a manner as to allow the mortgagee to seize at once upon 
 the proceeds of the mortgaged property. In a letter published in 
 a late number of the Advertiser, and signed " A Sufferer under 
 Ordinance No. 64" (a title which, if so many suffer as is said to be 
 the case, does not individualize with any great distinctness), it is 
 proposed that the mortgagee should be empowered to offer to the 
 other creditors to take over the hypothecated property in satisfaction 
 of the debt, and that if the creditors should resolve to decline this 
 offer, and a sale should be the consequence, the said creditors should 
 be obliged to make good, not merely the costs of the sale, but the 
 difference between the debt and the proceeds of that sale, in case the 
 purchase money proved inedequate. I do not see that the mortgagee 
 is to pay anything in case the sale should realize a surplus. But I 
 cannot accede to the principle involved. "We must beware of job- 
 bing. Our mortgagees are men of heavy metal, and by a little 
 arrangement meetings may be packed for the purpose of giving 
 mortgagees great bargains, and allowing properties to be taken over 
 which might have realized considerably ; for it is just the property 
 which should, from its value, be exposed for sale, that there would 
 be the most anxiety to except in satisfaction of the debt. I con- 
 ceive that the concurrent creditors have a right to try their chance 
 of a surplus by the only unerring test a public sale. At that sale 
 the mortgagee may buy in, if he thinks proper. But I am, cer- 
 tainly, opposed to any arrangement by which a little maneuvering 
 would constantly have the effect of depriving the insolvent estate 
 of that which it was fairly and righteously entitled to possess.
 
 ON THE INSOLVENT LAW. 243 
 
 [Legislative Council, September 13, 1843.] 
 
 LEGAL CAPACITY OF TJNCERTIFICATED INSOLVENTS. 
 
 On the 48th section being read, 
 
 The ATTORNEY-GENERAL said : A very important alteration of the 
 law is involved in this section, which it may be desirable to explain 
 in order that its policy may be clearly uaderstood. By the law as 
 it now stands the whole property of the insolvent, as well that 
 which he possesses at the time of the sequestration as any which 
 may in any manner come to him during the sequestration, passes 
 to the trustee ; and, in legal signification, the sequestration lasts 
 until the insolvent obtains his certificate. This period may be 
 months, may be years ; may, in fact, never be accomplished, 
 since the insolvent may die uncertificated ; and a moment's reflec- 
 tion will convince any man that very inconvenient results are likely 
 to arise from considering the insolvent, so long as he remains 
 without his certificate, as a mere channel or conduit pipe for con- 
 veying to another party (who very often knows nothing of his pro- 
 ceedings) everything of which he acquires the apparent ownership. 
 The Colonial Ordinance No. 64, is identical, in this respect, with 
 the Bankrupt Act of England : for the verbal differences are too 
 minute and unimportant to merit notice. At home the incon- 
 veniences referred tohaye been strongly felt. The law has operated 
 in some cases to facilitate too much the granting of the certificate ; 
 and in other cases has tended to cast dishonest difficulties in the 
 way. When a creditor of one description is told that by refusing 
 a certificate the bankrupt will be kept for ever in a state of absolute 
 incapacity, he is moved to sign in favour of a man who does not 
 deserve lo receive so ready a discharge. When a creditor of another 
 description knows that by refusing to sign, even for a deserving 
 man, he may be able to squeeze out, from some person or other, 
 some 1 indirect consideration, he will be induced to trade upon the 
 destitution in which he has it in his power to continue the 
 
 R 2
 
 244 ON THE INS LVENT LAW. 
 
 bankrupt, and seek to sell his suffrage. But the inconveniences 
 are not confined to the condition of the bankrupt himself. They 
 are largely partaken by the public in general who have dealings 
 with the bankrupt. The English decisions upon this head are far, 
 indeed, from being uniform and consistent. But some points are 
 clear. It is clear, for instance, that, as against his assignee, the 
 uncertificated bankrupt can hold no property. The bankrupt of 
 to-day, if he dismount in Cheapside twenty years hence, may see 
 his assignee mount into the saddle and ride off with the horse, and if 
 he had not his certificate, can make no legal resistance whatsoever. 
 The hardship here, if hardship there really be, is one of no great 
 moment. But it is when the bankrupt enters into dealings with 
 third parties that the inconvenience is principally felt. This in- 
 convenience is apparent even through the distressing inconsistency 
 of the English decisions. The general rule has been that the 
 bankrupt, although he can hold no property as against his as- 
 signee, can maintain his right to property against all the 
 world beside, his assignee not interfering. He might sue upon 
 a contract made with him since his bankruptcy. He might recover 
 for goods sold by him since the same period. He could confer a 
 good title to negotiable securities passing through his hands in the 
 course of new transactions. In such cases it seemed to be estab- 
 lished that parties sued by the bankrupt could not set up title in 
 the assignee, and thus defeat the action, unless the assignee had re- 
 quired the money to be paid to him. This doctrine appears to 
 have been shaken. According to Mr. Commissioner Law (whose 
 separate report on bankruptcy I got out from England, together 
 with some other parliamentary papers which I considered likely to 
 be of service), a very recent case has decided that the action of the 
 uncertificated bankrupt may be defeated by setting up title in as- 
 signees who do not interfere. The learned Commissioner thus 
 states the substance of the decision to which I now refer : 
 
 " And even when the assignees of the bankrupt do not interfere, 
 when after twenty years his old creditors have ceased to trouble 
 him and had forgotten his existence, this most fraudulent law 
 authorises any person, who by present dealings with him has come
 
 ON THE INSOLVENT LAW. 24$ 
 
 to owe him money, to set up the bankruptcy in defiance of an 
 honest demand ; to proclaim the title of the assignees, though never 
 applied to by, and never intending to pay them." Young vs. Rush- 
 worth, Adolpbus & Ellis, 470. 
 
 Similar questions have arisen in this colony. The case of "Stretch 
 vs. Campbell," in the Supreme Court, in which I was one of the 
 counsel, may be mentioned by way of illustration. The circum- 
 stances were these. A man of the name of Osmond, an uncertifi- 
 cated insolvent, whose estate had been for some years under se- 
 questration, entered into a partnership upon the frontier, with 
 Campbell, the defendant. These parties continued together in 
 business for some time, and carried, on, if I remember rightly, a 
 very considerable trade. At the dissolution of the partnership, 
 Campell appeared to owe Osmond a certain balance, which he set- 
 tled by passing promissory notes payable to Osmond or his order. 
 One of those promissory notes Osmond endorsed for value to Stretch, 
 the plaintiff, who keeps a store in Uitenhage. Campbell, when 
 sued by Stretch for the amount of this note, pleaded that Osmond 
 was an uncertificated insolvent, that the title to endorse was in the 
 trustee, Mr. Harries, of Port Elizabeth, I think, and that Osmond's 
 endorsement consequently conveyed no title. The large and com- 
 prehensive language by which Ordinance No. 64 deprives the insol- 
 vent of all future property of every sort and description whatsoever, 
 and vests it absolutely in the trustee, was certainly a plausible foun- 
 dation for this defence. The court, however, overuled it. But the 
 judges, as it appeared to me, were not unanimous with regard to the 
 general principle involved ; for, while a majority of the court would, 
 I conceive, have affirmed, if necessary, the general proposition that 
 the insolvent might have property as against strangers, his trustee 
 not interfering (a proposition in accordance with what was then 
 considered, both by the bench and bar, to be the English principle), 
 Mr. Menzies, founding himself upon some verbal difference between 
 the English Act and the Colonial Ordinance, was prepared, I ima- 
 gine, to withhold his assent to so general a doctrine. This general 
 doctrine it was unnecessary to decide. Upon the reason of the 
 thing and the analogy of the English case of "Dray ton vs. Dale," in
 
 246 ON THE INSOLVENT LAW. 
 
 2nd Barnwall and Creswell, their lordships unanimonsly held, that 
 whatever might be the legal incapacities of an uncertificated insol- 
 vent, yet that a man who, upon the face of a negotiable instru- 
 ment, promised to pay to the insolvent's order, had thereby pre- 
 cluded himself from saying that the insolvent had no power to 
 make that order. The judgment went, it will be preceived, upon 
 the special circumstances of the case. Quite another judgment 
 might consistently have been pronounced in a case in which it ap- 
 peared that Mr. Osmond had obtained a horse after his sequestra- 
 tion, which horse some neighbour took possession of and refused to 
 resign. Whether the court, in such a case, or in a , case in which 
 it appeared that Osmond had sold the horse and brought his action 
 for the price, would have sustained or dismissed the suit, treating 
 Mr. Harries or Mr. Osmond as the legal owner of the horse, I am 
 not in a position positively to determine. Such a case would be 
 clearly distinguishable from " Stretch vs. Campbell," inasmuch as it 
 would want the very ground, that of express authority bestowed, 
 on which alone the latter case proceeded. For my own part, I 
 look upon it as a hardship that when a debt is due, the demand 
 reasonable, the consideration honest, a party shall stand up, who 
 never has been called upon by the trustees and who never means to 
 pay them, and say to the plaintiff, "You must be nonsuited, for 
 although true it is you are the man I dealt with, nay over and over 
 again engaged to pay, still, in point of law, I must be taken to have 
 dealt, not with you, but with your trustees, parties with whom I 
 have had no communication, and whom I have never seen !" But 
 this is not all. When the trustees do not interfere the law en- 
 courages roguery in third parties, and when the trustees do interfere 
 the same law encourages something like roguery in themselves. In 
 the appendix of evidence attached to the general report of the 
 bankruptcy commissioners of 1841, I find the following case de- 
 tailed in the testimony of Mr. Lewis, an attorney in great practice 
 in bankruptcy : 
 
 "A party had been bankrupt at Liverpool. He did not obtain 
 his certificate. He came to London and his friends set him up at 
 a public house in the Whitechapel-road, where he remained some
 
 ON THE INSOLVENT LAW. 247 
 
 time, and contracted debts to the amount of ^2,600. Finding that 
 his business did not answer, and that he had within 100 of what 
 he owed, he contracted to sell the business to Messieurs Meux, the 
 brewers, and on the day on which the purchase was to have been 
 completed the assignee of the uncertificated bankrupt came in, by 
 virtue of his office, and seized the whole of the property. The re- 
 sult was that the party who had, at that time, nearly sufficient to 
 pay all his new creditors twenty shillings in the pound has been 
 deprived of the whole of that property, and it has gone to pay the 
 creditors who refused to give him a certificate ; and the new credi- 
 tors who had trusted him without a knowledge of the bankruptcy 
 are deprived of the whole of the assets." Appendix, p. 156. 
 
 Here is the statement of a case not put by way of illustration ; 
 not shewing what might be done under the present system in Eng- 
 land ; but exhibiting what actually has been done, to the know- 
 ledge of the witness, in a very recent instance. The same thing 
 might be done in this colony. Such a thing should not, in my 
 opinion, be done anywhere ; and in attempting to correct the evil 
 the first thing to be done is, to trace that evil to its source. That 
 source, as it appears to me, is the inconvenient extent of the period 
 during which the law considers the uncertificated insolvent a mere 
 nonentity. In seeking to give everything to the creditors which a 
 man acquires during a period of which the length depends upon 
 the creditors themselves, you seek to give them tvhat they can 
 after all but seldom get, what those creditors still more seldom 
 get who deserve to get it (for it is the supine or the tricky who 
 will lie by to let the insolvent acquire, and then step forward to 
 seize), and what you cannot seek to give without entailing serious 
 e\ils upon the public generally. Curtail the period in which the 
 insolvent acquires directly for his trustee and for him alone, and 
 you will get rid of the principle OU'L of which the inconvenience 
 arises. Upon the other hand, to vest in the trustee barely such 
 property as was vested in the insolvent at the time of the making 
 of the order for sequestration, might unduly confine the rights of 
 creditors, and furnish a facility for fraudulent concealment. If you 
 can find some intermediate epoch, some point at which the estate
 
 248 ON THE INSOLVENT LAW. 
 
 of he insolvent has been thoroughly investigated and fully collected 
 for distribution, you should vest in the trustee everything belong- 
 ing to the insolvent up to that epoch ; but leave him afterwards 
 free to acquire the legal dominion of all future property. Such an 
 epoch exists in the filing of the account and plan of distribution, 
 which, generally speaking, takes place within six months of the 
 insolvency. After the filing of that account the immediate title 
 of the trustee is extinguished, and the insolvent, although uncer- 
 tificated, should be at liberty to commence trade again, and by 
 exerting his industry endeavour to retrieve his fortunes. I need 
 not pause to point out how such a modification as that which is 
 now suggested must have the effect of relieving us from most of 
 the embarrassments which we now experience. Instead of a con- 
 tinuance of total disqualification which may last for a long life, you 
 have a period much more limited, but still, for practical purposes, 
 of ample extent. It is not proposed, of course, that without a cer- 
 tificate the insolvent should get a discharge from debt. I explained, 
 upon a former day, the principle of the English insolvent law, 
 the cess'w bonorum of that country, and the manner of its operation. 
 By that law all the rights and interests of the insolvent rest in the 
 assignee down to the date of the discharge from custody. After 
 that the insolvent may try his chance and begin the world again 
 But it is an indispensable condition of that dischage that the insol- 
 vent should sign a warrant of attorney to confess a judgment in 
 favour of the assignee, upon which judgment, by leave of the 
 Insolvent Court, execution may issue whenever the judge is satis- 
 fied, on affidavit or otherwise, that the insolvent has acquired the 
 means of satisfying, wholly or in part, his unsatisfied debts. 
 This is the principle which we propose to introduce instead of the 
 principle of the English bankrupt law which now regulates the 
 practice in the colony. I apprehend the principle is not a new 
 one here. The old Sequestrator of the Dutch law only took, I be- 
 lieve, the debtor's present property ; and although there was 
 machinery provided by which future property might be made avail- 
 able for old debts, the dominium t the absolute ownership of that 
 future property, remained in the debtor until some machinery was
 
 ON THE INSOLVENT LAW. 249 
 
 put in motion. In Scotland, in the same manner, future property 
 does not pass to the trustee, and the common course in which credi- 
 tors obtain satisfaction out of it, is by applying for a supplemental 
 sequestration. By this means both Holland and Scotland seem to 
 have avoided the difficulties experienced by the bankrupt system of 
 England, without, I imagine, depriving creditors, characterized by 
 common vigilance, of any substantial benefit. We propose in like 
 manner to avoid those difficulties. The Ordinance provides here- 
 after for the mode of making future property available for old debts, 
 so long as the insolvent continues uncertificated. By acceding to 
 the arrangement thus proposed, you will, I conceive, give to the 
 creditors everything that they can reasonably expect, and at the 
 same time protect the public from the very serious mischiefs which 
 I have already pointed out as being necessarily attendant upon the 
 present system. 
 
 AUDITOR-GENERAL : As far as I ha\e been able to understand 
 the Attorney-General, it strikes me that the proposed amendment 
 is calculated to favour concealment upon the part of the insolvent 
 to a greater extent than exists at present. If you limit yourselves 
 to any stated period, I should think that the insolvent could always 
 find ways and means to conceal his property till he got out of the 
 power of his creditors. 
 
 Mr. HENDRIK CLOETE : It is only intended to limit the title of 
 the trustee. The creditors are at liberty to take his property in 
 another way. 
 
 Mr. Ross : There was no one part of the law more discussed in 
 the committee than that now before the Council. It is absolutely 
 necessary to appoint some time for discharging the trustee, and I 
 maintain that we cannot do better than to let the insolvent begin 
 again, and allow the creditors to follow him in conjunction with 
 such new creditors as may afterwards give him credit. 
 
 ATTORNEY-GENERAL : A word or two will, I think, obviate the 
 objection of the Auditor-General. Observe, the law will still 
 give to the trustee everything belonging to the insolvent at the 
 time of the sequestration, whether freely given up or fraudulently 
 concealed. Observe, farther, that the law will still give to the
 
 250 ON THE INSOLVENT LAW. 
 
 trustee everything that comes to the insolvent between the seques- 
 tration and the time of filing the account and plan of distribution. 
 Whenever any such property may be shown, or hidden, seen, or 
 unseen, it belongs to the trustee as completely as the clothes he 
 wears. All, then, that can be said is, that the insolvent may 
 conceal, for six months or so, what, when it afterwards is produced, 
 the trustee will find it difficult to identify as his property. 
 
 AUDITOR-GENERAL : Does not the change proposed virtually 
 confine creditors to the period which elapses before the plan of 
 distribution ? 
 
 ATTORNEY-GENERAL : I think not. Let me repeat that conceal- 
 ment by the insolvent does not prevent the property from vesting, in 
 law, in the trustee. The objection then grows out of a supposed 
 facility of concealing the property of the trustee in order that it 
 may afterwards be brought forward as new property of the insolvent. 
 I see no great temptation to concealment. But if there were such 
 a temptation, is concealment facilitated ? I doubt it. I am decidedly 
 of opinion that if the creditors are not able to find what property 
 there is before the filing of the plan of distribution they will never 
 find it ; and a man has the same object in concealing property, to 
 have it when he gets his certificate, or even while he is uncertificated. 
 It is before the filing of the plan of distribution that creditors 
 are vigilant ; that they examine the insolvent ; his papers ; his 
 clerks ; his wife's and struggle to extract the true nature of his 
 estate. It may be that in spite of all this property is concealed. 
 Suppose it to be so. But is it not, the moment it emerges, subject 
 to be attached by the creditors, as newly-acquired property ? Believe 
 me that no injurious consequences, in reference to concealment, can 
 arise, sufficient to outweigh the advantages to be derived from the 
 alteration now suggested. 
 
 Mr. Ross : The fact is, that a man has no interest in concealment 
 unless he wishes to incur new debts. For if he brings forward new 
 property it can always be taken. 
 
 AUDITOR -GENERAL : I confess I would prefer to fix, as the period, 
 getting the certificate. 
 
 The ATTORNEY-GENERAL. I should be glad to know the amount 
 of all the property which has ever, since the passing of Ordinance
 
 ON THE INSOLVENT LAW. 25! 
 
 .No. 64, been recovered for creditors in this colony after the filing 
 of the account and plan of distribution in the several estates. I 
 should think none at all. 
 
 VESTING OF INSOLVENT'S PROPERTY. 
 
 On the 49th section being read, 
 
 The ATTORNEY- GENERAL stated that, by Ordinance No. 64, the 
 only provision in reference to the vesting of property had regard 
 to the Master of the Supreme Court and the trustees elected by 
 the creditors. When provisional trustees were appointed to 
 administer the property, the right of property still seemed to be left . 
 in the Master. It was often of importance to know where the 
 right of property resided, and there was no reason for not vesting 
 in the trustees appointed by the court what it was considered pro- 
 per to vest in trustees elected by the creditors. The property and 
 the administration should be conjoined. The present section did 
 this. In deference to an acute remark of Mr. Justice Menzies, 
 an addition would be made to the present draft to cover some inter- 
 vals of administration which had not been previously provided for. 
 
 TRADING BY UNCERTIFICATED INSOLVENTS. 
 
 On section 51 being read, 
 
 The ATTORNEY-GENERAL said : The object of this section and 
 its perhaps too great detail, is to provide for a matter which re- 
 quires to be minutely provided for. In the interval between the 
 order for sequestration and the filing of the plan of distribution, it 
 is our object to prevent all trading and dealing on the part of the 
 insolvent. By strictly prohibiting such trading and dealing, you 
 deprive parties of a temptation to secrete their money. By so 
 doing you make them the more anxious to please their creditors and 
 get their certificate. And by so doing you protect the public from 
 being plundered by parties who can never pay the debts which 
 they incur. Were the period of inaction so long an one as formerly 
 it might savour of hardship to enforce it rigidly. But limited to the 
 extent to which, I trust, the Council will agree to limit it, no insol- 
 vent can complain of regulations which are necessary to prevent
 
 252 ON THE INSOLVENT LAW. 
 
 fraud. Upon the other hand, every man, even an insolvent, must 
 live, and there are some small things which, event in the disastrous 
 interval so frequently referred to, he must be permitted to realize 
 for his support, and with which his creditors have no concern. What 
 he actually works for should be his. If some angry creditor break his 
 head the damages recovered should be his own. But to prevent his 
 trading under false colours you require that, if he conduct any 
 trade or business as the agent of a third party, he must be authorised 
 in writing so to do, and must also have permission, in writing, from 
 the trustees of his estate. Nothing else will effectually prevent 
 jobbing and collusion upon the part of such characters as Maggadas, 
 of insolvent notoriety. Upon the same principle all credit given 
 to such insolvents, of whom we afterwards provide that an alpha- 
 betical list shall periodically be published in the Government 
 Gazette, is made, and made purposely, a desperate concern. Still 
 some transactions are to be protected. I may sell my goods for 
 ready money to any man who has the money to give me, and the 
 insolvent is consequently enabled to pass title to cash paid down. 
 By this means friends may assist the insolvent in his necessity, and 
 he may safely buy what he requires with the money which they 
 bestow. But once remove the barriers against the insolvent's trad- 
 ing, which are here established, and you will let in, though in a 
 mitigated form, the evils presented by Drayter vs. Dale, Young vs. 
 Rushworth, and all the class of cases to which they belong. We 
 must exert ourselves to keep the insolvent out of the market until 
 he has acquired the right to become possessed of property. 
 
 Mr. EBDEN : Would it not be too stringnent to incapacitate 
 him utterly ? 
 
 ATTORNEY-GENERAL : I think not. Observe I am speaking of 
 an uncertificated trader. Between the order for sequestration and 
 the plan of distribution there should be no such character. Even 
 now if an uncertificated insolvent sells a bale of goods on credit, 
 can he recover the price ? Young vs. Rushworth says not, and I 
 suppose that case would be followed in this colony. Here is roguery 
 one way. When such a person goes to Mechau or Morkel for 
 meat, a thing both natural and proper when the purchaser can pay,
 
 ON THE INSOLVENT LAW. 253 
 
 can the butcher recover his money ? Certainly not, and here is 
 roguery another way. The court, indeed, will give you a judg- 
 ment against the insolvent ; but they will not give you execution 
 against his goods, for the law says he can have no goods, nor 
 against his person, for civil imprisonment is only meant to force a 
 .settlement from one whom the law regards as having means. The 
 new creditors, therefore, must wait till the insolvent pays all his 
 old debts, or till he gets certificated, or till doomsday, whichever 
 shall first happen. Allow me to mention to the Council a recent 
 case. Johnstone, the butcher, was, some years ago, insolvent, and 
 Mr. James Mortimer Maynard was chosen his trustee. The estate 
 was liquidated and distributed ; but Johnstone did not get his cer- 
 tificate. He went into business again, and was, for a considerable 
 time, supposed to be doing well. But afterwards he became a 
 .second time embarrassed, though without, as far as I am aware, 
 any culpability upon his own part. Some of his creditors pro- 
 ceeded against him in the Magistrate's Court, and no defence being 
 offered, obtained judgment ; and the messenger of the court seized, 
 in execution, things which had for years been considered to be 
 Johnstone's goods and chattels. Before the sale Mr. Maynard, 
 being aware of his responsibility to the old creditors, did what 
 every prudent man will always do : he took legal advice and acted 
 on it. The result was that the Supreme Court set aside the exe- 
 cution, gave the goods over to the trustee, and left the disap- 
 pointed creditors to console themselves as best they could. Let us 
 endeavour to put an effectual stop to such occurrences. 
 
 Mr. Ross : By the new law such a thing, if it took place at all, 
 could only do so prior to the plan of distribution. Afterwards the 
 insolvent may go on.
 
 254 ON THE INSOLVENT LAW. 
 
 [Legislative Council, September 13, 1843.] 
 
 EVIDENCE OF INSOLVENT. 
 
 On section 53 being read, 
 
 The ATTORNEY-GENERAL said : In proposing to the Council to 
 adopt the improvement of this section suggested by Mr. Justice 
 Menzies, I shall avail myself of the opportunity to say a word or 
 two with reference to the principle involved in the section itself. 
 The object of the clause is to make the insolvent, in all cases, a 
 competent witness. As the law now stands he is frequently incom- 
 petent. In every instance in which he is produced for the purpose 
 of increasing the insolvent estate he is, while uncertificated, inad- 
 missible to give evidence. And besides having his certificate it 
 would, I apprehend, be necessary, in order to make him competent, 
 that he should acquit or release any surplus which might, in con- 
 templation of law, be considered as possible, upon winding up of 
 the estate. Until these conditions have been complied with the 
 insolvent has, in legal estimation, an interest in the event of 
 the suit, and the law in general will not allow any witness 
 who has an interest in the event of the suit to give his testimony.. 
 It would be out of place were I here to do more than advert to the 
 fact that may eminent jurists object to the principle which excludes 
 witnesses upon the ground of interest. They think, and I think 
 with them, that the rule in question rests upon no consistent or 
 reasonable basis. They say that the law allows people under a 
 stronger bias to be sworn. The father may give evidence for the 
 son. The bitterest foe may give evidence against his enemy. The 
 most thoroughgoing partizan may give evidence in favour of his 
 friend. Under these circumstances the jurists to whom I allude do 
 not see the expediency of turning a .Rothschild or a Baring out of 
 the witness box because he has, or may be argued to have, some 
 trumpery interest in the judgment being one way rather than the 
 other. They therefore think that all such objections should go to the 
 credibility and not to the competency. The only purpose of evidence
 
 ON THE INSOLVENT LAW. 255 
 
 is the ascertainment of truth, and truth is always consulted by admit- 
 ting evidence freely, since, as will be obvious upon a moment's re- 
 flection there are criteria of credibility altogether independent of the 
 confidence to be reposed in the witness's veracity ; and the nature 
 of the story which is told may, in certain cases, of itself insure con- 
 viction. Such views as these I believe to be well founded. They 
 are, at all events, spreading. A recent measure proposed by the Chief 
 Justice of England, Lord Denman, is a decided indication of the 
 course which law and legislation are disposed to take. But we are not 
 now about to meddle with the general principle. In by far the greater 
 number of cases which now come before the courts in this colony, 
 and in which the evidence of the insolvent is likely to be called for, 
 he has been decided to be a competent witness. Those cases are 
 connected with the avoidance of undue perferences. It is a branch 
 of the rule, in regard to exclusion on the ground of interest, that 
 when the witness has an equal interest both ways he stands indiffer- 
 ent, and is therefore competent. When, therefore, the trustee of 
 an insolvent seeks to recover from a creditor a payment alleged to 
 have been undue, the insolvent is admissible upon the ground that 
 as the effect of a judgment for the plaintiff would be to make the 
 defendant, whose debt would be revived, a creditor for the amount 
 recovered from him, the insolvent estate is not liable to be deranged 
 by the result of the action, and so the insolvent is disinterested. If 
 his testimony bring new assets into the estate it does so by drawing 
 upon the same estate a new debt to the very same amount, and thus 
 preserving the old balance. I am not sure that the costs of the 
 action coming out of the estate, in case the trustee failed, would 
 not, in legal contemplation, have the effect of damaging this 
 reasoning, and proving that the insolvent had still an interest. But 
 at all events there are a number of cases to which the reasoning 
 referred to would not apply, cases in which the effect of the action 
 if successful, would be to increase the estate. And since it is pro- 
 posed by the present bill to forfeit, in certain cases, the original debt 
 of creditors who receive payment with knowledge or notice of the 
 debtor's fraud, the evidence cf the insolvent in every such case 
 would, in the absence of an express provision, be clearly objection-
 
 256 ON THE INSOLVENT LAW. 
 
 able ; for then the result of the action, if successful, would be to 
 recover assets without at the same time, increasing debts. Under 
 these circumstances, although disposed to think that insolvent evi- 
 dence is generally of a very suspicious character, I am of opinion 
 that it should be universally admitted ; leaving the court at liberty 
 to believe it or disbelieve it according to its inherent credibility or 
 the degree in which it shall chance to be corroborated by other 
 testimony. 
 
 RIGHT OF APPEAL. 
 
 On section 58 being read, 
 
 The ATTORNEY-GENERAL explained that the right of appeal to 
 the court conferred upon preferent creditors by the last clause of 
 this section was to prevent a meeting of concurrent creditors from 
 directing the trustee to do something with the property hostile to 
 the rights of the former class. A case had occurred in which 
 premises mortgaged for a large sum had been contracted to be sold 
 by the mortgagor to a third party. Before the completion of the 
 transfer the estate of mortgagor was surrendered. The creditors at 
 a meeting directed the trustee to enforce the contract of sale. 
 The purchaser, however, had previously bought up judgments 
 against the insolvent, and these he tendered in satisfaction of the 
 purchase money. As the effect of giving transfer of the premises 
 and receiving judgments in return would be to leave the mortgagee 
 perfectly denuded of all claim and deprived of all satisfaction, 
 the Supreme Court was moved to set aside the direction of the 
 creditors, and to allow the premises to be sold in the usual manner. 
 But the court held that it had no power to interfere, and 
 the result was that the parties tried, at considerable expense, 
 a regular action, which left everything precisely as it was before, 
 and rendered necessary quite another course of proceeding. With 
 the section as it now stood no difficulty could have been exper- 
 ienced. 
 
 MEETINGS OF CREDITORS. 
 
 On section 59 being read, 
 
 The ATTORNEY-GtNERAL said : That, at the recommendation of 
 the Master of the Supreme Court, who, more than any other person
 
 ON THE INSOLVENT LAW. 257 
 
 was competent to form an opinion, he had introduced this clause. 
 The Master felt convinced that meetings of creditors would be 
 more fairly and advantageously conducted when held before the 
 Resident Magistrate or himself. In this view he (the Attorney- 
 General) perfectly concurred. 
 
 CULPABLE INSOLVENCY. 
 
 On section 73 being read, 
 
 The ATTORNEY-GENERAL said : This section, as my hon. friend 
 beside me just remarks, is one of some stringency ; and the ques- 
 tion is, does the Council recognize its necessity to such an extent 
 as to warrant them in acceding to it ? It may be observed that 
 almost every one of the delinquencies introduced into this section 
 has long been provided for and punished by the insolvent law of 
 England. By the insolvent practice of that country the court is 
 empowered to remand to prison for any time not exceeding three 
 years all parties proved to be guilty of such charges as are specified 
 in this clause. This certainly is a great power, and I do not pro- 
 pose to visit the offences in question with so much severity. But 
 looking to the nature of the acts prohibited, to the policy of deter- 
 mining by example, and the frequency with which such improprie - 
 ties take place without the smallest inconvenience to any parties 
 except those who suffer from the misconduct, I do not conceive 
 that a power to imprison culpable insolvents for any period not 
 exceeding nine months can properly be called excessive. 
 
 Mr. Ross : It should not be more than six months. 
 
 ATTORNEY-GENERAL : Well, if you think so, I have no objection 
 to six months. 
 
 TRIAL OF CULPABLE INSOLVENTS. 
 
 On sections 74 to 79 being read, 
 
 The ATTORNEY-GENERAL said : Although we have not yet agreed 
 upon the section defining culpable insolvency, we may nevertheless 
 assume that there will be such an offence to try. It therefore be. 
 comes necessary to fix upon the tribunals which shall take cog- 
 nizance of that offence. Upon this subject it will be remembered
 
 258 ON THE INSOLVENT LAW. 
 
 that the report of the committee recommended that the summary 
 jurisdiction proposed to be created should be committed, im- 
 mediately, to the Judges of the Supreme Court. Desiring to place 
 so delicate a function in the most competent hands, so as to secure 
 at once the utmost certainty of punishment for the guilty, and of 
 protection for the innocent, the committee naturally regarded 
 the highest judicial characters in the colony as the fittest 
 depositories of the power which it was intended to bestow ; and 
 not being aware, at the time, of the existence of any impediment, 
 they framed their report accordingly. In fact I had, in part 
 prepared a section vesting the jurisdiction in the Supreme and 
 Circuit Courts respectively. But, in consequence of a floating 
 recollection of a particular provision of the Charter of Justice, I 
 felt it necessary to refer to that instrument, and found, as I had 
 feared, that its terms would not allow me to confer a summary 
 criminal jurisdiction upon those courts. They can respectively try 
 crimes by the assistance of a jury, and not otherwise. By the 
 34th section of the Charter it is directed that all criminal trials 
 before the Supreme Court shall be had before one of the Judges of 
 the said court and a jury of nine men. By the 39th section 
 of the same instrument a similar provision is made in 
 regard to trials in the Circuit Court. Now trial by 
 jury is quite unsuited to such a class of cases as those 
 which we have now in hand. Dependent, as they will often 
 be, upon documentary evidence, upon matters of account, upon 
 circumstances which may require adjournment of the inquiry, the 
 trial by jury could never work with any degree of convenience. 
 Under these circumstances it became necessary to find some other 
 tribunals than the Supreme and Circuit Court, and it appeared to 
 me that for the country districts the Courts of the Resident Magis- 
 trates should be chosen, and that for the Cape Division the Master 
 of the Supreme Court should be created an indepen dent court. 
 By the 48th section of the Charter of Justice new courts, having a 
 criminal jurisdiction over crimes not punishable with death or with 
 transportation, may be established by the Governor and the Legis- 
 lative Council, and my plan was to create, in the person of the
 
 ON THE INSOLVENT LAW. 259 
 
 Master, such a new court. It appears to Mr. Menzies to be more 
 expedient to empower the Master to hold, for the purpose only of 
 these offences, the Court of the Resident Magistrate of Cape Town 
 and I agree that such would be the preferable course. 
 
 Mr. Ross : What is the extent of the Resident Magistrate's 
 power in the way of punishment ? 
 
 ATTORNEY-GENERAL : As matters stand, imprisonment for a 
 month in ordinary cases. But this Council may increase the 
 power. I am not aware of any legal impediment which would 
 prevent this Council, if so disposed, from bestowing by 
 Ordinance the power of inflicting an imprisonment of ten years. 
 In some peculiar cases, selling wines and spirits without license 
 for example, the Magistrates may even now imprison for four 
 months. 
 
 Mr. Ross: I totally disagree with the plan of appointing the 
 Magistrates in the country and the Master in the town. 
 
 ATTORNEY-GENERAL : That is, in fact, the whole question : Is 
 the Resident Magistrate or is the Master of the Supreme Court 
 to try the cases of culpable insolvency arising in the Cape Division ? 
 It appeared to me that the Master was to be preferred, and that 
 for two reasons. The first of these is, that the Master has more 
 opportunity of searching out the merits than the Magistrate can 
 well possess ; and although considerations of distance preclude the 
 possibility of bringing all cases under his jurisdiction, there seems 
 to be no difficulty in committing to him the cases of the Cape 
 Division. The other reason is, that the Resident Magistrate is 
 already burthened with numerous and arduous duties. His 
 ordinary criminal and civil business is very heavy, to say nothing 
 of shipping cases and his labour as Civil Commissioner. The 
 addition which would be made to the duty of the Magistrate by 
 imposing upon him the task of taking these insolvent cases might 
 prove considerable ; while in the case of the Master, those cases 
 are so much connected with his present functions as to require from 
 him comparatively much less labour. I should therefore be in 
 favour of giving the jurisdiction to the Master ; but if the 
 
 Council 
 
 s 2
 
 260 ON THE INSOLVENT LAW. 
 
 The GOVERNOR : The Judges are not of the same opinion. 
 
 ATTORNEY-GENERAL : Mr. Justice Menzics is, clearly. 
 
 The GOVERNOR : I understand the Chief Justice has not been 
 communicated with, and that he sees objections to the Master. 
 
 Mr. Ross : And so do I. I object to any officer of the court. 
 
 The ATTORNEY-GENERAL : With respect to any difficulties which 
 any of the Judges present feel, it is right to state that the 
 other Judges are of course unconnected with the remarks of 
 Mr. Menzies, which were, I believe, in print before his 
 brethren could have seen them. He does not profess to give 
 the opinions of anybody but himself ; and, speaking only his own 
 sentiments, does not affect to bind any other party. After what 
 has been said, however, it will be well to allow this question to 
 stand over for further consideration, and I shall not, at present, 
 make any further remarks upon the subject. But before sitting 
 down I should wish to observe upon some matters connected with 
 the mode of prosecuting for culpable insolvency prescribed in the 
 two sections of the draft immediately succeeding that which we 
 have been just considering, a mode which I have at once abandoned, 
 but a mode which by the bare mention of it seems to have 
 afflicted Mr. Menzies very deeply. It was proposed, the Council 
 will remember, to allow those peculiar offences to be prosecuted by 
 the trustee of the insolvent estate, or any injured creditor or any 
 other injured party. This has occasioned the learned Judge great 
 and, as far as I am concerned, most unintentional discomfort. He 
 says, at page 7 of his recent observations, 
 
 " The provisions as to the mode of prosecuting for the offences 
 set forth in the 7 3rd clause are utterly inconsistent with the prin- 
 ciples which were, by the British Government, deliberately and 
 advisedly introduced into the law and constitution of this Colony 
 for regulating the prosecution of offenders, and would introduce into 
 the judicial system, in so far as relates to the prosecution of crimes, a 
 most glaring anomaly, and one the advantages to be derived from 
 which it is difficult (to me it has been impossible) to discover." 
 
 And in the succeeding page Mr. Menzies again observes : 
 
 "I feel it my duty to submit to His Excellency the Governor, in
 
 ON THE INSOLVENT LAW. 26 1 
 
 the strongest and most earnest manner, my decided opinion that 
 the alteration proposed to be made by this Ordinance on the exist- 
 ing law of the Colony as to the right or" prosecution, not only pos- 
 sesses no recommendation from the expectation of any advantages 
 which it will effect, but will be attended with many dangerous and 
 injurious consequences, even if there exists no intention on the 
 part of its supporters hereafter to extend the anomaly which they 
 are bent on introducing into the law of the Colony to other classes 
 of offences, but much more if its introduction is intended to be the 
 insertion of the point of that wedge which is ultimately to overturn 
 the right of prosecution exercised as at present by responsible public 
 officers, and introduce in its stead, in compliance with the wishes 
 or suggestions of person^ prejudiced against, or incapable of rightly 
 appreciating the advantages of the present system, the right of pri- 
 vate and irresponsible prosecution, which exists in the law of 
 England merely because it does so exist in that law, and without 
 regard to the evil consequences which it there produces, and which 
 are daily becoming to be more apparent, and more grievously com- 
 plained of in England." 
 
 Now I must most clearly and distinctly state that the learned 
 Judge, in this instance, not content with seeing far enough, insists 
 upon seeing much too far ; and discovers a deep significance in thing? 
 which had no such meaning as he seems to suppose. In allowing 
 the trustee to prosecute in a class of cases which are in their nature 
 midway between civil and criminal, my only object was to leave 
 the matter in the hands of those most likely to attend to it, and, 
 perhaps, to relieve the public from some expense. If the law remains 
 as Mr. Menzies thinks it should remain, and as I, for one, am quite 
 willing to let it stand, the result will be that cases will come, in 
 common form, under the cognizance of the Attorney-General, who 
 will determine whether he should prosecute at the public instance, 
 or give the usual certificate. For the law is not that private 
 prosecutions can be stopped by the public prosecutor. All that 
 this officer can do is to refuse to prosecute himself, and give a 
 certificate, under his hand, that he so refuses. Under these 
 circumstances, the object of the draft was considered
 
 262 ON THE INSOLVENT LAW. 
 
 quite innocent and harmless ; and but that the imagina- 
 tion of the Judge was haunted by the ghost of seme departed hos- 
 tility to the office of public prosecutor, he surely could not have 
 conceived the idea that I had conspired with some person or per- 
 sons unknown to subvert the right of prosecution by public officers, 
 a proceeding which would go far to make my office a thing of 
 history, and, of course, to make myself a thing of history as well. 
 The Judge may feel most comfortably convinced that I have no 
 such suicidal notions. That the office may long exist, and also the 
 officer, I fervently desire. But the Judge actually waxes meta- 
 phorical in its defence. This is new. His argumentation is 
 admittedly unrivalled ; he is, certainly, one of the acutest men I 
 have ever known ; but he seldom resorts to tropes and figures, and 
 whenever I attempt to do a little business in that line, he always 
 declares that he does not understand me the more's the pity, 
 whether it be my fault, or his misfortune. Here, however, he 
 rises into illustration, and actually goes so far as to call this little 
 clause "the point of that wedge " which is ultimately to do what? 
 to split ? no, but to "overturn " (wedges don't commonly overturn, 
 do they ?) "the right of prosecution exercised at present by respon- 
 sible public officers." But I rather think he is mistaken. An imme- 
 diate right of prosecution by other parties besides the public prose- 
 cutor has been bestowed by former Ordinances. What the Judge 
 characterizes as an " anomaly," which is bad enough, and a " wedge," 
 which is far worse, is not here mentioned for the first time. It 
 may be found in a much older piece of legislation, namely, the 
 Municipal Ordinance for Green Point. In the 6 1st section of that 
 'aw I find it thus written : 
 
 "And be it further enacted, that all offences committed in 
 contravention of this Ordinance, or of any municipal regulation 
 made under the authority thereof, may lawfully be prosecuted by 
 the said commissioners, in manner hereinbefore provided, in the 
 Court of the Resident Magistrate for Cape Town." 
 
 Now here is the passing over of the responsible public 
 prosecutors, the anomaly, the wedge, and all the rest, residue, and 
 remainder of the apprehended mischief; for between a contra-
 
 ON THE INSOLVENT LAW. 263 
 
 
 
 vention of an Insolvent Ordinance and the contravention of a 
 Municipal Ordinance it will be hard to draw the line. But still 
 the right of prosecution by trustees is a " glaring anomaly," and "a 
 wedge," and the right of prosecution by commissioners is neither 
 the one nor the other ; at least such must be the opinion of the 
 Judge, for he was himself the framer of the Green Point Ordinance. 
 The truth is, that to allow commissioners to prosecute for municipal 
 offences is a convenient course. In the same manner it appeared 
 to me to allow trustees to prosecute for the offences of insolvents 
 would be a convenient course as well. It thus came to pass that a 
 plan was proposed which was conceived in the utmost singleness of 
 purpose, which was guiltless of the smallest possible design to over- 
 turn, by wedge or otherwise, the existing system of the Colony } 
 and which I only regret having put forward because it has been 
 supposed by the learned and able Judge to indicate a disposition 
 upon the part of some persons, and perhaps upon the part even of the 
 public prosecutor himself, to give the public prosecutor the go-by. 
 Adjourned. 
 
 UNDUE PREFERENCES. 
 
 On section 89 being read, 
 
 The ATTORNEY-GENERAL said : We have now reached a most 
 important portion of a most important measure. We have reached 
 the portion of the bill which proposes to set aside, in favour of 
 creditors, certain transactions into which the insolvent may have 
 entered, being of a detrimental character. Those transactions are 
 divisible into two classes. The first class regards transactions in 
 the course of which the insolvent alienates his property without 
 valuable consideration. The second class regards transactions in 
 which the insolvent receives valuable consideration, but in which 
 he gives some creditor a preference over the rest, thus deranging 
 what is considered to be the just equality of creditorial rights. 
 The principle upon which the cases which compose the first class 
 rest will be readily understood and as readily assented to. It is 
 directed against the attempts of persons in desperate circumstances 
 to deprive their lawful creditors of that which should go in satis-
 
 264 ON THE INSOLVENT LAW. 
 
 faction of their claims by alienations of a gratuitous description. 
 Proceeding upon the proverb that every man should be just before 
 being generous, it declares that persons who can only make dona- 
 tions at the expense of disappointed creditors shall not make dona- 
 tions ; and requires, as the lesser of two evils, that the party who 
 has received assets without having given value for them should- re- 
 store those assets to claimants who must, otherwise, remain unpaid, 
 This is the object of section 5 of Ordinance No. 64, and is an 
 object contemplated, I believe, by every system of jurisprudence, 
 ancient or modern, which has been framed to regulate the respec 
 tive rights of creditors and debtors. The expediency of every such 
 provision rests upon two reasons, the one, that men whose circum- 
 stances are desperate, who are plunged in irretrievable insolvency, 
 and who contemplate the non-payment of their just debts, 
 should not be at liberty to provide a refuge for themselves by 
 pretended gifts (which are, de facto, trusts), of the property that 
 should belong to their creditors, in order that when the evil day 
 arrives the insolvent will have had something thus laid up where- 
 with to meet it ; and the other, that men who have acquired 
 property from the insolvent, by no course of dealing, in pursuance 
 of no contract, but voluntarily and without value, can complain of 
 no injustice when they are prevented from growing rich by that 
 which is a loss to other people, and are called upon, in favour of 
 creditors, to make good what was gratuitously bestowed. With 
 this brief but I hope satisfactory explanation of the grounds upon 
 which alienations made without valuable or onerous consideration 
 are proposed to be made void, I quit that portion of the subject 
 and proceed to the discussion of the other class of void transactions 
 to which I have adverted I speak now of undue preferences 
 amongst creditors. Here there is no absence of valuable considera- 
 tion, for the debtor who pays his debt receives valuable considera- 
 tion in the debt discharged. These cases rest upon another 
 principle, and one of which the application is not easy. They 
 are governed, at present, by the yth and nth sections of Ordinance 
 No. 64. When it was found that those sections had begun to 
 excite a good deal of attention ; when, as interpreted by some
 
 ON THE INSOLVENT LAW. 265 
 
 decisions of the Supreme Court, they had notoriously created a 
 great deal of alarm, it became necessary to examine them closely, 
 to ascertain their character, and either to pronounce the clamour 
 against them an ignorant clamour, or else to provide such altera- 
 tions as should render the law more consistent with the true prin- 
 ciples of jurisprudence and the reasonable security of trade. That 
 much anxiety has existed upon the subject admits of no dispute. 
 One respectable merchant, whom I see in this room, is deprived 
 of his natural rest by the existing Taw ; and the same law, it 
 appears, threatens to send my hon. friend opposite (Mr. Ross) to 
 plant potatoes. Let us then, in order, if we can, to shed repose 
 around the pillow of Mr. Sutherland, and detain my hon. friend 
 from the ignoble task of propagating potatoes, investigate with as 
 much accuracy and candour as we can command the nature and 
 operation of the law now regulating void transactions, for the 
 purpose of making such wholesome alterations as may seem to be 
 required. That law must be looked for either in what I may call 
 the common law of the Colony, the Roman-Dutch law, or else 
 in our colonial statute law, the local legislation of the Cape. With 
 regard to alienations made without valuable consideration, the 
 Roman-Dutch Law sets its face against them with the same sternness 
 that characterizes Ordinance No. 64. Such alienations were, by 
 the Roman-Dutch law, void or voidable as against disappointed 
 creditors 
 
 Mr. EBDEN : Is there not a limit ? 
 
 ATTORNEY-GENERAL : I am not aware of any limit other than 
 that gratuitous alienations might, of course, be made by a man not 
 insolvent. It does not appear to me that section 5 of Ordinance 64 
 materially, if at all, extends the common law of the Colony. But 
 with respect to preferences amongst creditors the case is very 
 different. So far as I am acquainted with the subject, I should say 
 that so long as the debtor retained the administration of his estate, 
 and down to the period at which the estate was taken out of him 
 by the " mtssio in possessionem" or actual sequestration, as we may 
 call it, he might pay any just creditor a debt completely due ; 
 that every such payment was a good and valid one for all intents and
 
 266 ON THE INSOLVENT LAW. 
 
 purposes, and that whether it were made through force of legal pro- 
 cess, or by the pressure of importunity, or voluntarily and spon- 
 taneously, without either importunity or process, made no difference 
 whatsoever. When the creditors had got possession, indeed? 
 another order of things prevailed. After the messenger had taken 
 possession, when the " missio " had been extended, all acts of the 
 deprived debtor were null and void. But down to that period he 
 retained, I apprehend, not merely the legal dominium of his estate 
 but the unfettered power of paying such creditors as he pleased 
 all just debts already due, having within these limits a power to 
 prefer. To the framers of Ordinance 64. it appeared that the pro" 
 visions of the common law were too lax. They seemed to allow 
 transactions to stand which deserved to be set aside. To reach a 
 number of cases which were not reached by the common law 
 sections 7 and 1 1 were introduced. The 7th section relates to 
 alienations of goods and effects. The nth section relates to cases 
 which, in a philosophical point of view, are the same, but in 
 which the thing given is money ; that is, to payments. Different 
 principles are provided for the regulation of these different 
 modes of satisfying debts. The 7th section declares void all 
 alienations not compelled by legal process made when the 
 man knows himself to be insolvent, or contemplates the sur- 
 render of his estate as insolvent, or knows that proceedings have 
 been commenced for a compulsory sequestration, or when the aliena- 
 tions have been made within sixty days of the making of the order 
 of sequestration, provided, in every case, they have the effect of 
 preferring one creditor to another. I am not sure that there is, in 
 practice, any use in coupling a contemplation of surrender, or a 
 knowledge of hostile proceedings to obtain a sequestration having 
 been commenced, with the comprehensive condition which precedes 
 them, namely, knowing himself to be insolvent. Knowing himself 
 to be insolvent is a circle large enough to contain invariably the 
 other two. A man may know himself to be insolvent without con- 
 templating the surrender of his estate, but that he should contem- 
 plate the surrender of his estate without knowing himself to be in- 
 solvent is scarcely supposable. The condition in regard to the sixty
 
 ON THE INSOLVENT LAW. 267 
 
 days, however, is one of a very different description. This is a 
 provision which overleaps all knowledge of insolvency, and is com- 
 pletely irrespective of the debtor's circumstances. If the insolvent 
 be to-day worth surplus thousands, and with that knowledge makes 
 an alienation to a creditor, a sale of merchandize, for example, to 
 be set off against the debt, yet if within two months he be driven 
 by some act of God, fire, or shipwreck, to surrender an estate which 
 has thus unexpectedly been made insolvent, alienation is avoided. 
 To have been made, under any circumstances, however unequivocal, 
 within sixty of the insolvency, is of itself absolutely fatal. Now, 
 whatever observations I may have to offer with regard to the prin- 
 ciples upon which section 7 is based, I am able to bestow upon it 
 the commendation of being clear, unambiguous, and, in practice, of 
 easy interpretation. We come next to payments of money as con- 
 tradistinguished from alienations of effects. We come to the well- 
 known section II, a section against which a much greater degree of 
 hostility exists than any by which section 7 is assailed. And here I 
 must take leave to say that although Ordinance No. 64 was framed 
 by two very able men, Mr. Justice Burton, of New South Wales, 
 and Mr. Justice Menzies, of this Colony, and although signal marks 
 of their ability are to be found in many portions of the law in 
 question, I find no such marks in this complicated and by no 
 means creditable section. Of Mr. Burton, judging by his book 
 and his legal reputation, I am disposed to think highly. The 
 other Judge is one of the acutest of men, with a fine, analytical 
 understanding, and a positive inspiration for drawing Ordinances. 
 It was said of Pope that " he lisped in numbers." I should scarcely 
 imagine that this was the case with the learned Judge ; but that 
 his first utterances were of a nature to prove an instinct for law- 
 making I could readily believe. In criticising his work, as I have 
 a right to do, I freely acknowledge my own comparative inferiority. 
 There may be one or two things that I have the vanity to think I 
 can do as well as the learned Judge, jumping, for example, (Mr. 
 Menzies, if he were here, would, perhaps, suggest that " bouncing' 
 would be a better term) or generally, anything dependent on length 
 of legs ; but as regards the power of drawing Ordinances, I confess
 
 268 ON THE INSOLVENT LAW. 
 
 my immeasurable inequality. But now, having said this much, 
 and said it too with all sincerity, 1 will say further, that in the 
 whole course of my reading, in the whole course of my life, in Acts 
 of the English Parliament framed by country gentlemen, in Or- 
 dinances of the Colonial Legislature, sometimes not very artificially 
 constructed, I have never read, at home or abroad, a section upon 
 which so much depends wherein there is so little evidence that the 
 draftsman clearly understood what he was writing. It is bad 
 throughout. As Dr. Johnson said of a leg of mutton on which he 
 dined once at Oxford, and which grievously disappointed him, ex- 
 pressing himself with that energy which ever characterized his lan- 
 guage when his feelings were profoundly touched, " Sir, 'tis alto- 
 gether bad, 'tis ill-fed, ill-killed, ill-kept, and ill-dressed." So I say 
 of this nth section, Sir, it is altogether bad, 'tis ill-designed, ill- 
 placed, ill-arranged, and ill-worded. Go where you will, you find 
 men, not deficient in intelligence, disputing about the sense which 
 the clause is intended to bear, and there is so much argument about 
 its meaning that its policy is not reached or subjected to due dis- 
 cussion. Payments by the insolvent and payments to the insolvent, 
 both classes being clogged with numerous conditions, and all 
 crammed into one section instead of being kept distinct, are found 
 respectively going up and down like buckets in a well, only with- 
 out their regularity of movement. And whereas improper aliena- 
 tions in the yth section are declared null and void, improper 
 payments in the nth section are only declared to be fraudulent, a 
 difference of language which would argue a difference of meaning, 
 while it would yet appear that no difference in meaning is sought 
 to be conveyed. Alienations, again, made by a man knowing 
 himself to be insolvent must, under the 7th section, have the effect 
 of preferring one creditor to another. But it is not said that pay- 
 ments, under the nth section, must have that effect in order to be 
 void ; so that if a man, knowing himself to be insolvent, turned all 
 his assets into money and paid his creditors pro rata, preferring 
 none of them, all his payments would, nevertheless, be fraudulent. 
 The words ' really and bona fide" are, in this nth section, applied 
 to payments by the insolvent ; in almost the very next line, the
 
 ON THE INSOLVENT LAW. 269 
 
 very same words are applied to payments to the insolvent ; and yet 
 the sense of the section as given by the Court requires a different 
 meaning to be attached to the words in the one case from that 
 which is held to belong to them in the other. And to crown the 
 whole, there is an air of mystification about the whole clause which 
 demands the utmost watchfulness at the hands of the reader who 
 would avoid mistakes. In a very clear and able article in the last 
 Commercial Advertiser, the editor has been misled so as to give to 
 payments by an insolvent a condition which belongs only to pay- 
 ments to an insolvent, and has thus exposed his argument to 
 danger. Do I, therefore, speak too strongly when I say this 
 nth section is hard to be understood? But, aided by con- 
 struction, we can give its meaning. By the nth section, then, 
 it is held to be provided that all payments made to any 
 creditor by any person knowing himself to be insolvent, or 
 contemplating the surrender of his estate as insolvent, or know- 
 ing that proceedings have been adversely commenced to make him 
 an insolvent, or knowing that an order of sequestration has been, 
 made, and having the effect to prefer one creditor to another, are 
 null and void. This is not the language of the section, but it is the 
 effect of the decis-ions upon it ; for, in Court, we have always taken 
 so much of what I have now said, as it is not expressed in the clause 
 to be tacitly understood. Without pausing to point out that section 
 lias well as section 7 seems to accumulate a greater number of 
 tests of invalidity than are absolutely necessary (for the knowledge 
 of insolvency in itself covers the entire ground), it is of essential 
 importance, since payments made by any man who knows himself 
 to be insolvent are invalid, to ascertain clearly what it is to be in- 
 solvent, and what it is to know one's self to be so ; for upon these 
 two points hang the security or insecurity of payment. If you 
 wish to know the views of the highest authority upon the subject 
 the bench of Judges, turn to the last remarks of Mr. Justice 
 Menzies, where at page 12 you will find it thus written : 
 
 " The numerous and carefully reported and uniform and con- 
 sistent decisions of the Supreme Court have so clearly fixed and 
 determined the legal construction of the term insolvency, that no
 
 270 ON THE INSOLVENT LAW. 
 
 counsel or attorney, whose opinion is worth taking upon any legal 
 question, can find any difficulty in giving a correct and certain 
 opinion as to whether the transaction, as to the validity of which 
 his opinion is asked, is or is not reducible." 
 
 But the learned Judge still considers, and in my mind very 
 properly, that doubts may here and there exist ; and for the pur- 
 pose of effectually and for ever dispelling these he proceeds to 
 give, in the form of a proposed declaratory section, the sum and 
 substance of the numerous, uniform, and consistent decisions of the 
 Supreme Court. 
 
 " And be it enacted that every person who shall have committed 
 any act hereinafter declared to be an act of insolvency, or the assets 
 of whose estate immediately available to him for the payment or 
 satisfaction of his debts or obligations shall be insufficient to pay or 
 satisfy the debts or obligations which he shall be required imme- 
 diately to pay or satisfy, or whose liabilities, calculated fairly, shall 
 exceed his assets fairly valued, shall in law be deemed and taken 
 to be an insolvent person." 
 
 This, then, is the sum and substance, the extracted essence of 
 the numerous, uniform, and consistent decisions of the Supreme 
 Court upon the definition of insolvency. I have no doubt that it i s 
 correct. But after four years' practice in that Court, during which 
 I have argued some of the decided cases, I should have hesitated 
 before saying that I had ever heard from the full Court any distinct 
 definition of insolvency, or that any such definition, if given, was 
 similar to that which Mr. Menzies so very clearly lays down. I 
 bow, however, to the authority of the learned Judge, and take it 
 now, amongst other things, that a man is in law insolvent in each 
 of two cases, the one in which, with any amount of property you 
 please, he has not ready money enough to pay his debts as they 
 are demanded, and the other in which, with plenty of ready money 
 to pay his debts as they are demanded, his property if 
 valued would not be enough to cover all his liabilities. A merchant 
 may have assets 10 treble the value of his debts, no matter, if he 
 has not cash when his creditor calls, he is an insolvent person. 
 An insolvent may have cash in plenty and pay his creditor as he
 
 ON THE INSOLVENT LAW. 
 
 calls, no matter, if his assets fairly valued would not cover his 
 
 liabilities fairly calculated, he is an insolvent person. By the lith 
 
 section every payment made by any merchant knowing himself to 
 
 be in either of these predicaments is null and void, and the creditor 
 
 paid, after any lapse of time, may be compelled to refund. The mer- 
 
 chant short of cash, and who, although possessing property, knows thaj 
 
 he is short of cash, cannot support his credit by any payments ; for 
 
 all such payments are void and nothing can save them. The mer- 
 
 chant who has cash but is short of property is not quite so badly off, 
 
 for Mr. Menzies adds a proviso to his declaratory clause to the effect 
 
 that he will not be deemed to know himself to be insolvent if it 
 
 be proved to the Court that he had reasonable grounds for believing 
 
 that he would have assets equal to his debts by the time his 
 
 debts became due. Behold, Sir, the result of the numerous, uniform^ 
 
 and consistent decisions of the Supreme Court. I know some- 
 
 thing of mercantile life, and of the inevitable vicissitudes of trade 
 
 and speculation ; and I fearlessly assert that there is, in all proba- 
 
 bility, scarcely one house of great eminence in London which at some 
 
 period or other of its career has not found its immediate funds 
 
 short of its immediate liabilities, or, upon the other hand, its assets, 
 
 for the time, insufficient for its debts. But, hoping and working^ 
 
 it held on and overcame its difficulties ; and to say that all payments 
 
 made by such a house merely for the maintenance of its credit were 
 
 to be treated as absolutely null and void would be to prostrate all 
 
 commercial confidence and credit in the dust. Observe, Sir, that all 
 
 consideration of the debtor's motive is studiously excluded. In section 
 
 II it is not even said that the payment to be void must have the 
 
 effect to prefer. But I conceive that omission to have been inadver- 
 
 tent, and have construed the clause as if it were inserted. It is clear 
 
 however, that any intention or purpose in the mind of the debtor 
 
 to give to the paid creditor an advantage is not regarded. He may 
 
 have never seen that creditor's face ; when making the payment he 
 
 may not know who the creditor is ; a mercantile rival may be 
 
 paid in the usual course of trade and dealing, for the purpose 
 
 merely of sustaining credit ; all this avails nothing ; the law is 
 
 inflexible, and the payment must be set aside. No doubt the
 
 ON THE INSOLVENT LAW. 
 
 nth section declares that a payment made under compulsion 
 of legal process is protected. But what is such compulsion ? 
 It has been decided by the Supreme Court that when a man 
 sues his debtor, files his declaration, sets down the cause for 
 trial, and is prepared to prove his case, if the defendant come to the 
 attorney, and pay debt and costs, the plaintiff may be compelled to re- 
 fund both, because there was, in law, no compulsion by legal process 
 to take the payment out of the operation of the law. Under these 
 circumstances, and having thus explained the nature, principles, and 
 working of the system, I ask the Council to determine whether or 
 not that system is consistent with the reasonable security of trade ; 
 or whether, on the other hand, aiming at an impracticable equality 
 amongst creditors, it is not calculated to do much more harm than 
 good, and should not, therefore, be replaced by principles which 
 would apply only to cases in which some moral impropriety was 
 involved. In order to be clearly understood, and to relieve myself 
 from the suspicion of overstating the provisions of the existing law 
 in reference to undue preferences, I shall lay before the Coun- 
 cil the facts of two cases which have been recently decided in 
 the Supreme Court, both, as it happens, growing out of one estate, 
 The first of these cases was the Trustees of J affray vs. Cbiappini. 
 Jaffray carried on business in Graham's Town, chiefly as a factor 
 or agent for other people. Amongst those who employed his 
 services in that capacity were Chiappini & Co., of Cape Town. 
 Chiappini & Co. having found it convenient to establish an agent 
 of their own in Graham's Town, ceased to consign to JafFray, who 
 remained, to some extent, in their debt. Chiappini's new agent was, 
 of course, instructed by his principals to get a se ttlement from JafFray 
 as soon as he could. After demanding the money more than once, 
 JafFray gave a draft upon the Eastern Province Bank for jioo on 
 account, which the other received. This was in the very early part 
 of February. In the course of the succeeding April, JafFray, having 
 failed in effecting a composition with his creditors, surrendered 
 his estate ; and some months afterwards the trustees sued Chiappini 
 & Co. for the 100 and recovered it. It appeared that in the 
 middle of January JafFray had been made aware that his affairs, as
 
 ON THE INSOLVENT LAW. 273 
 
 balanced up to the preceding October, showed a deficiency of, I 
 think, two and sixpence in the pound, and that he had not improved 
 in February. It was vainly urged that Jaffray had no feeling 
 for Chiappini and Co., that what he did was in sustainment of hi s 
 own credit, that it would have been done to any creditor similarly 
 situated, that it was fair and bona fide, and in the common'course of 
 trade. The Court declared that with these things they had, under 
 the Ordinance, nothing to do ; that the only question was whether 
 JafFray knew himself to be insolvent when he paid Chiappini & Co., 
 and that, being satisfied upon that point, the judgment followed as 
 a necessary effect. Chiappini & Co. were ordered to refund. As 
 it was, the sum was only 100 ; but it might have been , 10,000 ; 
 it might have utterly ruined them. But such is our colonial law. ; 
 
 Mr. Ross : Let me put a single question to you. Do you think 
 that a Court of law in England would have given the same decision ? 
 
 ATTORNEY-GENERAL : It would sufficiently serve the purpose of 
 my hon. friend to state that before I conclude it will be necessary 
 for me to explain fully what I consider the English principle to be, 
 and I shall then give a distinct answer to the pithy question which 
 he has just put, but in the meantime, I may as well proceed to 
 state the circumstances of the second case which I promised to 
 submit. This was the case of the Trustees of J 'affray vs. Christian. 
 The circumstances were these : James Searight & Co., of Cape 
 Town, consigned to JafFray in Graham's Town upon commission. 
 In November, 1841, the latter, owing to the former ^260 odd for 
 goods sold on a del credere, sent them his promissory at four months 
 for the amount. Searight & Co. discounted this note with Mr. 
 Christian a day or two after they received it. Mr. Christian 
 locked up the note, and Mr. Searight took the money. The 
 note was made payable at the office of Home, Eagar & Co., 
 of this town, and upon the day of its maturity Mr. Christian 
 sent it for presentation, and it was paid with money which 
 JafFray had provided ; whereupon Mr. Christian's messenger 
 receipted the bill and gave it up ; and Mr. Christian that night 
 slept comfortably, as did, I have no reason to doubt, Mr. Searight 
 too. But, alas ! Sir, what is man ? and what his payments ? Mr. 
 
 T
 
 274 ON THE INSOLV E NT LAW. 
 
 Christian, a long while afterwards, when he had nearly forgotten 
 that there ever had been such a bill, was disagreeably disturbed 
 by the receipt of a well-known but by no means popular communi- 
 cation, witnessed by Sir John Wylde, Knight, and commonly called 
 a summons, by which he was commanded forthwith to repay 
 the 260 aforesaid, received by him from Jaffray when Jaffray 
 knew himself to be insolvent. The cause came on for trial, and 
 Mr. Christian was ordered to refund. It was admitted by the 
 bench that Mr, Christian was in optima fide, that all idea of inten- 
 tion upon J affray's part to prefer him was out of the case, that 
 Jaffray, when he sent provision for his note, had no notion of the 
 hands in which it was, that his only object was to keep his business 
 going, that the money had been received by Mr. Christian in the 
 regular course of trade, as applicable to the presentation and pay- 
 ment of negotiable instruments. But all this availed the defendant 
 nothing, so long as it was admitted that Jaffray, when he sent pro- 
 vision, knew himself to be insolvent. Now this decision has excited, 
 and still excites, much mercantile alarm. I conceive that alarm 
 to be a just alarm. The Banks perceive that they are threatened. 
 Had the Cape of Good Hope, the South African, or the Eastern 
 Province Bank been the defendant, the same rule must have been 
 applied, and the same judgment given. The Bank would have been 
 discounter, and Mr. Christian was the same. It was decided that no 
 original privity between the insolvent and the party paid was neces- 
 sary to constitute the character of a creditor within the meaning of the 
 nth section of the Insolvent Ordinance, but that every person who 
 by cession or any other means was in such a situation that he could, 
 in case of insolvency, have been admitted to prove a debt, was, for 
 that reason, a creditor equally liable to refund with any creditor 
 whatever. Upon this ground the last endorser of a bill, which may 
 have a number of good names upon it, is equally liable with any 
 common creditor to refund the amount of that bill, if the ac- 
 ceptor, when providing for its due honour, knows himself to be 
 insolvent. Now, if the effect of receipting and giving up a bill 
 duly honoured be to discharge prior endorsers who, of course 
 receive no notice of dishonour, the situation of the holder is
 
 ON THE INSOLVENT LAW. 275 
 
 most hard. Mr. Christian had Searight & Co. bound by their 
 endorsement. Had Jaffray never paid the bill, Mr. Christian would 
 have received the money from Searight & Co. But because Jaffray 
 did him the damage of paying the bill, Mr. Christian, if the law be as 
 I am now supposing, loses the amount. It is right to observe that 
 the Court, in giving judgment, expressed their opinion that Searight 
 & Co. were not discharged, although the bill was due in February^ 
 1842, and down to the time of delivering judgment on the 3oth 
 August, 1843, the endorser had had no notice. This was merely a 
 dictum, for the point was not one which their lordships professed 
 to decide. That opinion may be well founded. But I respectfully 
 dissent from it. I should wish to see some authority produced in 
 its support. It is a startling thing to say that an endorser who, by 
 the law merchant, makes it a condition of his guarantee that he 
 shall have notice of dishonour within a reasonable time, shall, after 
 the lapse of months or years, be held liable upon a bill which never 
 was dishonoured at all. It is a startling thing to say that an en- 
 dorser who is liable only upon non-payment shall be liable upon a 
 bill which was actually paid, although rightly or wrongly that 
 payment is declared to be fraudulent. It is a startling thing to 
 say that every fraudulent payment, when set aside, replaces matters 
 just in statu quo. My present impression is against this view. I 
 conceive that the principle of a passage which I shall read to the 
 Council out of Bell does not countenance that view. Speaking of 
 the effect of the reduction or setting aside of the preference, Bell 
 observes in his 2nd vol., page 233, 4th edition, 
 
 "If a third party is bound as a co-obligant with the bankrupt, 
 and his obligation has been cancelled on the bankrupt granting the 
 security challenged, the holder of that security cannot, on its being 
 reduced, have his remedy against the third party, or oblige him to 
 restore to efficacy his obligation which has been discharged." 
 
 Observe, Sir, that I do not quote this as bearing upon the very case 
 of an endorser. But I quote it as involving a principle which ex- 
 tends to that case ; for the neglect to give notice of dishonour of a 
 bill in mercantile course amounts, I conceive, to a cancellation of 
 the endorser's obligation. The Chief Justice, indeed, distinctly 
 
 T 2
 
 276 ON THE INSOLVENT LAW. 
 
 stated that, in his -view of the case, Christian could not recover 
 from Searight in an action on the bill. But, upon the principle 
 that Searight had received Christian's money for the instrument, and 
 that the consideration had ultimately failed, his lordship considered 
 that an equitable action might be raised in the nature of the English 
 action for money had and received. I confess I am not able to 
 assent to this reasoning, and conceive that the action must be upon 
 the bill or not at all. Mr. Menzies went upon this principle, and 
 distinctly laid it down that if Mr. Christian, on the 3Oth August, 
 1843, left the Court and gave notice to Searight that the note of 
 Jaffray was dishonoured on the 5th cr 6th of February, 1842, 
 Searight was responsible as much as if he had got notice the day 
 after the note was due. 
 
 Mr. Ross : Suppose Searight, in the meantime, had gone to Eng- 
 land. 
 
 ATTORNEY-GENERAL : We need not argue that question. In 
 theory his removal would not affect the nature or extent of his 
 legal obligation. But assuming, for a moment, that Mr. Searight 
 had quitted Cape Town and settled in Liverpool, and that an 
 action were tried there by a jury of Liverpool merchants, I cannot 
 persuade myself that they would recognize such a doctrine as 
 \vould revive, after years, the liability of an endorser because the 
 payment by the acceptor was fraudulent in law. I do not care, 
 however, to discuss this question further. It is immaterial, in my 
 opinion, whether it is the holder who loses by losing his recourse 
 on the endorser, or the endorser who loses by having that recourse 
 unexpectedly preserved. The holder, let us admit, may fall back 
 on his endorser. But his endorser may have prior obligants bound 
 to him who were solvent when the bill was due, but who have be- 
 come insolvent in the lapse of time, and what is he to do then ? In 
 my mind, the hardship is so equally balanced in both cases that it 
 is scarcely worth while, in discussing the policy of the law, to draw 
 a line between the sufferers. I have thus explained and illustrated, 
 as clearly as I could, the principle and operation of the 1 1 th clause 
 of Ordinance 64. But before I quit it, there is a matter which I am 
 bound not to leave unnoticed, because it has been ably written about,
 
 ON THE INSOLVENT LAW. 2 77 
 
 and ably argued about, and because it is intimately connected with 
 the true construction of this celebrated clause. By casting your eye 
 over the section, you will perceive a declaration that all payments 
 really and bona fide made shall be valid. Founding themselves 
 upon this declaration, many persons have contended that the outcry 
 against the Ordinance is most unfounded and unjust. They 
 have contended that there is a protective power in that de- 
 claration which protects every transaction that deserves to be 
 protected. They have contended that it is to contradict the plain 
 language of the framers of the law, to represent them as having 
 meant to impeach real and bona fide payments, which, on the con- 
 trary, they expressly declare valid. They have contended that 
 every payment which is real as opposed to pretended, and bona fide. 
 as opposed to a fraudulent intention, is saved by the very terms of 
 the clause itself. They have contended that this is the meaning- 
 of the phrase " real and bona fide" when applied, in the same sec- 
 tion, to payments to an insolvent, and that there is no reason to 
 give a different meaning to the phrase when applied to payments by 
 an insolvent. All this has been contended in Court and out of 
 Court by myself and others, but never more strongly than in a 
 recent article in the Commercial Advertiser. But it has been con- 
 tended in vain. The Supreme Court has solemnly overruled all 
 such arguments. I hold in my hand the Cape Town Mail with the 
 judgment of Mr. Justice Menzies in the case of Trustees ofjaffray 
 vs. Cbiappini, and [ find it therein thus laid down : 
 
 " Even if this payment could be considered as in every other re- 
 spect bona fide, this would not protect it from the operation of the 
 last-mentioned clause of the Ordinance, that clause being that all 
 payments made to any creditor by any person knowing himself to- 
 be insolvent should be fraudulent." 
 
 The Chief Justice is quite as express upon the same point, In his 
 judgment in the case of Trustees of J affray vs. Christian, he thus 
 expresses himself amidst a good deal more to the same effect 
 
 " The Ordinance, however, makes the exception that ' all pay- 
 ments really and bona fide made by any insolvent shall be valid ;' but 
 the immediately preceding part of the enactment in the same clause
 
 278 ON THE INSOLVENT LAW. 
 
 of the Ordinance enacts that a person knowing himself to be insolvent 
 at the time cannot make a bona fide payment, because any such payment 
 made by such persons, with such a knowledge, must be held in law 
 fradulent, and therefore void." 
 
 It is therefore perfectly indisputable that the Court has pro- 
 nounced that the protection given to payments really and bona fide 
 made does not protect any payment which is made by a man who 
 knows himself to be insolvent. No indifference of mind as to the 
 creditor preferred, no common course of business, nothing what- 
 ever but a writ of execution, will save a payment made with a 
 knowledge of insolvency. And here, again, I complain of the 
 structure of this section. Where did those words " really and bona 
 fide" come from ? Let me trace their history. The English Bank- 
 rupt Acts began by avoiding all transactions between the act of 
 bankruptcy and the commission. It became necessary to control 
 this destructive principle. Accordingly the Act 19 Geo. II, c. 32, 
 section I, provided that " no person really and bona fide a creditor 
 * * should be liable to refund any money which was really and 
 bona fide, and in the usual and ordinary course of trade and dealing, 
 received by such person of such bankrupt." This Act was narrowly 
 construed by the Judges. They held that the course of trade 
 and dealing meant legally the course of buying and selling, and 
 nothing more. By this means the Courts cut away the ground from 
 under the feet of the Legislature. The 6 Geo. iv., c. 16, section 82* 
 therefore, omits the words which had been construed so as to limit 
 too much the operation of the clause, and gives validity to real and 
 bona fide payments without stint. But it never is doubted, never 
 has been doubted, and never will be doubted, that payments made 
 in rhe usual and ordinary course of business are contemplated and 
 ratified by the English Act. Under these circumstances, we find 
 terms which are borrowed from the English law, and which have 
 in that law a clear and undisputed meaning, transplanted into 
 Ordinance No. 64, and placed in such a position that they seem to 
 be intended to retain their primitive signification, which, however, 
 they do not retain, but, on the contrary, leave behind them altogether. 
 But someone will say, " Since these words do not mean here what
 
 ON THE INSOLVENT LAW. 279 
 
 they meant in England, what, pray, is their exact meaning ?" Now, 
 this is a question which I cannot answer. When I have asked it my- 
 self, I have been told a great deal about what it does not mean- 
 But when we seek to pass from negatives to affirmatives, from 
 what it does not mean to what it does, we are stopped for 
 the want cf some intelligible sense. I remember, indeed, that 
 Mr. Justice Menzies threw out, in argument, something of a more 
 affirmative description than I had been accustomed to. " Nan 
 constat," said he, * but there might be payments not declared to be 
 fraudulent by the first part of this section, which yet are fraudulent 
 by common law, and these, if really and bona fide made there was 
 an intention to protect." But [ cannot admit this to be a satis- 
 factory solution. The common law is not more stringent than the 
 Ordinance. On the contrary, as I have already pointed out, it is 
 much less stringent. There is not (or if there be 1 have never 
 heard of it) any payment which could be made by a debtor to his 
 creditor which would be free from objection by the Insolvent Ordi- 
 nance, and which would yet be fraudulent at common law ; but 
 on the other hand there are many payments which would be 
 protected by common law which are fraudulent by the Insolvent 
 Ordinance. Again, therefore, I ask, first, has this clause any meaning 
 at all ? Secondly, if it have no meaning, what business has it there ? 
 And, thirdly, if it have a meaning, what is it ? But waiving further 
 argument upon a point which I have only discussed at so much 
 length because I know that it has excited amongst argumentative 
 persons a good deal of attention, I would call upon this Council 
 to say whether it is satisfied with the law as it has been this 
 day disclosed ? Sir, I venture to assume that it is not satis- 
 fied with it ; and in determining what alterations it may be 
 expedient to introduce it will be proper to take a cursory 
 view of foreign legislation. We shall find, in the principles 
 which obtain in the more important of the mercantile com- 
 munities but little uniformity. By the law of France, according 
 to Pardessus, whom I have consulted, alienations, as we should 
 say, are reducible if within ten days of the cessation of pay- 
 ment ; but payments of debts actually due, in the common course
 
 280 ON THE INSOLVENT LAW. 
 
 of business, are good to the very last. Of the law of modern 
 Holland I can only speak from the information of a friend who 
 consulted for me the " Koopman's Handboek." And far as I can 
 learn payments may be set aside if made within forty days of seques- 
 tration, alienations if within sixty days, and in case of the creditor 
 being related to the insolvent a still longer period is allowed. 
 It would appear that the only test of invalidity is time, but I speak 
 with that degree of uncertainty which arises from the fact that I 
 am not acquainted with the law in question from personal exami- 
 nation. Turning to Scotland, we find that the subject now in 
 hand is regulated by two statutes, one, the second branch of 
 the Act of 1621, and the other the Act of 1696. These enact- 
 ments present many considerations on which we need not 
 dwell, and it may suffice to say that neither of them has any 
 operation upon payments in cash. If a payment in cash be not made 
 under circumstances which render it fraudulent at common law, it 
 is, in Scotland, unimpeachable. "The chief ground," says Bell-> 
 " for the omission of payments in the enumeration of acts challenge- 
 able on constructive brankruptcy most probably was, that payments 
 being the ordinary way of discharging obligations, and which does 
 not naturally suggest the idea of embarrassment or insolvency, it 
 was right to hold it as effectual, unless proved to be fraudulent, or 
 subsequent to notice of the bankrupt's situation." With regard to 
 alienations in favour of creditors, they are void if voluntary and made 
 within sixty days before becoming bankrnpt. There is, in the law 
 of Scotland, no provision akin to our knowledge of insolvency, which, 
 under the Act of 1696, can carry the avoidance beyond the sixty days ; 
 and the Act of 1621 avoids nothing except in favour of a creditor 
 who has actually commenced his action, and then only avoids 
 what has been alienated since diligence begun. The aliena- 
 tions set aside must be voluntarily as well as made within the sixty 
 days. How far the word voluntarily in the Act of 1696 implies an 
 intention to prefer, or how far it may be held to embrace all acts 
 not legally compelled, I have no time to discuss. <f The plain intend- 
 ment of the Act of 1696," says Bell again, " was to comprehend all 
 conveyances made to a creditor if directly or indirectly intended to
 
 ON THE INSOLVENT LAW. 
 
 confer on him a preference over other creditors." Here this learned 
 and very accurate author seems to ascribe to the law a hostility, to 
 acts intended to prefer, and not to acts also which merely have 
 the effect so to do. I am the more disposed to think that an in- 
 tention on the part of the debtor is the thing prohibited by the 
 Scotch law, because conveyances made in the usual course of 
 trade are held to be exempted from the statute. Now, if the 
 effect, and not the intention, were the object of the law, an 
 exemption of transactions in the usual course of trade would be 
 idle and repugnant, for, so far as the effect is concerned, a creditor 
 may be preferred in the usual course of trade just as much as in 
 the most unusual ; though, in regard to the intention, there is a 
 wide difference indeed. But declining to pursue this topic, I have 
 simply to remind the Council that, by the law of Scotland, all pay- 
 ments of cash are good down to the bankruptcy, and no alienations 
 bad, except voluntary alienations made to creditors within sixty 
 days of that event. If we look to America, we shall find the doc- 
 trine of the United States embodied in their recent Act. In that 
 Act, zjth Congress, sec. I, chap. 9, section 2, the following pro- 
 vision occurs : 
 
 "And be it further enacted that all future payments, securities 
 conveyances, or transfers of property in contemplation of bankruptcy, 
 and for the purpose of giving any creditor, endorser, surety, or 
 other person, any preference or priority over the general creditor, 
 of such bankrupt * * shall be deemed utterly void and a 
 
 fraud upon this Act." 
 
 Here the contemplation of bankruptcy and' the corrupt intention- 
 of the bankrupt are clearly recognized and rendered indispensable. 
 We come now, Sir, to the law of England. It is, in substance, the 
 law of America, as I have just described that law. The legislation 
 of the States is founded upon the well-established English doctrines. 
 By the law of England, as I understood it, two conditions are neces- 
 sary to constitute an undue preference ; one, a contemplation of 
 bankruptcy, and the other, a purpose or intention in the mind of 
 the debtor to give the creditor a preference. Let either of these 
 conditions fail, and there is in England no preference. The cases
 
 282 ON THE INSOLVENT LAW. 
 
 in which this principle is recognized are far too numerous to quote, 
 and I shall merely read a paragraph from the last book on Nisi 
 Prius ; 
 
 " To constitute a fraudulent preference, so as to avoid a payment 
 made by a trader, it must be a voluntary preference, and made in 
 actual contemplation of bankruptcy, it is not enough to show that 
 the party was in such a state of insolvency and embarrassment as 
 to render bankruptcy a probable event." Stephen's N. P., vol. I, 
 p. 640, quoting jltkimon vs. Brindall, 2 Bing, N. C., 225. 
 
 This author gives a very modern case. The doctrine involved 
 will receive additional illustration from two decisions of Lord 
 Mansfield, to which I shall hereafter direct the particular attention 
 of the Council. Without, therefore, pressing the matter further 
 just at present, I shall take the opportunity which is afforded me 
 by this reference to the English law to answer the question put 
 some time ago by my hon. friend opposite (Mr. Ross). He wishes 
 to know whether the law of England would have decided the cases 
 relative to Jaffray's estate in the same manner in which they were 
 decided by the Supreme Court. The Chief Justice in giving 
 judgment in the case of Trustees of J affray vs. Christian seems to 
 say it would. His language upon the point is this : 
 
 " Much as has been said upon the English law in application to 
 the present action, I am myself satisfied that under the 6th Geo. 
 IV., c. 1 6, the defendant could not retain this money, because the 
 proof in the case would have been sufficient to make it a fraudulent 
 preference on the part of the insolvent, and therefore unprotected 
 by that enactment." 
 
 In the face of such a statement of the English law I hesitate to 
 advance an opposite opinion. But I am unable, I confess, to 
 adopt the views of the Chief Justice. It was admitted that there 
 was no intention on the part of Jaffray to give Christian a preference. 
 He did not know that Christian was his creditor. What he did 
 was in the common course of trade. I may be wrong, but as at 
 present advised I should certainly say Christian would, in England, 
 have retained the money. I have thus, Sir, laid before the Council 
 the rules adopted in different countries. Those rules, as I already
 
 ON THE INSOLVENT LAW. 283 
 
 intimated, are by no means uniform or consistent. But none of 
 them, it will be observed (with the exception, perhaps, of Holland)* 
 are so stringent in their operation as those vvhich now prevail in 
 this Colony. In this state of uncertainty, and placed as we are 
 amidst conflicting precedents, we shall do well to retire a little 
 from the consideration of what is actually, in various places, found 
 to exist, and endeavour to ascertain, by the application of first 
 principles, what should be the leading object of our legislation. 
 If we can once settle the end to be pursued, the task of devising 
 the means to attain that end will be comparatively an easy one. I 
 have lately heard something from the Court to the effect that the 
 object of the law was to collect for the creditors of the insolvent 
 estate the largest possible amount of assets. But this is certainly 
 not so. If it were, we should go much more sweepingly to work. 
 We should set aside all transactions for the last five years, or even 
 declare the effect of insolvency to be to bring all creditors into 
 community from the time the insolvent began business, recover 
 all alienations and payments ever made, and proceed to distribute 
 upon a new principle. But everybody feels that such a course 
 would never do. The added assets would be much too dearly 
 bought. Well, then, if this be not the proper object of the law, 
 what is it ? I answer boldly to check fraud and partiality, and 
 nothing else. If we did not find that men tottering upon the verge 
 of insolvency are often tempted to give undue advantages to 
 relatives and friends, and to take upon themselves to defeat, by 
 favouritism, that equal justice which the law encourages, we should 
 have no ground whatever for any legislation. That one creditor 
 is found to have come better off than the other creditors is nothing, 
 provided his advantage have been obtained consequently and not 
 intentionally. Time and chance happen unto all men, and 
 especially to men in trade. Those who play at bowls must 
 expect rubbers. One man gets, in instances, a better price for his 
 merchandize than his neighbour does. In some other instances, 
 the man who has had worst luck in that transaction chances 
 to get his money out cf some common debtor who is in diffi- 
 culties, when the party who was successful before remains un-
 
 284 ON THE INSOLVENT LAW. 
 
 paid. The cautious man, content with certain gains and small, deals 
 for cash. The confident man, determined to do a dashing business, 
 gives credit freely. Sometimes one of these men succeeds best, and 
 sometimes the other ; all depends upon those accidents of busines 5 
 amongst which the coming safest out of an insolvent estate is one. 
 To equalise the condition of creditors, in such cases, is a wild and 
 visionary notion. But one thing we may do ;" we may discourage 
 intentional favouritism and fraud, and prevent insolvents from volun- 
 tarily distributing amongst their friends, or it may be their con- 
 federates, the assets which should go amongst the creditors at large. 
 Look, then, to the motive of the man. If the purpose be to give a pre- 
 ference, avoid the act. If that purpose be absent, do not interfere. 
 Upon this point Mr. Justice Menzies holds an opposite opinion, main- 
 taining that you should regard alone the effect of the act, and not 
 at all the motive, purpose, or the intention with which it was per- 
 formed. In his last observations, page 14, he says: 
 
 " If the question were whether an insolvent should or should 
 not be punished for doing any act which ha d the effect of bene- 
 fitting one creditor at the expense or to the prejudice of other 
 creditors, the motive or intention with which the act was done by 
 him might with perfect propriety, and ought to be, made the 
 criterion by which his liability to be punished ought to be deter_ 
 mined. But I have been unable to discover any reason in respect of 
 which the motive or intention with which any act was done by 
 an insolvent, and not the effect which was the necessary conse- 
 quence of the act, should be made the criterion by which it should 
 be determined whether such act, in a question with other creditors 
 who have been prejudiced thereby, should or should not be set 
 aside." 
 
 It appears to me, Sir, that this reasoning is not hard to answer. In 
 truth it is not so much an argument to prove that what has the effect 
 to prefer should be set aside, as an argument to prove that it is 
 unreasonable to set aside an act merely on account of the insolvent's 
 bad intention. But no objection against causing the validity of the 
 payment to depend upon the state of the insolvent's mind when 
 making it can be consistently urged by any advocate of the
 
 ON THE INSOLVENT LAW. 285 
 
 existing law. Why is it necessary that the debtor should 
 know himself to be insolvent ? Why not have declared frau- 
 dulent all payments made by any person being, at the time, 
 actually insolvent ? This is done by this very Ordinance as altered 
 for, and enacted in, New South Wales. It might have been done 
 here. Can Mr. Menzies discover any reason in respect of which 
 the state of mind in which any act is done by an insolvent, and not 
 the effect of that act (which effect is just the same whatever the 
 insolvent's state of mind may be), should be the criterion 
 for determining whether that act should or should not 
 be set aside ? When I have had occasion in Court to 
 advert to the necessity of knowledge on the part of the insol- 
 vent, the learned Judge has readily admitted that necessity. He 
 has admitted that although the man were, in point of fact, insolvent 
 one hundred times over, sunk in his fortunes beyond all possibility 
 of rising, yet if he did not know the state of affairs, his payments are 
 as valid as if he were backed by the Bank of Amsterdam. Under 
 these circumstances, how can he maintain that the effect of the act, 
 and that alone, is the thing to be regarded ? Does not the effect of 
 the act depend upon the state of the insolvent's affairs, and not upon 
 his knowledge of that state ? Mr. Menzies, himself, has often stated 
 the reason of the present law. When men once know themselves 
 to be insolvent, says he, the law presumes it to be their duty to 
 surrender their estates, and when they neglect that duty, the law 
 interposes to put things, as much as possible, in the same state as if 
 the duty had been performed. The policy of such a principle is 
 very doubtful. Many a man in great difficulties has hoped on, and 
 struggled on, and at last made his fortune ; and I am not friendly 
 to the system of coaxing people to give up their estates. But I 
 waive all such considerations, and ask whether it is not as reason- 
 able to set aside a transaction because in it the insolvent trans- 
 gressed the duty of not favouring particular creditors, as to set aside 
 a transaction because in it the insolvent transgressed the duty of 
 not surrendering his estate ? Is it not infinitely more reasonable to 
 set aside a transaction upon the first ground than upon the second ? 
 To say that it is the easier to prove that a debtor knows himself to
 
 286 ON THE INSOLVENT LAW. 
 
 be insolvent when he makes a given payment than that he intends 
 to prefer (which, by the bye, I don't admit), is not to the present 
 point. That point is this, that Mr. Menzies cannot consistently 
 object to connect the validity of a payment to a creditor with the 
 state and condition of the debtor's mind, since it is as much con- 
 nected with that state and condition in Ordinance No. 64 as in 
 the Bill now before the Council. The test, in both instances, is a 
 moral test. The difference is, that I prefer one moral test and 
 Mr. Menzies another. But the effect of the act, as separate from 
 the moral test, is no more his criterion than mine. And here, Sir, 
 I am reminded of the old adage that extremes meet. The 
 argument which I have been just combating, and which would set 
 aside transactions irrespective of the motive in the mind of the 
 insolvent, is the same argument which is adduced to sustain all 
 transactions in which actual collusion between the insolvent and the 
 creditor cannot be substantiated. What have the creditors' pre- 
 judiced, says one party, to do with the insolvent's motive ? Nothing 
 whatever, therefore set aside what has had the effect to 
 prejudice them. What has the creditor paid, says another 
 party, to do with the insolvent's motive ? Nothing what- 
 ever, therefore support what is, as far as he is concerned, a fair 
 transaction. Here you perceive that my hon. friend, the Auditor- 
 General, and my hon. friend opposite (Mr. H. Cloete) occupy 
 common ground with Mr. Menzies, though moving from it in a 
 precisely opposite direction. But as against both parties, I main- 
 tain that the motive of the man is the thing to be got at 
 and that upon that, and that alone, can the validity of the tran- 
 saction properly depend. When there had been no motive 
 to prefer, other creditors, no doubt, may lose ; but if they lose they 
 a re injured, for such a loss is a contingency upon which all creditors 
 must calculate. And on the other hand, where there has been an 
 intention to prefer, there is little hardship in requiring the creditor 
 to refund, since, even if there have been no collusion, the pre- 
 ference being the voluntary act of the insolvent, may be considered^ 
 to a certain extent, in the light of a donation, and so comes within 
 the scope of some reasonable principles which have already been
 
 ON THE INSOLVENT LAW. 287 
 
 explained. The money, indeed, was due. But the preference 
 was a gift, and may be viewed in the same light. For my own part, 
 I do not see how you can either dispense with the motive of the 
 insolvent himself, or require actual collusion between the insolvent 
 and the creditor, without admitting very great, though precisely 
 opposite evils. But general propositions do not satisfy. Let us, 
 then, consider two very important decisions of Lord MANSFIELD, 
 reported in Cowper, which I hold in my hand. The circumstances 
 of one of these cases will serve to illustrate a good deal of what 
 I have been saying, while the observations of the Lord Chief 
 Justice upon both are pregnant with instructtion. The first case 
 to which I shall refer is that of Harman and Others, Assignees 
 of Fordyce, vs, Fisbar, at page 117. The following are the circum- 
 stances as stated upon the case reserved for the opinion of the 
 Court : " Fishar was a creditor of the partnership of Fordyce &Co., 
 and on many occasions had done them many acts of friendship, 
 and being already a creditor for 1,300, on the 6th June, 1772, 
 paid int;o the shop of Fordyce & Co., as bankers, the further sum 
 of 7,000, which he had borrowed for the purpose of accommoda- 
 ting the shop during the holidays, and which he had written in his 
 book in the usual manner, telling the clerk to whom he paid the 
 money in that he should not draw it out before the Friday following, 
 which they were told accordingly. On the pth June, Fordyce sat 
 up all night, settling his books and affairs in contemplation of 
 absconding, and having in his separate right the two bills of exchange 
 for which the action was brought, about five o'clock in the morning 
 he enclosed them to Mr. Fishar in a letter, as follows : ' Mr. 
 Fordyce, conceiving that the money lodged by Mr. Fishar with 
 his house on Saturday last was a sum which, perhaps, some pains 
 were taken to place there, he has the honour to show him that pre- 
 ference which he conceives is certainly his due.' The letter was 
 given to a clerk to deliver, who at ten o'clock went with it to 
 Fishar, who was from home, and who was not to return that day. 
 The clerk brought back the letter. At half-past eleven o'clock a com- 
 mission issued upon the act of Fordyce in absconding. Next day 
 James, a partner of Fordyce's, sent for Fishar and gave him the letter,
 
 288 ON THE INSOLVENT LAW. 
 
 who, having read the same to the company present, took the notes 
 away with him. Whether the plaintiffs as assignees were entitled 
 to recover in this action was the question for the opinion of the 
 -court." The case was twice argued, by Butler and Lee for the 
 plaintiffs, and by Allen and Dunning for the defendant. I omit all 
 reference to the arguments of counsel and come at once to the 
 luminous judgment of Lord MANSFIELD, of which I shall read a 
 few of the more important portions : " The defendant, Mr. Fishar, 
 is certainly a very meritorious creditor of Mr. Fordyce, and in 
 this last transaction did him a very great act of friendship. I have 
 therefore been very sorry, as far as one can be said to be sorry 
 in the administration of justice, that I could not see in this case 
 any circumstances which could give rise to a question. * * * * 
 There has been much argument upon a general question : 
 ' Whether a trader in contemplation of bankruptcy can give a pre- 
 ference to a bona fide creditor ?' Perhaps the stating it as a general 
 question involves a great impropriety, because no trader can do 
 an act of fraud contrary to the spirit of the bankrupt laws and to 
 the injury of his creditors. In the case of Lorton vs. 
 
 Bartlett, decided in the Common Pleas, it was determined that, 
 though the act be complete,^/ If the mere and sole motive of the 
 trader were to give a preference, it shall be void. In that case posses- 
 sion of the goods assigned was taken by the the creditor, nor 
 bad be the least knowledge or suspicion of the insolvency. But the 
 material circumstances which made that a fraudulent act are these. 
 The creditor did not arrest, or threaten, or even call upon the 
 bankrupt for the money ; but the bankrupt of his own voluntary act 
 gave him the assignment. With what intent ? Why, to give him 
 a preference. Upon what was the opinion of the Court founded ? 
 Upon the trader's giving a preference, and upon his sole motive being 
 so to do. If he can give it to one he can give it to another, which 
 would establish this principle, that a bankrupt may apportion his 
 estate amongst his creditors just as he thinks proper. * * * * But 
 the present case affords no circumstances that can give rise to a 
 question. A trader at five o'clock in the morning, just going to 
 commit an act of bankruptcy, orders his servant to take certain bills
 
 ON THE INSOLVENT LAW. 289 
 
 to a creditor in discharge of a debt, pursuant to no contract, in 
 performance of no obligation, in no course of dealing, without the 
 privity of the creditor or call, on his part, for the money." His 
 Lordship gave judgment for the plaintiffs, and the three other 
 Judges concurred. The other case to which I desire to call the atten- 
 tion of the Council is that of Rust and Another vs. Cooper, 
 Cowper, page 629. It was a pretended sale of goods made in 
 satisfaction of a debt. I shall not trouble the Council with the 
 circumstances, which are rather complicated and not important. 
 In the course of his judgment, Lord MANSFIELD said : " How does 
 this case stand then ? Was there any application on the part of 
 the creditor ? Did the creditor demand payment ? Did he threaten 
 process if the bankrupt did not pay ? Not one of these circum- 
 stances appear. On the contrary, the whole was transacted 
 behind the back of the creditor. * * There is a fundamental 
 
 distinction between an act like this and an act done in the common 
 course of business. The statutes have relation back only to the act 
 of bankruptcy. And I consider that here there was no act of bank- 
 ruptcy till the z6th September, the bill of parcels having been de. 
 livered to Cooper on the 24th. If, in a fair course of business, a man 
 pays a creditor who comes to be paid, notwithstanding the debtor's 
 knowledge of his own affairs, or his intention to break, yet being a 
 fair transaction in the course of business, the payment is good, for 
 the preference is then got consequentially, not by design. It is not 
 the object, but the preference is obtained in consequence of the 
 payment being made at the time. Suppose a creditor presses hi s 
 debtor for payment, and the debtor makes a mortgage of his goods 
 and delivers possession, that is and at any time may be a transaction 
 in the common course of business, without the creditor's knowing 
 there is an act of bankruptcy in contemplation, and therefore good. 
 It is not to be affected by what passes in the mind of the bankrupt. 
 But in the present case there is not a single thing but what is a 
 step towards fraud and a proof of an intended preference" Sir, I have 
 gone so fully into those two cases because Lord MANSFIELD is 
 a great and venerable authority in mercantile law ; because the 
 cases are leading cases ; and because, making allowance for some 
 
 u
 
 290 
 
 ON THE INSOLVENT LAW. 
 
 temporary fluctuation, they seem to me to embody the doctrines 
 of the ablest English lawyers. I oppose those doctrines to bota the 
 classes of opponents with whom I am at issue. I oppose them to 
 Mr. MENZIES when he would seek to make the effect of the act 
 done and not the motive of the act done the test of stability. 
 Motive in preferences may be hard to judge of, but so is malice in 
 murder. I oppose the same doctrine to my honourable friends, 
 who seem to deny that the mere motive of the debtor 
 should ever deprive the creditor of the payment made. In certain 
 cases, indeed, it will not deprive him. Lord MANSFIELD says so, and 
 the reason of the thing is clear. But that we are to lay it down 
 that every alienation and payment is to stand good, unless besides the 
 intention to prefer upon the part of the debtor the trustee can prove 
 positive collusion between the debtor and the creditor, would go, I 
 think, too far. What collusion was there on the part of Fishar in the 
 first case quoted ? He knew nothing of what Fordyce was doing, 
 and was wholly passive from beginning to end. He was a meri- 
 torious creditor ; his debt was paid to him ; he did not forcibly reject 
 it, and that was all. Now are such payments to stand ? They will 
 stand if collusion is essential. They will not stand if the immoral 
 motive of the debtor considered as the sole cause of the act is to 
 be, of itself, a sufficient ground of invalidity. It may be said that 
 the act of receiving a payment, made not in the common course of 
 business, is proof of collusion. I scarcely think so. But agreeing as 
 I do to protect transactions in the usual course of trade and dealing, 
 if you agree to call every transaction out of that course collusive, our 
 difference would come to be more about words than things. But 
 I am for leaving all collusion out of the case, because, although 
 there will seldom be a distinct intention on the part of the debtor 
 to give the preference without some suspicion of connivance or 
 collusion on the part of the creditor receiving it, yet cases may occur 
 in which both circumstances will not co-exist, and, for the reasons 
 given, I see no hardship in requiring a man to refund a species of 
 donation. It would be to strain the meaning of the word col- 
 lusion, and palter with it in a double sense, to call everything col- 
 lusion where the debtor designs a preference for the creditor, and
 
 ON THE INSOLVENT LAW. 
 
 2 9 I 
 
 the creditor does not refuse the preference bestowed. Upon the 
 other hand, Mr. MENZIES goes to the opposite extreme. He does 
 not require collusion between both ; he does not require an inten- 
 tion on the part of either ; if the effect have been to prefer, no 
 matter what the intention, he is for setting the transaction aside. 
 Between these extremes we are safest in the middle. When you 
 can prove an intentional preference but can prove no collusion, 
 set the transaction aside and admit the creditor to prove his debt. 
 When you can prove collusion on the part of the creditor as well 
 as intention on the part of the debtor, set the transaction aside ; 
 anci do more, declare the fraudulent creditor to have forfeited his 
 debt for the benefit of the creditors in general whom he had 
 designed to cheat. But intention, purpose, design, these 1 con- 
 ceive are essential to the very nature of an undue preference. And 
 I cannot but think that Mr. MENZIES himself concedes the prin- 
 ciple. I have already discussed the inference to be drawn from the 
 provision of Ordinance 64 that the debtor must not merely be, 
 but must know himself to be, insolvent, in order to vitiate his pay- 
 ments. In pages 13 and 14 of his last remarks, the Judge seems 
 to admit, not merely that the insolvent should know himself to be 
 insolvent, but that he should also know that the effect of his act 
 would be to prefer. As the law stands, this second degree of know- 
 ledge is not required, and it is something widely different from the 
 first. Indeed, it comes very close to an intended preference, for 
 a consequence clearly foreseen will frequently lead to the con- 
 clusion that the intention was to bring about the consequence so 
 foreseen, and at all events it proves indisputably that the insolvent's 
 state of mind is the matter to be determined. Again, it will be 
 seen at page 1 1 that the Judge agrees in the propriety of protecting 
 payments in the usual and ordinary course of trade or business. 
 But why ? Has not a payment made by a man who knows himself 
 to be insolvent in the usual course of business just as much effect 
 in preferring as any other payment ? To say that payments in the 
 usual and ordinary course of trade and business should be protected 
 because there is not discoverable in them any intention to prefer 
 is a good reason. But it is a reason which the learned Judge 
 
 u 2
 
 292 ON THE INSOLVENT LAW. 
 
 cannot consistently advance. I am asked, however, to define 
 the nature of the corrupt intention, and to state distinctly what 
 sort of evidence will prove it. The great length to which my 
 observations have already extended warns me to be brief here, 
 and not to dash into a large discussion. By an intention to pre- 
 fer I mean, and I conceive the law of England means, a volun- 
 tary and spontaneous design to give to one creditor what would 
 not be given to other creditors similarly situated a preference 
 contemplated as such, and as such constituting the motive of the 
 act a principle of choice and selection extended towards favoured 
 parties an advantage bestowed by the insolvent by an act in 
 which he has really been, directly or indirectly, the first mover. 
 The existence of this criminal intention is a question cf fact, to be 
 tried by the same rules of evidence as regulate the proof of other 
 criminal intentions. Alienations and payments made not in the 
 usual course of trade or business would, of course, if unexplained, 
 be pregnant evidence of an intention to prefer. Let us take the 
 case of a bank of issue and deposit under a heavy run. It often 
 happens that, from one reason or other, or from no reason at all, 
 such a bank continues paying long after it knows itself to be insol- 
 vent, nay, long after it contemplates bankruptcy as inevitable. 
 While matters are in this state the doors are open, and the public, 
 at no small loss of temper and coat tails, keeps rushing in to get 
 its money. Orders are- issued to the messenger to be ready to clap 
 up the shutters in an hour. But during that hour numbers come 
 and go, and change their notes, and draw out their deposits. I 
 say that the knowledge of the bankers that they are insolvent the 
 contemplation of the bankers that they must stop the actual, 
 arrangements made by the bankers for shutting up are nothing to 
 the public who, in the fair course of trade, are pressing for pay- 
 ment and getting paid. Desirous to do the best they can for 
 themselves and their own interests, they are not to be affected, as 
 Lord MANSFIELD says in Rust vs. Cooper, by what is passing in the 
 bankrupt's mind. But suppose that, after orders given to close the 
 bank, the bankers send in an envelope to a particular creditor the 
 amount of his deposit, or can be proved to have despatched a
 
 OX THE INSOLVENT LAW. 293 
 
 messenger to a particular creditor, telling him to come in haste for 
 a deposit which they have kept back and mean to pay, should such a 
 proceeding be allowed to stand ? The payments at the desk to the 
 alarmed creditors are good, because they were in the common 
 course of business ; the knowledge of insolvency, or the contem- 
 plation of it, should not affect it. But the payment sent in the 
 envelope is bad, because it was a spontaneous preference on the 
 part of the debtor, and not in the common course of business. And 
 the payment obtained by the creditor with notice of the corrupt 
 preference is bad, and more than that, it is a ground for forfeiture 
 of debt, because the creditor acceded to, and actively adopted, the 
 fraud of the debtor, and justly deserves that some penalty be imposed. 
 The views which I am advocating strongly tend to the protection 
 of trade and dealing, particularly where they are viewed in com- 
 parison with the principles of the existing law, which seem to me 
 to rate much too low the evils of annulling past transactions. I have 
 heard it said, Oh ! where's the hardship ? Does not the creditor who 
 refunds come in for his proportion of the increased assets ? True. But 
 still he must refund, and that I hold to be, in itself, a hardship of vast 
 magnitude. " The greatest happiness of the greatest number " may do 
 very well for Benthamto theorize about, but the evil to the individual 
 who is required to restore what he has received may far outweigh the 
 benefit, when diminished by division, which the great body of 
 the creditors acquire by the reduction of the payment. Between 
 the hardship of never getting your money at all, and the hardship 
 of being compelled, after an interval of more or less duration, to 
 refund your money which has once been paid, the difference is im- 
 mense. In the one case you know the worst at once and arrange 
 accordingly. In the other case you may have invested the money 
 where you cannot realize it on the sudden, or you may have spent 
 it out and out, never to realize it at all. But still the summons 
 issues ; the cause comes off; the judgment is given ; and if your 
 assets immediately available are not sufficient for the payment 01 
 the amount, then you yourself become in turn, according to Mr. 
 Justice MENZIES, an insolvent person, and can, being such, make 
 no valid payments ; and so the game goes on, each person as he
 
 294 ON THE INSOLVENT LAW. 
 
 falls, as in the child's play called the King of Prussia's exercise, 
 knocking down his neighbour, until a state of general prostration 
 is found to have resulted. 
 
 Mr. Ross : Probably nine-tenths of the creditors will be absent 
 from the colony, and it is only the unfortunate remainder that are 
 called upon to pay. 
 
 ATTORNEY-GENERAL : 1 have already adverted to that contin- 
 gency, which should not be altogether overlooked. Sir, viewing 
 the position in which we are placed, and the various systems which 
 are elsewhere established, I recommend the adoption of the 
 English principle, as being, upon the whole, the best we could 
 select. But I am not altogether satisfied with the strictness with 
 which the English law requires proof that the bankrupt contem- 
 plated bankruptcy when he gave the voluntary preference. Mr. 
 MENZIES has justly remarked in his recent observations, that if the 
 contemplation of a sequestration be essential, payments made with 
 the most barefaced intention to prefer may hold good. Take this 
 case. I, knowing myself" to be insolvent, set about arranging a 
 composition with my creditors. I offer ostensibly five shillings in 
 the pound. But to the Treasurer-General, who sits beside me 
 and is a favourite, 1 give twenty shillings on his debt. Some 
 creditor, sharper than the rest my friend the Collector of Customs 
 would be too simple for such a thing finds out what I have been 
 doing for the Treasurer, declares off, blows up the composition, 
 and so I surrender my estate. Is, then, the Treasurer to keep the 
 money which he had received ? He will keep it if contemplation 
 of sequestration be a condition of restitution ; for, although I in- 
 tended to cheat my other creditors when I favoured him, I 
 intended to cheat them contemplating a composition and not a 
 sequestration. For my own part, I see no good reason for settling 
 very nicely the state in which the insolvent's circumstances must 
 be when he makes a payment tainted by a corrupt design to give 
 a preference. I am not sure, indeed, that you might not rest the 
 whole validity of the transaction upon the proof of that corrupt 
 design. Where that design exists conscious insolvency must 
 exist as well. To talk of Coutts, the banker, intending in his
 
 ON THE INSOLVENT LAW. 295 
 
 lifetime to prefer a particular creditor by paying him, under any 
 circumstances, either in the course of trade or out of it, his just 
 debt, would have been sheer nonsense. Why ? Because Coutts 
 was worth a million or two above all his debts. Where there is 
 plenty for all there can be no preference of any. Upon the other 
 hand, a payment made whilst the party is proved to have contem- 
 plated a sequestration of his estate raises a strong presumption of 
 intended preference. The two matters are so connected with 
 each other that one of them being discovered the other will 
 probably be found in company. But still, for the reasons already 
 glanced at, I should have considered that, so long as a corrupt in- 
 tention to prefer was required by law in order to avoid a pre- 
 ference, the other condition might have been left to general 
 words, such as " being insolvent," or " incapable of paying debts due 
 and demanded," or some similar expressions not importing that ex- 
 clusive reference to a particular mode of winding up the 
 deficient estate which is involved in the term " contem- 
 plating a sequestration." But I do not feel that I ought 
 to press such a view against the opinions of men of more 
 mercantile experience than myself, and besides I am anxious, 
 by sticking to the English principle, to afford to the administration 
 of the law in this Colony the advantage of the English decisions. 
 Where we conveniently can, we ought, in such branches of the 
 law as that which we are now debating, to follow in the footsteps 
 of Great Britain. I am, therefore, an advocate for the introduction 
 of the English principle in regard to undue preferences. I have 
 now done. I have shown you what the present law is, and how it 
 operates. I have shown you that it is of a much more destructive 
 character than any similar law elsewhere established. I have shown 
 you in particular how much at variance it is with the principles 
 of the greatest commercial country in the world, England. I have 
 shown you that it is only to be restored to a proper state by applying 
 the moral test in determining the validity of transactions between 
 creditors and debtors. T have shown you that that moral test must 
 be held to be the mind and motive with which the debtor acts 
 And if it be said, as it may be said, and may be said with justice,
 
 296 ON THE DUTCH REFORMED CHURCH BILL. 
 
 that the proposed alterations will furnish additional facilities for 
 fraud, I can only answer that all legislation upon such subjects 
 must be determined by balancing opposite evils, and that, in my 
 opinion, the evils of occasional fraud are more tolerable than those 
 of perpetual uncertainty. 
 
 ON THE DUTCH REFORMED CHURCH 
 BILL. 
 
 \Legislalive Council, November 7, 1843.] 
 
 The ATTORNEY-GENERAL presented a petition relative to the 
 Dutch Church Bill from the Presbytery of Cape Town, which 
 he moved should be read. 
 
 ATTORNEY-GENERAL : Before proceeding to the second reading 
 of this Bill, I should like to say a word or two, and but a word or 
 two, with reference to the memorial of the Presbytery of Cape Town. 
 In carrying any measure connected with the Dutch Reformed 
 Church, I can safely say for myself, and as safely for your Excellency 
 and this Council, that the great and paramount object has been to 
 give, as much as possible, contentment to the members of that re- 
 spectable community ; and it was only for the purpose of dispelling 
 the mistiness and haze which hung over the subject of Church Law 
 of bringing into light, and placing in a fit position, important points 
 involved in some obscurity that, with your Excellency's approba- 
 tion, I undertook to frame the Ordinance which is now upon the 
 table. Under these circumstances, it has been to me a source of 
 sincere gratification that the principles of that Ordinance have, in 
 general, met with the approbation of the Church for whose benefit 
 ;t was intended. Dr. Robertson has, in his judicious observations, 
 referred to some points of detail in regard to which he suggests 
 improvements, to some typographical errors which have crept into
 
 ON THE DUTCH REFORMED CHURCH BILL. 
 
 the printed draft, and to one or two points of more importance ; 
 while the Cape Town Presbytery, in their memorial, seem to take 
 new ground, and to put foward principles of which I had not 
 previously been aware of the existence. The leading topic 
 embraced in the memorial is one upon which I need not dwell, 
 because my honourable friend the Auditor-General, who knows 
 the constitution of the Dutch Reformed Church right well, and is 
 perfectly acquainted with the relation in which it stands to 
 Government, has declined to support or countenance the view 
 taken by the Presbytery, although friendly to the general spirit of 
 the memorial itself. I understand the Cape Town Presbytery to 
 draw a distinction between what they call fundamental laws and 
 laws not fundamental ; to maintain that the laws which regulate 
 the connection between the Dutch Reformed Church and the 
 Government of this Colony are fundamental laws, and to maintain 
 that all fundamental laws are withdrawn from the legislative 
 powers of this Council, and are matters with which we have no 
 authority to interfere. I am not able, as at present advised, to 
 concur in this opinion. I do not know where the Reverend Pres- 
 bytery gets its notion of a fundamental law. I see no reason why 
 the Church Regulations of Commissioner General De Mist should 
 not be considered as much within the legislative power and province 
 of this Council as any other law or ordinance of that gentleman, 
 his Regulations for the Orphan Chamber, or any other of his 
 legislative acts. The Presbytery of Cape Town has not adduced 
 any legal reasoning in support of the legal opinion which it 
 advances ; and, under these circumstances, I can only declare 
 my dissent from that opinion, and recommend your Excellency 
 and the Council to await the report of the learned Judges, who 
 will, of course, declare that there is a legal impediment to the work- 
 ing of this Ordinance, in case the passing of such- an Ordinance 
 transcends the powers of this body. If, upon the other hand, the 
 Judges should report no impediment, I should say that we may pro- 
 ceed without any apprehension, and pass a law which is so very 
 much required. Turning now from this topic, I should wish to 
 advert to a somewhat important point referred to in Dr. Robertson's
 
 ON THE DUTCH REFORMED CHURCH BILL. 
 
 letter to myself. It will be observed that the 6th section ct 
 the Ordinance, while declaring the right of the Governor to present 
 to vacant congregations, restricts his choice of presentees to the 
 ministers of the Dutch Reformed Church. Dr. Robertson doubts 
 the expediency of this restriction as it stands. But some limit there 
 must be. We must all concur in that. No one can maintain the 
 right of the Governor to send an Episcopalian to preach in a Pres- 
 byterian pulpit, or send an Arminian to preach in a Calvinistic pulpit, 
 or send an Arian to preach in a Trinitarian pulpit ; and, upon this 
 principle, it appeared to me that the Governor, in supplying 
 vacancies in the Dutch Reformed Church, might properly be con- 
 fined to choose from amongst the ministers of that Church. In 
 questioning the propriety of this provision, Dr. Robertson adverts 
 to the fact that circumstances have heretofore led to the introduction 
 into several colonial pulpits of ministers belonging to the Church of 
 Scotland, and that the cause of godliness and morality has not suffered 
 in their hands. Sir, I think I shall carry with me the unanimou s 
 concurrence of this Council, and be supported by the opinion of the 
 great body of the Dutch Reformed Church community out of doors 
 who are of colonial birth, when I say that the men who have been 
 received from the Church of Scotland have devoted themselves to the 
 work of the ministry and the service of their flocks with a degree 
 of zeal and earnestness which have not been without their reward, 
 and which have commanded the love and veneration of the people 
 committed to their care. Your Excellency may, perhaps, remember 
 the striking evidence of this fact which was presented in the 
 manifesto of the farmers at Nacal then in hostility to Her Majesty, 
 but now happily submissive to her rule when, in disclaiming the 
 charge of regarding all natives of Great Britain with jealousy and 
 dislike, they called upon the Scotch ministers who had lived amongst 
 them while in the Colony to bear witness that they had never 
 failed to evince towards those pastors that degree of confidence, 
 cordiality, and esteem which they so well deserved. I am glad to 
 bear my testimony to the high character which the ministers from 
 Scotland have, as far as my information reaches, always maintained ; 
 and I am not aware that any one of them has superior claims to
 
 OX THE DUTCH REFORMED CHURCH BILL. 299 
 
 general respect than the writer of this letter, Dr. Robertson, himself. 
 This is my opinion. But in expressing it, I have said nothing 
 which should preclude me from declaring another opinion, and it 
 is this, that were I Governor of this Colony, and invested with the 
 power of presenting to a vacant congregation, 1 should, of course, 
 present no unfit man ; but, while rejecting every unfit man, I should 
 feel it to be a duty, amounting to a moral obligation, to show towards 
 colonists, duly qualified by life and learning, a decided preference. 
 The GOVERNOR : Hear, hear. 
 
 ATTORNEY- GENERAL : I should feel that in reference to parents 
 who had, perhaps, made sacrifices to gratify the generous ambition 
 of giving their sons a European education, it was the smallest 
 reward that could legitimately be bestowed to put those sons to 
 labour amongst their own people and in their own colony, in 
 preference to ministers, however excellent, who had no such claims. 
 The GOVERNOR : Hear, hear. 
 
 ATTORNEY-GENERAL : The necessity which formerly led to the 
 presentation of Scottish clergymen is not, perhaps, likely to recur > 
 and from the custom which prevails for young men not to confine 
 their studies to the universities of Holland, but to devote a portion 
 of their curriculum to Scotland, they naturally acquire, not merely 
 new ideas, but such an acquaintance with the English language 
 as enables them, when necessary, to perform their ministrations 
 in that tongue. The duty of preaching now and then in 
 English should never be neglected where there is any portion 
 of the congregation likely to be edified by the practice. 
 But this is a duty which, I should hope, our young colonial 
 clergymen are, for the most part, fully qualified to discharge. If 
 I may quote a living instance, I would say that 1 heard, some time 
 since, in the Scotch Church of this town, a discourse from a colonist, 
 the Rev. Mr Berrange, couched in as elegant, racy, and idiomatic 
 English as any man could desire to hear, and characterized, at 
 the same time, by a reach of thought and degree of eloquence 
 which would have done credit to any pulpit in Scotland, and 
 might have been listened to with pleasure and advantage even by 
 a people accustomed to the greatest preacher since St. Paul, Dr.
 
 3OO ON THE DUTCH REFORMED CHURCH BILL. 
 
 Chalmers. But while I conceive that colonists are entitled to a 
 preference, and while I entertain the opinion that they will be 
 found qualified, both intellectually and morally, in a manner to 
 justify that preference, I would not cramp, or cabin in, the Church 
 itself. The Church should be at liberty to recognise the ministers 
 of any sister churches which she may select. The Church of 
 England recognizes the priests of the Church of Rome, although 
 the latter Church does not, indeed, return the compliment. The 
 Presbyterian body of the north of Ireland recognize licentiates of 
 the Church of Scotland as eligible to be called as ministers. On 
 the continent there are Protestant Churches which are so much 
 united in doctrine, discipline, and spirit that they mutually re- 
 cognize the ministers belonging to each other. The Dutch 
 Reformed Church may, perhaps, see cause to act upon some similar 
 plan or principle. It may see cause to declare, for instance, that 
 all ministers belonging to the Church of Scotland (either the " Free 
 Protesting Church," or the party whom their opponents call the 
 " Residuary Church," and who call themselves the Primitive and 
 Proper Church) shall be eligible to be appointed to fill the 
 vacancies within its bounds. But 1 should not take this matter 
 out of the hands of the Church itself. The Governor should be 
 entitled to appoint any ministers duly qualified according to the 
 rules and regulations of the Church, but no other ; and I therefore 
 propose to alter the conclusion of section 6 in conformity with 
 this view. By this means, free and full authority in spiritual things 
 is preserved to the Church, and all intrusion effectually excluded ; 
 while, upon the other hand, the Governor will possess all that any 
 patron can ever pretend to claim, the right of presenting parties 
 declared competent by the authority of the Church. While on my 
 legs, I may as well advert to another alteration which I mean to 
 propose. It is connected with the yth section. For the preser- 
 vation of pure doctrine and Church identity that section requires 
 adherence to the formulas of faith now received and professed by 
 the Dutch Reformed Church. When I asked my reverend friend, 
 Mr. Faure, whether or not this phrase " formulas of faith" might 
 not, in course of time, become uncertain, he replied that such an
 
 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 30 1 
 
 event was quite impossible, as there was no man, woman, or child 
 who did not understand perfectly the meaning intended to be 
 conveyed. But I have since ihen seen some reason to question the 
 sufficiency of the test of doctrine as at first laid down, and I pro- 
 pose to make it more definite and distinc;. I think I may state 
 with safety that the Heidelberg Catechism and the Confession of 
 the Synod of Dort (although I do not believe them myself; constitute 
 the clear and undeniable standards of the Dutch Reformed 
 Church, and as such I mean to move their insertion in the 
 Ordinance we need not specify in what year the Synod sat it was 
 that famous Synod that sent Barneveldt to the scaffold and estab- 
 lished the five points of Calvin and it appears that by an 
 explicit mention of those authorities we shall shut out the possi- 
 bility of such a state of things as may be witnessed in England, 
 where the fluctuations of religious opinion have ended in placing 
 much property in chancery, in putting much money into lawyer's 
 pockets, in seriously inconveniencing the suitors, and in doing but 
 small service to the cause of Christian charity and good will. 
 
 ON THE GENERAL MUNICIPAL ORDI- 
 NANCE BILL. 
 
 [Legislative Council, December 1 8, 1843.] 
 
 Mr. EBDEN presented a petition from the Municipality of Cape 
 Town against the 5th clause of the General Municipal Ordinance 
 Amendment Bill, which proposed " to authorize the Governor of 
 the Colony for the time being, with the advice of the Executive 
 Council, when and as often as he shall find reason so to do, to 
 recall any Proclamation issued by the Governor for the time being, 
 approving any municipal regulations." 
 
 The ATTORNEY-GENERAL said : I quite agree with my hon. 
 friend who presented this petition that the tone, the temper, and
 
 3O2 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 
 
 the wording of it, are altogether unexceptionable ; and I feel 
 assured that there is no member of this Council, or of the Execu- 
 tive Government of the Colony, who will object to have any measure 
 affecting, or supposed to affect, the interests of municipal institu- 
 tions, canvassed in such a proper spirit as that which has been 
 evinced by the Municipality of Cape Town. With regard to the 
 feeling which is said by my hon. friend to be generally prevalent 
 out of doors I am myself unable to speak, not having been into 
 Cape Town for some days past, but I am surprised to hear of it. 
 For my own part, I was, I confess, under the impression that the 
 opposition to the clause in question was chiefly attributable to a 
 learned friend of mine, who has, and who deserves to have, great 
 weight and influence with the municipal body. Of that learned 
 friend I speak with respect. I consider him an excellent lawyer, 
 and I always hear his treatment of professional topics with pleasure 
 and instruction; but upon the correctness of his reasonings upon 
 moral and political subjects I regret that I am unable to bestow 
 the same large measure of commendation. I believe that but for 
 his observations in the Zuid dfrikaan newspaper the principle of 
 this clause would not have been so much misconceived as appears to 
 me to be the case. I speak of the principle, which I think good ; for 
 the details, I admit, are faulty, and calculated to lead to incon- 
 veniences, which I have, this morning, been engaged in devising 
 machinery to avert. To that machinery I shall return again ; but 
 at present I confine myself to the principle, which I take to be this, 
 that it is safe, convenient, and in perfect keeping with the existing 
 system of municipal regulations, to vest the Executive with the power, 
 as often as it finds that from oversight, ignorance of local circum- 
 stances, want of experience, or any other reason, some particular 
 regulation has been approved of and published, which, had its nature 
 and operation been previously known, would not have been so 
 approved and published, to undo what it has itself done ; and that 
 it is not necessary or convenient, in every instance in which a par- 
 ticular regulation, no matter what its comparative unimportance, may 
 require modification, to resort to the solemn form of an Ordinance 
 of this Council. This, I conceive, is the principle of the clause.
 
 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 303 
 
 The details with which, upon reflection, I think it should be accom- 
 panied I shall explain just now. Is there anything in Ordinance 
 No. 9, 1836, hostile to the principle which I have just stated? I 
 think not. What is the principle of that Ordinance ? To bestow 
 certain large and important powers of a constitutional nature, which 
 as proceeding directly from the Legislature, no municipal regula- 
 tion should be able to alter or infringe, and to delegate to the 
 householders and the Executive the duty of providing, by muni- 
 cipal regulations, for matters of detail. Landmarks werefi xed by this 
 Council, not to be removed; but it was considered that with regard to 
 other matters of an inferior nature the treatment, for instance, of 
 pigs, pigeons, and other fowls to adopt a favourite arrangement 
 (matters on which our municipal friends are fond of discovering 
 their ripeness for legislation, although not at all times in a manner 
 which would excite the admiration of the Secretary of State) it was 
 not necessary that this Council should actively interfere ; and that 
 each municipality might be left, under the inspection of the 
 Executive, to legislate for its own pigs, pigeons, and other 
 fowls in whatever way it deemed the best. It might have 
 been argued in 1836 that this Council could not delegate to 
 the householders and the Executive Government the duty of 
 legislating even upon those matters of a local nature and of mere 
 detail. I presume, however, that what the Council did could have 
 been well defended. But that question I am not called upon to 
 argue. No one objects to that delegation. The petitioners 
 recognize it fully ; and the only matter for discussion is, whether 
 anything is given to the Executive Government by this clause which 
 comes to more than a following up of the provision of Ordinance 
 No. 9, 1836 ? What is given to the Executive by that Ordinance ? 
 This is given : An arbitrary and irresponsible veto upon all regula- 
 tions submitted. Subject only to their own sense of what is just, 
 and to their general official responsibility to a higher quarter, they 
 may veto every regulation that comes before them without giving, 
 and it may be, without having, the slightest reason for the act 
 This every one admits ; the Z,uid Afrikaan admits it, the Cape 
 Town Municipality admits it. How then can it be argued that
 
 304 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 
 
 you are conferring a new and dangerous power, that you are intro- 
 ducing an anomaly, that you are subverting municipal institutions, 
 when you propose no more than to bestow upon the same body, 
 upon whose responsible discretion it rests whether or not there 
 shall ever be any regulations published, the power of recalling, 
 when, circumstances demand it, their own act and deed ? Which 
 of these two powers is the greater ? The Executive might say, in 
 the first instance, to any given regulation, " We know the facts ; 
 we know this won't work well for the public generally ; we veto 
 it." No one denies that they might say this. Then if it shall ap- 
 pear that, with regard to any such given regulation, the Executive 
 did not know the facts, or, knowing the facts, did not comprehend 
 their working, how is it that the Governor is not to be at liberty, 
 in case nothing else will serve, to recall the Proclamation which he 
 himself has issued? You can only refuse this power to the Excutive 
 by supposing ignorance or corruption. But would not this igno- 
 rance and corruption have been a more valid reason for withholding 
 the absolute veto in 1836 ? Is there not as much room for corrup- 
 tion in quietly extinguishing a regulation before publication, 
 as in openly recalling it after publication ? Is there not more room 
 for ignorance in allowing parties to extinguish a regulation antecedent 
 to experience, than in permitting them to withdraw it after the 
 results have been perceived ? Besides, bear this in mind. Re- 
 gulations in the first instance may be vetoed in the dark. But 
 you can never withdraw a regulation which you have once pub- 
 lished without laying yourself open to the question, why do you 
 now disapprove of that which you approved of formerly ? And 
 this necessity of supporting your own consistency is a check both 
 upon corruption and caprice, which does not exist under Ordi- 
 nance No. 9, 1836. This question should be viewed as if the 
 clause in question had formed a part of the law of 1836. Could 
 anyone who agreed to bestow the general veto refuse to bestow 
 this inferior but connected power ? If any one had done so, 
 would not the absurdity of the whole proceeding have become 
 evident, seeing that, after giving a veto to be exercised in a corner, 
 it would be idle to refuse a power, from its nature, so much less
 
 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 305 
 
 liable to abuse. The Zuld Jlfrikaan says, and says truly, and 
 so does this petition, that Ordinance No. 9, 1836, provides 
 that regulations once published are to be deemed and taken 
 to be of the same effect as if originally included in the Ordi- 
 nance itself. This proves that, when so published, they have 
 the force of law. But the conclusion which is drawn from this 
 fzct, namely, that nothing but an Ordinance of this Council can 
 change them, is unsound and contrary to the provisions of the 
 Ordinance No. 9, 1836, itself. They may all be cancelled or changed 
 and this Council be never the wiser. The householders and the 
 Executive Government who created them may also destroy them. 
 But can John a Nokcs and John a Stiles, resident householders, 
 combining with the Executive Government, have the power 
 delegated to them to repeal an Ordinance of this Council ? Certainly 
 not. But an Ordinance of this Council may allow certain parties 
 to form regulations which, when framed, are to have the force cf 
 thst Ordinance ; but still those regulations are not a part of that 
 Ordinance, but may, if that Ordinance so provide, be amended 
 altered, or abrogated by the parties who framed them, or by either 
 of those parties, as the case may be. Those regulations, therefore, 
 have impressed upon them a character wholly distinct from that 
 of the Ordinance which authorizes their adoption, and may con- 
 sistently be governed by whatever rules convenience prescribes. 
 But it said that what I propose destroys the principle of concurrent 
 legislation. I do not think so. What is that principle ? Why, 
 that no municipal regulation shall ever be established with regard 
 to which the Executive Government and the householders do not 
 concur. It is admitted that if the municipality could make regula- 
 tions without the Government, there would be no concurrent 
 legislation. It is admitted that if the Government could make 
 municipal regulations without the muncipality, there would be no 
 concurrent legislation. Does this Bill give to the Executive Govern- 
 ment the power to avoid or alter any of the provisions of any Muni- 
 cipal Regulation ? Had it run thus : " Whereas municipal re- 
 gulations are liable to be published which might be improved ; and 
 whereas the Executive Government is the authority most competent
 
 306 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 
 
 to improve them : Be it enacted that, as often as any municipal re- 
 gulation shall be deemed faulty, it shall be altered or amended by 
 the Governor as he shall think fit ; and such alteration or amend- 
 ment shall thereafter be of like force and effect as if it had been 
 contained in the Ordinance No. 9, 1836, anything contained in the 
 said Ordinance to the contrary notwithstanding." Were such a Bill 
 brought forward, I should admit that you were subverting the prin- 
 ciple of concurrent legislation. But when it is recollected that the 
 Executive Government originally may have amended or rejected any 
 regulation sent in, and that all which is now sought is, to preserve 
 to them such a power over their own act as is obviously essential 
 to the due exercise of the function of amendment or rejection, I 
 can see no subversion of the principle of concurrent legislation. 
 When this power is exercised nothing is taken out of the hands of 
 the householders ; they must still concur in framing their regula- 
 tions ; the only effect will be to restore everything to its original 
 state. But I go further, and state that the principle of concurrent 
 legislation requires some such provision as that which we are now 
 considering. Why ? Because, otherwise, the reciprocity is Irish, and 
 the principle of change is all on the one side. The householders 
 may go on suggesting changes at yearly intervals, but without some 
 ultimate power ihe Excutive Government can never operate in 
 regard to change, no matter Low necessary it may be. To-day a 
 regulation is approved and published ; to-morrow, or a twelvemonth 
 hence, for the period makes no difference, the municipality suggest a 
 change. But if concurrence is to be the order of the day, should 
 you not put the Executive in a proper position to suggest changes ? 
 Under these circumstances I can see no danger in this measure, but 
 on the contrary much convenience. I can see the objection to placing 
 the consideration of Municipal Regulations in the hands of the 
 Executive instead of retaining it in the hands of this Council. 
 Perhaps there was some deviation from strict principle in so doing, 
 but that the deviation, if any, has done good I do not hesitate to 
 assert ; for had you as much experience of the condition in which 
 municipal regulations sometimes come up as I have, you would agree 
 with me that the due arrangement of them can be better accomplished
 
 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 307 
 
 by the Executive Government and its machinery than it could be by 
 this Council. The principle of Ordinance No. 9, 1836, may, there- 
 fore, be defended. It is founded upon the fact that there were two 
 parties to be represented one, the resident householders within the 
 municipality, and the other, those persons, whether within or with- 
 out the municipality, who had no voice at municipal meetings ; 
 and upon the expediency of permitting the householders to frame 
 their regulations, giving to the Executive the power of protecting 
 third parties. But unless invested with such a power as the clause 
 under discussion would confer, the Government cannot conveniently 
 and sufficiently discharge the duty originally assigned to it ; and 
 I therefore conceive that that power ought not to be withheld. 
 I admit that this section is not well done. I admit that, as it stands 
 there are just objections to it. It was done in haste. And allow 
 me to state that it was done entirely by myself. Neither your 
 Excellency nor any other member of the Executive knew anything 
 at all about it. I am exclusively responsible, and am willing to 
 take the responsibility. Being already engaged in framing some 
 amendments of Ordinance No. 9, 1836, required for the settlement 
 of some questions which had arisen, and which threatened litigation, 
 I received from the Colonial Office certain papers regarding a muni- 
 cipal regulation in Uitenhage, of which complaints were made, and 
 it struck me that if this regulation were as represented, an authority to 
 the Governor to recall the proclamation containing it would be 
 a simple and obvious mode of having matters settled on a more 
 satisfactory basis. It so happened that I had no time to communi- 
 cate with your Execellency upon the subject, and as the matter 
 seemed to me of no great moment, 1 drew the section now before 
 the Council. Let no one, therefore, affect to see in it any deep- 
 laid plan to exalt Executive authority above any fair municipal 
 privilege. God knows, the Executive authority gets nothing but 
 trouble by meddling with municipal regulations at all ; and they 
 would be very well pleased to get rid of all responsibility connected 
 with such things. Your Excellency and the other members of 
 Government could have no design to trench upon civic rights, and 
 I believe you have just as little desire ; and, for myself, I may say 
 
 x z
 
 308 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 
 
 that I am neither in principle nor in practice hostile to the careful 
 maintenance of every privilege to which representative munici- 
 palities can reasonably pretend. I did not, however, advert to 
 some considerations to which I ought to have adverted. I did 
 not consider that Government, by rushing suddenly in with a 
 recall, might do what would unsettle the whole affairs of a munici- 
 pality, and what, after al', might be avoided by a little previous 
 communication. This great defect was brought to my attention by 
 the tenor of a resolution proposed by Mr. Buchanan at a meeting of 
 the Cape Town Municipality. I have, as I already stated, en- 
 deavoured to remedy this defect ; and without, at present, reading at 
 length the provisions which I shall propose to substitute for the 
 present clause, I shall now state what, so far as the power to be 
 conferred upon the Governor is concerned, is their general nature. 
 When the Governor finds, from representations made, that any given 
 regulation, which was approved of, works in a manner which, had it 
 been foreseen, would have prevented him from giving his approval, 
 he is to be at liberty to inform the commissioners of his objections, 
 and to state the mode, whether by amendment or recall, in which he 
 considers that what is wrong may be made right. On receiving this 
 communication, the commissioners will, within an appointed time, 
 convene a meeting of householders, to decide whether the sug- 
 gestion of the Governor shall be agreed to ; and, in case it should 
 not be agreed to, then to decide, further, whether there are any other 
 of the existing regulations which the householders conceive to be so 
 dependent upon the regulation objected to that they would desire, 
 in case the Governor's suggestion relative to the one be carried out, 
 that the others should also be amended or recalled, as the case may 
 be. This meeting is to be empowered also, in case it cannot agree 
 to the Governor's suggestion, to accompany its rejection with such a 
 statement of the grounds of its dissent as it may consider calculated 
 to induce the Governor to change his opinion of the regulation 
 to which he has objected. The decision of this meeting is to be 
 transmitted within twenty-one days ; and in case of its not coming 
 within that time, it is to be taken that the householders agree. 
 If the meeting agrees, the Governor publishes the result. If the
 
 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 309 
 
 meeting dissents, and gives reasons, the Governor considers them ; 
 and, should he still see cause to object, gives notice in the Government 
 Gazette that the regulation in question will be recalled at the expira- 
 tion of twenty-one days. In case the householders dissent from the 
 Governor's suggestion, but accompany their expression of dissent with 
 the suggestion of certain dependent changes in the existing regula- 
 tions contingent upon the recall of the regulation objected to, the 
 Governor will consider those changes, and, if he sees no impropriety, 
 make them at the time of recalling the regulation objected to, should 
 he persevere in his opinion that it ought to be recalled. Should the 
 Governor be unable to accede to all the contingent changes thus 
 suggested,he shall give in the Gazette twenty-one days' notice that the 
 proclamation containing the whole of the regulations, as well that 
 which is objected to by him as those proposed to be changed by 
 the householders, is intended to be recalled, unless, in the mean- 
 time, the matters in difference shall be mutually adjusted by the 
 Executive and the municipality. During that twenty-one days the 
 Governor will send back for the final determination of a meeting 
 of householders the whole of the regulations in debate, amended 
 in such a manner as he deems necessary ; and if, in this condition, 
 approved of by the householders, they will be duly promulgated. 
 But if no arrangement can be come to, pending the expiration 
 of the notice in the Government Gazette, then the Governor shall 
 recall all the regulations respecting which there is any dispute ; 
 and thereupon they shall be deemed to be in the same plight and 
 condition as if they had been then first submitted to His Excellency 
 for his approval, amendment, or disallowance. These, and other 
 provisions which I intend to introduce, will, I hope, be plainer on 
 paper than they can be from my brief statement of them. They 
 will, I trust, remove all well-grounded objection, and convince 
 every candid mind that nothing is demanded for any other purpose 
 than to be able to discharge efficiently the duty which now 
 devolves upon the Executive Government. Objections, however, 
 there still may be ; and I shall recommend a republication of the 
 draft, in order to give an opportunity for them to be urged. 
 When they come, if they do, I shall give them a careful, and \
 
 3IO ON THE GENERAL MUNICIPAL ORDINANCE BILL. 
 
 hope, dispassionate consideration ; and will be happy, if convinced, 
 to avow my conviction. But if the objection shall not seem bona 
 fide, but appear to indicate a desire to carp, and find fault, and 
 impute improper motives, I, for one, shall be prepared to treat 
 them with very little ceremony, and to recommend to the mem- 
 bers of this Government in Council, if they feel convinced of the 
 uprightness of their intentions, and the reasonableness of the 
 thing, to carry the amended Bill, I have stated that the matter 
 which suggested to me the expediency of such a provision as that 
 which we are considering was a regulation of the Municipality of 
 Uitenhage. From certain papers which have lately been before me 
 for report, it would appear, if I comprehend the whole merits of 
 the case, that the Executive sanctioned, in September last, a 
 regulation injurious to the interests of the coloured classes in the 
 neighbourhood of Uitenhage. I may be wrong in this opinion ; 
 such, however, was my impression, and at all events it was a case 
 to be investigated. His Honour the Lieutenant-Governor clearly 
 thinks we were precipitate. And in a matter of so much importance 
 it is very desirable that we should have an opportunity of re-con- 
 idering the subject. Without some power in reserve Government 
 cannot negotiate with the independence which it should exhibit. 
 Government wants to have no concern with, or responsibility for, 
 municipal regulations. If this Council desires the duty, let it 
 discharge the duty altogether. But if we are to-co-operate with the 
 municipalities, we should be furnished with the means of co- 
 operating with effect ; and therefore I, for one, would be for either 
 restoring to this Council the whole management of municipal details, 
 or else for adopting a measure framed with the most studious anxiety 
 so as to avoid all collision, and at the same time to allow the Gover- 
 inor to retain some power over his own proclamation. I hear it said, 
 indeed, "Oh! what need of such a clause ? The municipalities are boun- 
 tiful, and will refuse no reasonable favour. Government, as it is, has 
 only to go and speak prettily, and it will be patted on the head, and 
 get what it asks for." But I hardly think that is the proper footing 
 on which the thing should stand. Government should not be 
 always suppliants when they are interfering solely for the general
 
 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 3! I 
 
 good. And I must say that from neither of my hon. friends who 
 haved addressed the Council have I heard one jot or one tittle of 
 anything that looks like argument. They have not offered the 
 contingent remainder of a reason for the vote which they are 
 prepared to give. Let it be always borne in mind that it is not 
 proposed to allow the Governor to alter a single regulation, or to 
 do more than recall his own act, when he finds that from deficient 
 information the act is calculated to do harm. The Zuid Afrikaan 
 admits, and so does its echo, the petition, that that which had the 
 power to do should have the power to undo. If then, when all 
 other means fail, and they will seldom fail when it is remembered 
 that there exists an ultimate remedy in the hands of Government, 
 recourse is had to the simple undoing of that which Government 
 has done, how can it be argued that concurrent legislation in any 
 rational sense has been subverted ? Of course, I do not contend 
 that the Executive should be permitted to repeal an Ordinance. 
 But those regulations, as I formerly said, have a peculiar character, 
 and are a species of legislation which must not be confounded with 
 the Ordinance which authorizes them. By the Charter of Justice, 
 an instrument of higher moment than an Ordinance, the Judges 
 may make rules of court. Those rules, when made, are declared 
 to have the same force as the Charter itself. Those rules are 
 every day changed, and still no one asserts that the Judges can 
 repeal the Charter ; and a similar power in regard to recall- 
 ing a regulation no one pretends to publish a new one when 
 conferred by law, cannot be properly asserted to amount to a re- 
 pealing of the Ordinance No. 9, 1836. I wish both parties, 
 householders and Executive, to possess equal rights. I see 
 no use in the provision that a year must elapse before the house- 
 holders can amend, and I should relieve them from that pro- 
 vision. Other changes will be read in the new draft when pub- 
 lished. With common rights and powers the public business will, 
 I venture to say, be amicably managed. If the present system be 
 continued if we are to have no means of reconsidering our act if 
 what is once published must, as far as the Excutive is concerned, 
 remain for ever published much delay will be inevitable. We
 
 312 ON THE GENERAL MUNICIPAL ORDINANCE BILL. 
 
 must walk warily. We must leave nothing to experience. That 
 all regulations from the eastern districts should undergo the 
 scrutiny of His Honour the Lieut. -Governor is only proper. But, 
 besides, we must have special reports, from the civil commis- 
 sioners, upon all points which seem to be of consequence. And 
 there must be a long previous publication in the Gazette, inviting 
 criticism. This will be the fruit of tying the Executive down to 
 its first thoughts. But if, on the other hand, there shall appear to 
 no candid man any reason for thinking that the power of reconsider- 
 ing any regulation which the public object to is more likely to be 
 abused than the power of repudiating all regulations in the first 
 instance, then the ri^ht in question ought not to be denied, it 
 may never be called into operation, but should it be so called, it 
 can never operate but well.
 
 1844- 
 
 ON THE QUITRENT ENFORCEMENT BILL 
 
 [Legislative Council, Ja?:uary 22, 1844.] 
 
 The GOVERNOR stated his intention to withdraw the Quitrent 
 Enforcement Bill, and to propose another in its stead ; a course 
 which the Attorney- General would state the reason for. 
 
 The ATTORNEY-GENERAL said that, without entering into a par- 
 ticular consideration of the principle of the measure referred to b^ 
 His Excellency, it would be sufficiently obvious to any person who 
 had given it a perusal that its object was to stimulate the recovery 
 of quitrent in arrear by as cheap and expeditious a course as 
 possible, it being the conviction of Government that it was a favour 
 ill bestowed to allow arrears to accumulate, where the money might, 
 by a greater degree of pressure, be regularly got in. Everyone 
 must see that the Court of the Resident Magistrate would, if allow- 
 able, be the most convenient court in which to proceed in cases 
 involving no legal difficulties, and in which cheapness was desirable 
 for all parties concerned. This was the course proposed by the 
 Bill before the Council, which would have required the grantees of 
 Government either to pay the rent or quit the place ; but it 
 appeared to the Judges that, under the Charter of Justice, the Court 
 of the Resident Magistrate could not have jurisdiction in such cases. 
 It appeared to them that the title to lands and tenements came in ques- 
 tion. He (the Attorney-General) had been misled by the distinction 
 which he had been accustomed to draw at home between eject- 
 ment on the title and ejectment for non-payment of rent, the 
 latter being a proceeding which did not question the title, which, on 
 the contrary, in its nature affirmed title, but which merely went
 
 314 ON THE POLICE SUPERANNUATION BILL. 
 
 upon the simple fact of condition broken. But yielding at once 
 to the views of the Judges, he had prepared a new Bill, which 
 would, he hoped, be found free from objection. It proposed in 
 certain cases to allow the Civil Commissioner to seize the invecta 
 et illata, and so levy the rent. In other cases it provided a safe and 
 cautious machinery for recovering the land itself, through the 
 Surpreme or Circuit Court, when no person could be found to clear 
 off the arrears. A practical difficulty belonging to the law of 
 evidence was removed by allowing the entry of the title in the 
 civil commissioner's books to be prima fade evidence of the grant, 
 so as to obviate the necessity of sending down title deeds from 
 Cape Town into the country. Upon the whole he trusted that 
 the Bill would meet the end in view. 
 
 ON THE POLICE SUPERANNUATION BILL. 
 
 \_Legislative Council, January 22, 1844.] 
 
 The Police Superannuation Fund Bill was read a second time. 
 
 The AUDITOR-GENERAL feared, as far as he was concerned, the 
 plan was started rather too late in the day. 
 
 ATTORNEY-GENERAL : It is related of James the First that, in a 
 conversation with the Bishops of Chester and Gloucester touching 
 his prerogative Royal, he asked those right reverend prelates 
 whether he might not lawfully take their goods, by divine right, if 
 he should stand in need of them ? The Bishop of Chester said 
 " Certainly ; " but the Bishop of Gloucester said nothing. The King 
 insisted upon his having his opinion on the matter. " My opinion 
 on the matter is," at length returned the prelate, "that your Grace 
 may lawfully take my brother of Chester's goods, for he himself 
 offers them." Now, the police force are here in the same predica- 
 ment as the Bishop of Chester. I am informed that the Judge and
 
 NON-OBLIGATION OF GOVT. TO FURNISH PROCURABLE INFORMATION. 315 
 
 Superintendent of Police lately mustered the entire force, and after 
 explaining the advantages which were likely to be derived from the 
 creation of the proposed fund, enquired whether or not they all 
 agreed to the arrangement, to which they answered unanimously in 
 the affirmative. There is, therefore, no difficulty in applying this 
 principle to the case of the police. The same principle may, 
 perhaps, apply equally to some of us, and whenever the Treasurer, 
 the Auditor, the other members of Government, and myself, are 
 called out on parade and asked the question, we shall probably be 
 able to say whether we like a superannuation fund or not. 
 
 ON THE NON-OBLIGATION OF GOVERN- 
 MENT TO SUPPLY TO MEMBERS OF THE 
 LEGISLATURE WHAT THEY CAN THEM- 
 SELVES PROCURE FROM PUBLISHED 
 OFFICIAL SOURCES. 
 
 {Legislative Council, March 4, 1844.] 
 
 Mr. EBDEN : Is it said that all the information I have asked for 
 is to be found in these Gazettes ? 
 
 ATTORNEY-GENENAL : My hon. friend has asked whether all the 
 information he calls for is to be found in the Government Gazette. 
 In order to answer his question, let us see, by reading his notice of 
 the returns he requires, how many of them relate to matters con- 
 tained in the Gazette, and how many of them do not. By this 
 means we shall be placed in a position to determine the two ques- 
 tions which are now before the Council ; first, whether matter 
 duly published periodically in the Government Gazette should be 
 put into ship-shape for the purposes of a given motion by the 
 mover of that motion or by the Colonial Government ; and 
 secondly, whether Government returns can regularly be made, rela-
 
 316 NON-OBLIGATION OF GOVT. TO FURN'ISH PROCURABLE INFORMATION. 
 
 tive to the other information called for by my hon. friend, and 
 which belongs to matters not published in the Governtnent Gazette. 
 The first return, then, which is demanded is, a " Return showing 
 the number of separate acts of depredations committed in the colony, 
 by the native tribes, during the years 1837, 3^> 39* 4> 4 1 ? 4 2 > an d 
 43, distinguishing the nature and extent of such depredation, i.e., 
 the number of horses, heads of cattle, or other descriptions of pro- 
 perty reported to have been destroyed or abstracted from the 
 Colony by the Kafirs." Now, your Excellency has distinctly shown 
 that, as far as this return goes, the materials for making it, the 
 materials from which Government must make it, everything neces- 
 sary ro give the fullest information upon every single point, are 
 already in the Government Gazette, and so in the possession of my 
 iion. friend, and it will unutterably amaze me to hear it asserted that 
 in Parliament, or out of Parliament, or in any deliberative assembly 
 whatsoever, it has ever been deemed to be the duty of Govern- 
 ment to act as the amanuensis of any individual, or, by digesting 
 matters belonging to the public at large, to do for him what he is 
 equally able to do for himself. In Parliament, no doubt, members 
 do every day move for returns, but of what ? Of matter already 
 published by authority ? No ; but of matter belonging to the arena 
 of Government, of diplomatic despatches, of tables of exports and 
 imports, and a variety of similar things which none but Government 
 can give. But when the Government does actually publish 
 periodical returns returns wh.ich all who run may read to say that 
 this is not enough, and that when a motion is meditated by any 
 member of this Council Government must go further and frame a 
 digest of these periodical returns, seems tome a proposition incapable 
 of being supported. If my hon. friend asked for anything which 
 he has not already got, the case might be somewhat different. But 
 everything he asks for, the time, the place, the owner, the number 
 and description of the stolen animals, all, and more, are in the 
 Gazette ; and nothing is or can be wanted except the industry 
 to sit down with the Gazettes, read the several returns, and add 
 up, if it be thought necessary, the general result. But my hon. 
 friend says that this task is too troublesome.
 
 NON-OBLIGATION OF GOVT. TO FURNISH PROCURABLE INFORMATION. 317 
 
 Mr. EBDEN : No ; the Secretary says so. 
 
 ATTORNEY-GENERAL : But so does myhon. friend. The Secre- 
 tary to Government says that the trouble should not be taken by 
 him, but by whom it may concern. Let my hon. friend set to 
 work himself. No one ever heard of Joseph Hume asking Govern- 
 ment to make up for him the " tottle " of any sum in addition. If 
 the Government will give him the accounts he will always make 
 up the " totrle " for himself. It may be convenient for my hon. 
 friend to have so much labour shoved off his own shoulders. In the 
 same manner it might be convenient for my hon. friend to be 
 iurnished with a return containing a digest of all the articles upon 
 the frontier policy published for the last seven years in the Gra- 
 ham's Town Journal. But Government has no concern with any 
 of these things. It is not going to digest the Graham's Town Journal. 
 It is not going to digest the Government Gazette. Let my hon. friend 
 take courage, sit down with the Government Gazette, and collect 
 the information he requires. There is no glory ever gained except 
 by toil ; and my hon. friend will never, let him take my word 
 for it, obtain the renown of upsetting the frontier system without 
 going down into the question and arming himself with the data by 
 which that overthrow must be effected. We now come to the 
 second call of my hon. friend, which is for a return embracing a 
 general abstract of losses reported to have been sustained by the 
 colonists of the depredations by the Kafirs during the above period, 
 distinguishing their nature and extent, and whether reclaimable or 
 not reclaimable according to the treaties. There is nothing new 
 here ; and all that has been said already equally applies. There is 
 not one iota of the information here demanded which is not to be 
 found in the Government Gazette; and all that is wanted 
 is the merely ministerial act of "totting up" and "carrying 
 forward," sn act which should be done by those who wish 
 to use the result, and one which no other party is, or can be 
 under any obligation to perform. My hon. friend, in the third 
 place, wishes a return in detail of all acts of aggression, whether 
 committed by the Kafirs or the colonists. We have here some new 
 ground. The Gazette does not purport to give all that is required
 
 318 NON-OBLIGATION OF GOVT. TO FURNISH PROCURABLE INFORMATION. 
 
 by this return. But how, I ask, is Government to be called upon 
 to frame a return of aggressions by colonists in Kafirland ? Had 
 my hon. friend limited his demand to a return of aggressions 
 reported to Government I could have better understood him ; but 
 he wishes Government to take the responsibility of framing a return 
 of all aggressions, whether reported or not. There may have been 
 some cases reported from time to time. I know nothing about that. 
 But this I know full well, that there are more serviceable tources 
 of information open to my hon. friend. When he has exhausted 
 the Gazette, let him fall back upon the Graham's Town papers and 
 petitioners. These will supply all deficiences, leave no aggression 
 unmarked, keep back nothing, commit no sins of omission. Fourthly, 
 my hon. friend calls for a return showing every breach of the 
 existing treaties. We have here pretty much the same thing over 
 again ; but be that as it may, has Government, I ask, any peculiar 
 means of collecting for my hon. friend the information which he 
 seeks ? What breaches of treaty he refers to I do not exactly 
 understand. Every cattle theft may be called a breach of treaty. 
 Every outrage beyond the boundary may be called the same. Per- 
 haps the late expedition against Tola involved, upon all sides, a 
 breach of treaty ; and my hon. friend's contemplated return is meant, 
 it may be, to involve a narrative of that transaction. But be the 
 breaches what they may, every man upon the frontier knows them 
 as well as does the Government. The cattle question he can settle 
 very simply. Let him compute from the Gazette the number of 
 cattle, reclaimable under treaty, which have been stolen by the 
 Kafiri. Let him deduct the number returned or compensated, and 
 the difference will show the breaches of treaty connected with cattle 
 stealing. Then my hon. friend demands a return of the number 
 of lives lost and assaults committed, and so forth. What peculiar 
 facilities for telling this does Government possess ? The only way, 
 or at least the first way, in which Government hears of such things 
 is by common report ; and common report is as available to all 
 
 other people 
 
 Mr. EBDEN : We do not ask the Government for what it cannot 
 do.
 
 NON-OBLIGATION OF GOVT. TO FURNISH PROCURABLE INFORMATION. 319 
 
 ATTORNEY-GENERAL: Butlsaj there is no source of information 
 open to Government which is not open to the public ; and Govern- 
 ment is not to frame returns for people who can frame them for 
 themselves. 
 
 The GOVERNOR : All the information in the possession of 
 Government is embodied in the remarks attached in the quarterly 
 returns. The only breaches of treaty are connected with the 
 stealing of cattle, all which cases arc regularly reported. 
 
 ATTORNEY-GENERAL : Then, my hon. friend asks for a matter, 
 which is, I admit, no whit more unreasonable than the rest ; but 
 one which is, in all conscience, quite unreasonable enough ; that is> 
 for copies of the existing treaties. Those treaties are not locked 
 up in the Colonial Office. They are printed, in all their length and 
 breadth, in the Government Gazette; but, not content with that, 
 my hon. friend appears to wish that Government should cause them 
 to be copied out and laid upon the table. Under these circum- 
 staices, I submit that my hon. friend cannot support his motion by 
 cither precedent or reason ; and that it should be negatived. He 
 asks either for what Government has already given, or for what 
 Government should not be called upon to give. He might as well 
 move for a return showing the number of meetings held to petition 
 against the treaties, and the number of harangues delivered thereat, 
 or a return showing the state of feeling upon the subject of the 
 treaties, or a return containing, as I said before, a digest of the able 
 articles of Mr. Godlonton, or a return of any other matter whatso- 
 ever, which might facilitate the performance of the task which my 
 honourable friend proposes to discharge. These are matters as 
 open to my honourable friend as to anyone else ; and I really con- 
 ceive that, except we agree, for the convenience of saving trouble 
 to ourselves, to create a new officer, to be called returner-general 
 to the Legislative Council, whose duty it shall be to collect and arrange 
 such data as we may, for purposes of debate, from time to time 
 require, we shall never be able to accomplish what my hon. friend 
 appears to have in view. I am not prepared to assent to such a 
 proposition, and I am as little prepared to assent to a motion 
 requiring the Government to undertake so anomalous a duty. Let
 
 32O NON-OBLIGATION OF GOVT. TO FURNISH PROCURABLE INFORMATION. 
 
 me be permitted to say a word or two in explanation. I wish to 
 assure my hon. friend, most unaffectedly, that in anything I have 
 said, or shall say, I have no wish to offer him the least offence. 
 What I said about renown was merely thrown in to enliven 
 the discussion, and only intended to convince my hon. friend 
 that it is a constitution of debate, indeed, a law of our nature, 
 that glory can never be won without working for it. My hon. 
 friend seems to acknowledge that he is not as yet master of his 
 subject ; and 1, for my part, am quite willing to acknowledge that 
 there are many things belonging to our frontier system which I do 
 not altogether understand. But I say to my hon. friend, what I say 
 to myself, that if we wish to imbue oar minds with the necessary 
 knowledge, we should draw water for ourselves from the original 
 sources, and not allow the Secretary to Government to fill our 
 cisterns for us. The whole question is harrassing and difficult. 
 There is no royal road to the discovery of a sound border policy. 
 It is not by succinct returns that the matter is to be determined, 
 but by a patient consideration of circumstances and details ; a con- 
 sideration which must be given by ourselves or be completely 
 profitless ; for to suppose that, upon such points, we can become 
 wise by another man's investigation would be as absurd as to suppose 
 that we could become strong by another man's exercise. He who 
 would be healthy must take the exercise himself; and I tell my 
 hon. friend that he will never make a speech worth listening to 
 upon the subject of the treaties until he has courageously gone down 
 into the details of their working, and arranged his data for him- 
 self. My hon. friend, however, may view this matter differently ; 
 and if so, he has, of course, a right to hold his own opinion. 
 But my hon. friend has said that he cannot disguise from himself 
 that when, by the assiduity of the reporter present, our proceedings 
 to-day shall go forth to the frontier, the frontier folk will see in 
 them clear proof of an indisposition upon the part of this Council 
 to give a fair hearing to their grievances. I think he is wrong in 
 this conclusion ; and T am sure the frontier people will be wrong 
 if they take up the view which he suggests. The Secretary to 
 Government has distinctly stated (and even his enemies will,
 
 NON-OBLIGATION OF GOVT. TO FURNISH PROCURABLE INFORMATION. 32! 
 
 I think, give him credit for candour), that there is not the smallest 
 wish upon his part to give the go-bye to the question, or to prevent 
 its being fully and fairly argued. He has, in a great measure, rested 
 his opposition to the present motion upon the labour which it would 
 entail ; and I have no doubt that if these returns could be made by 
 magic he would have had no objection to their production. Your 
 Excellency has, I conceive, with equal clearness disavowed any 
 desire to stifle any constitutional and legitimate discussion of the 
 subject. My own indisposition to grant this motion is not rested 
 so much upon the ground of labour and expense, although that 
 alone is a sufficient ground, as upon the principle that if you once 
 begin to cast upon Government the duty of collecting facts and 
 totting figures, which are all open to the world at large, you will intro- 
 duce a precedent which may hereafter be pushed to a mischievous 
 extent, when returns of a still more unnecessary character are called 
 for and refused, and what you did to-day will be pointed to as proving 
 your egregious inconsistency. My hon. friend has said that similar 
 returns are given to the House of Commons, and that he could pro- 
 duce instances. Those instances, however, he has not produced. 
 Under these circumstances, I will not consent to give what I 
 conscientiously think is not needed, because it may, perhaps, be 
 said : " Oh ! the Government only wants to shirk the discussion." 
 Sir, there is no more wretched cowardice than the fear of being 
 called a coward. When men, who arc, I hope, men of honour, 
 deliberately declare that they have no wish to stifle any debate ; 
 when my hon. friend, the Secretary to Government, is ready at the 
 proper time to enter upon the question ; when I, as is my wont, 
 will be prepared, fully and fairly to state my views, however 
 unimportant, I trust it will not be supposed that in resisting an 
 irregular motion we are refusing legitimate discussion. I am willing 
 to appeal to the good sense and good feeling of our fellow-colonists 
 upon the frontier. When I was there in 1840 they treated me 
 right well. I was welcomed in Graham's Town with a splendid 
 hospitality snd kindness which can never be forgotten. The same 
 people will not now believe that I am merely shirking a debate by 
 opposing such a motion as that which is before the Council. So 
 
 Y
 
 322 NON-OBLIGATION OF COVT. TO FURNISH PROCURABLE INFORMATION. 
 
 much for the justification of the Council, and now for some advice 
 to my hon. friend. He also is upon his trial. And let me warn 
 him to take care that, when our proceedings reach the frontier, it 
 may not be suspected that he himself, having no appetite for the 
 discussion, and wishing, if he can, to shirk the question, takes a 
 course which 
 
 SECRETARY TO GOVERNMENT : Hear, hear. 
 
 ATTORNEY-GENERAL : That he, himself, I say, not willing f> 
 peril himself by any distinct or deliberate proposition, and not 
 seeing clearly his way before him, desires, not unnaturally, I admit 
 I impute no improper motives to give the gentle go-bye to the 
 discussion by asking for what he knows cannot be granted. 
 
 Mr. EBDEN : The best answer to that is that I ask for what the 
 petitioners have requested. 
 
 ATTORNEY-GENERAL : Do I blame my hon. friend for not 
 coveting a debate upon a subject of so much difficulty and delicacy, 
 embarrassed as it is, by so many collateral circumstances ? By no 
 means. I am very far from coveting that debate myself, though 
 when called upon I shall debate it. I am not insensible to the 
 existence of much and irritating annoyance experienced by the 
 border colonists. I would, if I had any power, do much to relieve 
 them. But I cannot allow myself to be carried away by a one-sided 
 view of a subject which has many sides. I cannot, because I hear 
 a great roar along our frontier line against Kafir depredations and 
 inefficient system, at once rush headlong into a condemnation of 
 the present treaties, when the only effect of breaking them down 
 might be to let in upon the Colony a sea of troubles of which the 
 surging might prove unspeakably destructive. 
 
 The GOVERNOR : Hear, hear. 
 
 ATTORNEY-GENERAL : When we arc exposed to opposite evils 
 he maxim is, to choosr rhe least. I will not assert that the treaties 
 form the least of two evils. This would involve a more decided 
 opinion than I am now prepared to express. When the time comcs > 
 if it shall ever come, I shall attempt an investigation of this question. 
 In the meantime, not anxious for a discussion which can, perhaps, 
 do little good ; but, at the same time, not afraid to enter on it when
 
 IX PROPOSIXG LADY NAPIER'S HEALTH. 323 
 
 legitimately required so to do, I would beg my hon. friend to 
 beware how, by making his promised motion contingent upon these 
 returns, he may appear to the public to be shirking that discussion 
 f.-om which he is apprehensive that the Council may be thought 
 to flinch. 
 
 IN PROPOSING LADY NAPIER'S HEALTH. 
 
 [Government House, March 27, 1844..] 
 
 The Hon. Mr. PORTER said : My hon. friend, Mr. Montagu, has 
 just proposed, in very proper and judicious terms, the health of a 
 distinguished lady. He has given his reasons (and right good 
 reasons they appear to be) for thinking that our society at the Cape 
 is likely to reap many and solid advantages from having, at its head, 
 the lady of the present Governor. I go cordially alongwith my hon. 
 friend in his bright anticipations ; and so, I am sure, does everv 
 gentleman who hears me ; but still, while indulging the pleasures 
 of hope, we cannot be insensible to the pleasures of memory. 
 My hon. friend has done his part, and now I wish (would that I 
 could do so in as fitting terms) to do my duty, and propose 
 the health of another distinguished lady, Lady Napier. Sir, 
 in my opinion this toast needs no laboured panegyric, and I 
 shall pronounce none. But very lately most of us now here 
 witnessed, in this room, an assembly collected in her honour, 
 which was in some degree worthy of her character, and her 
 health was then given by the Chief Justice, in terms which I shall 
 not attempt to emulate. And since on that occasion Lady Napier's 
 friends received the mention of her husband's health right well, I 
 am the more completely satisfied that Sir George Napier's friends, 
 this evening, will not be backward to return the compliment. 
 Sir, if superior sense if rare discretion if rigid abstinence from all 
 
 Y 2
 
 324 IN PROPOSING LADY NAPIER. S HEALTH. 
 
 meddling with matters which did not concern her if a noble 
 elevation above everything in the shape of small colonial cabals or 
 coteries if a resolute withdrawal from every avenue to popularity, 
 however tempting, which might ever so remotely tend to hamper 
 her husband's perfect freedom of action in regard to men or 
 measures if these, I say, be qualities which should commend 
 the lady of a Governor to a company of gentlemen, then, 
 gentlemen, I tell you that these were qualities possessed by Lady 
 Napier in an eminent degree. Sir, you well remarked, when pro- 
 posing Sir George Napier's health, that it is not easy to be 
 a good Governor. This is true. But believe me also that it is not 
 easy to be a good Governor's wife. A foolish, or an imprudent, or 
 an ambitious woman, or a woman fond of gossipping or tittle-tattle, 
 may, without meaning it, do an immensity of mischief. Lady 
 Napier was of another stamp. And whatever difficulties our gallant 
 guest may have encountered in his government (and he has en- 
 countered many), he has the high satisfaction of knowing that not 
 one of those difficulties was created for him by his wife. 
 Gentlemen, feeling that her husband's character and comfort were 
 her great objects in this life, she judiciously consulted both by con- 
 fining herself to the sphere in which she was legitimately placed ; 
 cheering and enlightening it with the mild radiance of native 
 elegance and taste, dealing out impartial courtesy to all within her 
 reach, and diffusing around her that large amount of happiness 
 which taste, and temper, and refinement, in elevated station,, 
 invariably communicate. And she has her reward ; for when,, 
 on Monday next, she quits the Colony, she will leave behind! 
 her, not the character of a busy or intriguing meddler, or 
 of that social mosquito, a petticoat politician but of one who was 
 the more to be admired because of the absence of all those vulgar 
 elements which strike the vulgar gaze. Sir, there are few 
 of us who have not, more or less, experienced her kindness. 
 There are some here who have been privileged to know how much,, 
 in private life, she can add, bj her gaiety and talent, to the fund of: 
 social animation and enjoyment. There are others here who have 
 experienced that she can sympathize with sorrow, and comfort:
 
 IN ANSWERING FOR "THE LADIES," ETC. 325 
 
 those who mourn. We all send with her our best wishes ; and I 
 can ask, for my old and honoured master there, to whom I owe 
 much gratitude for much kindness, no greater blessing than that she 
 may long live to be to him what she has hitherto been, to double 
 ihis joys, divide his griefs, and bless, for many and many a happy 
 year, a home and heart that would, indeed, be desolate without her. 
 Sir, I give you " Lady Napier's Health !" 
 
 IN ANSWERING FOR "THE LADIES" AT 
 THE BANQUET TO SIR G. NAPIER, AND 
 PROPOSING THE INDIAN VISITORS. 
 
 {Commercial Exchange, Cape Town, March 27, 1844.] 
 
 The Hon. Mr. PORTER said: Although, Sir, I have not received 
 the usual professional inducement to undertake this case, I am 
 quite willing to accept it for love, and since it has, at all events, 
 brought me up upon my legs, I may as well consider myself, upon 
 this occasion, as standing counsel for the ladies of this Colony. And 
 I do assure you, Sir, that, were it not that, despite all our conviviality, 
 and good cheer, and good feeling, time rolls his ceaseless course, and 
 that we have arrived at that period of the evening when, on ball 
 nights, in this room, papas begin to look obdurate, and speak severely 
 about keeping the carriages and the horses waiting, and daughters, 
 who care for neither, beseech papas for " just one other little waltz, 
 no more, " I should endeavour to do some sort of justice to the 
 inspiring topic which has already excited such visible enthusiasm. 
 But that, alas, is now impossible, and really when I call to mind 
 the brilliant manner in which Mr. Bushby introduced the toast, 
 and the glowing imagery brought, I should say from eastern 
 climes, of which he has been prodigal, I cannot be too careful not 
 to lose myself in an attempt to follow him through the flowery
 
 326 IN ANSWERING FOR "THE LADIES," AT THE BANQUET TO 
 
 paths into which he has led the way. Under these circumstances 
 I would I had a Bramah press, or some such potent engine, to 
 condense what I have to say ; but one or two remarks, never- 
 theless, I must take leave to make. And first, Gentlemen, give 
 me leave to tell you that although we (I class myself with my fair 
 clients) are very much obliged to you for proposing our healths, 
 we would be much more obliged to you to propose for ourselves. 
 Fair speeches, after all, are only so much breath ; we do not, of 
 course, absolutely disregard them ; but still, eligible offers arc quite 
 another thing, and deeds, not words, is our immortal motto. We 
 have heard a great deal about a great and gallant Duke to-night. 
 You remember, I doubt not, his celebrated exclamation (it is said 
 to be fabulous, but it ought to be true), when, as the French 
 Imperial Guard were sternly advancing to the attack, his eagle 
 eye perceived that the time had come for a decisive charge, and he 
 uttered the stimulating exhortation : " Up, Guards, and at them !" 
 Now, just fancy our young ladies to be fair enemies, enemies who 
 ask no quarter, and who give none, and if any guardsman hear 
 me, I would say to them, and to all others whom it may concern, 
 " Up, Guards, and at them !" Encountering such adversaries, they 
 will, indeed, be inevitably vanquished. But it is a peculiarity of 
 such warfare that wounds and captivity arc blessings rather than 
 otherwise, and that the glory of the warrior consists in frankly 
 confessing himself conquered. Gentlemen, I am glad to hear you 
 laughing. But it is no laughing matter to be called on twice 
 within a fortnight, as I have now been, to speak to the same 
 toast, even though that toast be "The Ladies." One very obvious 
 inconvenience is, that the man who says all the good things he 
 has to say on one night is certain to have nothing good to say 
 the next. And as it cannot be consolatory to my feelings, as 
 a single man, to dwell on topics of a connubial character, I can 
 scarcely imagine the reason why I am thus paraded, except it be 
 that, as the Spartans sometimes exhibited a drunken slave to deter 
 their youths from intoxication, so you exhibit me as an unhappy 
 old bachelor to frighten young fellows from celibacy. However, 
 while there's life there's hope, and I will here whisper a state
 
 SIR G. NAPIER, AND PROPOSING THE INDIAN VISITORS. 327 
 
 secret. There is a committee now considering the Colonial Stamp 
 Laws, and I think I may state, with confidence, that, in order to 
 encourage the young ladies, and promote matrimony, my friend 
 Mr. Montagu intends, if he can, to reduce marriage licenses from 
 two hundred dollars down to one. For my part I am only waiting 
 for the low price ; other old bachelors, I have no doubt, are in 
 the same state ; and the result will be, I make no question, of 
 a highly gratifying description. But now, Sir, we will tear 
 ourselves away from the ladies, and I wish, with your per- 
 mission, to propose a toast which upon this and upon every 
 other occasion we are bound ro receive with respect and cor- 
 diality. It is the health of our Indian Visitors. In reference 
 to this toast I wish to be extremely brief. But I cannot pas s 
 over the two great classes of which those visitors consist with 
 out saying a word or two of each of them. And first, then, we 
 know that many of our Indian visitors are officers of the Indian 
 army. The reputation of that army never stood higher than it 
 does at present ; and I cannot refrain from reminding the company 
 that a great ornament of that army has just reached our shores. 
 Mr. Ebden, and myself, as two of your stewards, waited to-day on 
 Major-General Sir William Nott, to request the honour of his 
 company at this dinner. That gallant officer was pleased to say 
 that he fully appreciated the compliment we offered, but that, 
 although a good deal benefittcd by his voyage, he could not venture 
 here, immediately after landing, without imminent danger of a 
 relapse. Ke would gladly, he said, have met Sir George Napier 
 the Napiers were all a gallant race and Sir Charles a most noble 
 soldier and most able man. Sir, we must all regret that the health 
 of Sir William Nott has deprived us of the pleasure of welcoming, 
 in this room, one of the heroes of Cabul. In every panegyric tha: 
 has been pronounced to-night on the British army in general, the 
 Indian army of which he was a leader is justly entitled to par- 
 ticipate, for God forbid that any distinction should be made, or that 
 the Sepoy, who, when well officered, is an excellent soldier, should 
 go without his meed of honour. It would ill become me to dwell 
 on the achievements of Sir William Nott. The wide world knows
 
 328 IN ANSWERING FOR " THE LADIES/' ETC. 
 
 them, and the Prime Minister of England, in his place in Parlia- 
 ment, has described them in a magnificent display of classic 
 eloquence not to be forgotten. In circumstances of difficulty and 
 discouragement, in the face of previous and terrible reverses, in 
 fastnesses and defiles amidst which even the armies of Alexander 
 wavered, General Nott ventured nobly for British glory, and 
 advancing boldly on the one side, while his gallant compeer, 
 Pollock, went forward on the other, he scattered ail opposition 
 before him, and accomplished an imperishable triumph. In the House 
 of Lords, the greatest military authority alive, the Duke of 
 Wellington, has pronounced his praise. Of Sir Robert Peel's speech 
 in the Lower House I have already spoken. To such renown our 
 acclamations would add nothing, but still we should have been glad 
 to have given to the hero of Candahar a hearty cheer, to have shown 
 him that what he did in Afghanistan is honoured here in Africa, to 
 assure him that wherever his name is mentioned it is received with 
 admiration, as identified with those noble troops whom he so nobly 
 led to victory. Sir, General Nott is only a sample of those visitors 
 belonging to the Military Service of India of whom there are several 
 worthy representatives now present, who will always be as ready 
 as he was to support the character of the service. And when, passing 
 from the Military, I turn to the Indian Civil Service, I am reminded 
 of the greatest political phenomenon in the universe. A joint stock 
 company, with a capital originally of ,30,000, has grown up into a 
 vast empire, extending over regions presenting every variety of 
 climate and productions, and peopled with uncounted millions. I 
 speak not, indeed, of mere territory or continued conquests. These 
 are things that have been often secured by brute force, and have 
 been attended by nothing save human misery. But who does not know 
 that the spread of British influence in India has been the spread of 
 Christianity, of civilization, of freedom, of good government ? and 
 that if India is to be saved at all it must be saved through British 
 power ? The moral influence of that British power depends mainly 
 upon the manner in which it is exercised by the civil servants of the 
 Company, and never did the character of the civil servants stand so 
 high. All the old nonsense about nabobs has passed away, and it
 
 IN PROPOSING THE HEALTH OF MR. JUSTICE KEKEWICH. 329 
 
 is now admitted that in no quarter of the world are the affairs of 
 Government managed with more intelligence or more integrity than 
 in India ; that in no quarter of the world are there clearer heads to 
 plan, and purer hands to execute, than amongst the gentlemen who 
 would be an ornament of any service, and who are the glory of that 
 most noble service, the Civil Service of India. And, if I might be 
 allowed to point to an individual, I would say that the gentleman 
 who spoke before me is a good specimen of the class to which he 
 belongs ; that, holding high office, he exalts, by his character and 
 talents, the office which he holds ; and that he is justly pointed to 
 by all his brethren as one of the first men in India. And now, 
 gentlemen, with that admiration for both the Military and the Civil 
 Service of India which I have most inadequately testified, and con- 
 scious that I have been feebly urging what needs no advocacy, I am 
 yet not sorry that I have had an opportunity of expressing the sen- 
 timents that you have been pleased to receive so well, and I now 
 give you " The Health of the Indian Visitors !" 
 
 IN PROPOSING THE HEALTH OF MR. 
 JUSTICE KEKEWICH AT THE SAME 
 DINNER. 
 
 [Commercial Exchange, Cape Town, March 27, 1844..] 
 
 The CHAIRMAN : Mr. Porter, we are so delighted with you 
 up here that we- wish to have another toast from you. 
 
 Mr. PORTER : Ready, Sir ! [A voice : "Ready, aye, ready.] 
 Gentlemen, you have received as it ought to be received the health 
 of the Judges. I wish now to give you the health of one who was 
 a Judge, who was an upright Judge of one who will be long re- 
 membered in this Colony, and who will be respected as long as 
 he is remembered our venerable friend who sits right opposite,
 
 33O IN PROPOSING THE HEALTH OF MR. JUSTICE KEKEWICH. 
 
 Mr. Kekewich. You have heard that he has recently retired from 
 the Bench, closing with honour an honourable career, and will soon 
 take his departure from amongst us. 1 1 would be affectation to 
 say that our venerable friend will, on the whole, regret his going. 
 No doubt he will be glad to sec old England's cliffs once more 
 
 Breathes there the man with soul so dead, 
 Who never to himself hath said, 
 This is my own, my native land ? 
 
 The soul of our old friend is not so dead. His feelings are as fresh 
 as the first day, he can kindle still, the head of snow has nothing 
 chilled the heart of fire. But he can never forget this Colony. It 
 is associated with too many recollections. After spending some 
 six and thirty years amongst us, it will be a aolemr: hour to him, 
 and like that in which he left his native land, when the anchor is 
 weighed in Table Bay, and he stands out into the deep. And 
 when he reaches England, and finds places changed, and people 
 changed, and the " old familiar faces " gone, then the thoughts cf 
 the old Colony, and the old circuits, and the old companions, will 
 return upon him, as a still small voice to be heard even in the 
 din of London as a vision to be seen even amidst the fair and 
 fertile scenery of his native Devonshire. He carries with him 
 the kind feelings of the entire Colony. The Colony is not rich ; 
 pensions arc not popular ; complaining of every penny spent 
 is a most comfortable thing ; yet when his Gracious Queen saw fit 
 to bestow upon our venerable friend a pension, not equal to his 
 deserts, but greater than his modesty had led himself to expect, 
 where was the man who said, " The old Judge has got too much :" 
 Not one ! He has the rare felicity of having no enemy. He takes 
 home with him clean hands, a sound heart, an unsullied character, 
 and the universal good will of the inhabitants. Let him enjoy his 
 honourable repose. The wandering Sailor (he knows what I mean) 
 has ploughed the main enough. And we are glad that he can now, 
 with 
 
 " All his toils and dangers o'er, 
 Cast anchor by his native shore." 
 
 Sir, I propose " The Health of Mr. Kekewich !"
 
 ON THE DEEDS REGISTRY. 33! 
 
 ON THE DEEDS REGISTRY. 
 
 [Legislative Council, June 22, 1844.] 
 
 ATTORNEY-GENERAL : I should wish to state that I have always 
 thought that Divisional Registries in this Colony could not work 
 well. The practice in England does not throw much light upon the 
 practicability of such things ; for the only three registries in England, 
 that of Yorkshire, that of Middlesex, and that of the unimportant 
 place of Kingston upon-Hull, are restricted to lands lying within 
 these districts, and are completely unconnected with each other and 
 with the rest of the kingdom. With us a district registry would 
 either be a most expensive thing, or a thing that would do more harm 
 than good. If the register of each district should be furnished with 
 a transcript from the Cape Town Registry of the contents of that 
 registry, or of those contents even so far as the property of the 
 particular district was concerned, the process would certainly be 
 very costly. If, on the other hand, parties were left at liberty to 
 enter in some book within the district such transactions as they 
 should think fit, without any means existing there of verifying the 
 correctness of the titles, no one could tell after a little time how 
 matters stood ; and for one good registry you would have substi- 
 tuted many bad ones. Separate district registries, therefore, I 
 regard as impracticable, except by means of a profuse and by no 
 means judicious expenditure. The question regarding a separate 
 registry for the Eastern Districts is not, of course, open to so many 
 obvious objections. A registry there would only involve two 
 registries for the Colony instead of one. It is true, indeed, that 
 to furnish to Graham's Town books containing the information 
 afforded by the books in Cape Town would cost as much as 
 similar books for any one division. But considering the importa 
 of the frontier, and its distance from Cape Town, the end in 
 view, from its superior importance, might appear to justify the 
 greater outlay. In fact, the measure is not one of principle but of
 
 33 2 O.V TH E DEEDS REGISTRY. 
 
 expense. To establish a registry for the Eastern Districts you 
 should begin by transcribing from the records here the transac- 
 tions affecting all the lands in those districts. Then you must 
 have there a competent Registrar of Deeds, with a suitable 
 establishment. And if the Cape Town Registry should still 
 continue to embrace the Eastern Divisions, the cost of the office in 
 Cape Town would not be reduced. Viewing the matter as one in 
 which you must balance public convenience against public expense, 
 I entertain grave doubts, as I believe most practical men on the 
 frontier do, whether the necessary outlay would be justified by the 
 good to be expected. It may, I think, be taken that a Registry for the 
 Eastern Districts would entail an expense of some 1,200 or 1,500 
 a year, besides what may be called its outfit ; and the difference 
 between the trouble, as at present, of sending papers down to agents 
 in Cape Town and that of sending them, as would then be the case, 
 to agents at Graham's Town, is not, I think, sufficiently onerous 
 to warrant us, at least just now, in making any alteration. My 
 hon. friend near me (Mr. Ebden) has referred to a bill drawn by 
 Mr. Harding, the object of which was to establish district 
 registries. The bill was very well drawn, but I deemed it 
 unnecessary to bring it before the Council, because, in fact, it did 
 not so much establish district registries, as I understand the term, 
 as provide for making the several Clerks of the Peace a sort of pub- 
 lic agency for effecting registries in Cape Town ; and because, in 
 general, it is better in these matters to leave the public completely 
 to themselves. This was my substantial difficulty, and it did not 
 appear to me that my friend, the Clerk of the Peace of Swellendam, 
 had got over it.
 
 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 353 
 
 ON THE DUTCH REFORMED CHURCH 
 GRANTS IN AID. 
 
 [Legislative Council, June 25, 1844 J 
 
 The ATTORNEY-GENERAL said : Having been called on, Sir, by 
 my hon. friend the Secretary to Government, in the course of his 
 very luminous and satisfactory statement, to bear my testimony as to 
 one important point in this case, and having been, I believe, the only 
 member of your Executive Government who ever entertained any 
 serious doubts about the expediency of this measure, it may not be 
 improper that I should shortly state the reasons which enable me to 
 give this measure, as it now stands, my cordial and unhesitating 
 support. The principle of the measure is simply this, to retrench 
 the public ecclesiastical expenditure in one direction, where it 
 may, in our opinion, be advantageously retrenched, in order to 
 increase the public ecclesiastical expenditure in another direction, 
 where it may, in our opinion, be advantageously increased. I do 
 not say, observe, that it will suffice to settle the question to show 
 that you propose to give to the Dutch Reformed Church more 
 money than you propose to take away ; for I can well conceive that 
 you may be so placed with regard to that Church that to act upon 
 such a principle would lead to much injustice. You may be so 
 placed that no additiona 1 amount which you may be willing to 
 grant can fairly justify you in touching the particular allowances 
 now in question. But if it shall appear, upon a calm examination, 
 that vou are not fettered by any consideration of the sort alluded 
 to, and arc at liberty to act, in this instance, in whatever manner 
 shall seem most conducive to the public good, then, I think, the 
 question will come to be, not whether you may with a safe con- 
 science carry this measure, but whether, with a safe conscience, 
 you can incur the responsibility of rejecting it. Let us, then, 
 attempt this calm examination. And in the first place, let us see
 
 334 ON THE DUT CH REFORMED CHURCH. GRANTS IN AID. 
 
 what the sound principle would be, supposing we were now, 
 for the first time, settling the nature of the support which the 
 general revenue should give to the Dutch Reformed Church ; in 
 other words, let us see what sort of assistance Government should be 
 willing to give, and the Church be desirous to get. Upon this 
 point there seem to me to be some principles too plain to be mis- 
 taken or disputed. Sinking, for a moment, the former history of 
 the Church as connected with Government, and keeping only in 
 view the nature of the aid which should be afforded by the one, 
 and received by the other, in an abstract point of view, I imagine 
 we shall all agree in thinking that as no Church could have any claim 
 to support from Government except as that Church is an instru- 
 ment for preserving and propagating Christianity and civilization 
 among the people, so the aid given by Government should be devoted 
 to the support of every Church considered as a great missionary 
 institution, and to those portions of its system most clearly and 
 directly calculated to carry out the sacred objects for the sake of 
 which alone it is endowed. If this be so, how do we stand ? 
 Had we now a clear stage, and were discussing the matter for the 
 first time, could my hon. and learned friend (Mr. Cloete) satisfy 
 Your Excellency or this Council, that according to the principles 
 I have stated, we were as much called upon to give clerks to the con- 
 gregations as to give ministers to the people ? I think not ; and 
 that for two reasons. I think, first, that you should first pay ministers 
 in preference to paying clerks, because the duties of the latter are of a 
 subordinate description, because those duties are confessedly not of 
 essential importance in the performance of Divine service, and be- 
 cause, even if they were, they are of such a nature that any minister, 
 worthy of the name, might, for the purpose of providing more 
 ministers, kindle a spirit which might lead, if necessary, to their 
 gratuitous discharge. This is one reason. And another reason 
 is, because, although it is well to assist a scattered population, 
 it is not well to do everything far any population ; and because 
 to contribute to the inferior expenses of the Church is, according to 
 general usage, a duty incumbent upon the worshippers themselves. 
 In such a case, the happy middle course is for the general
 
 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 335 
 
 revenue to provide the minister, that is, the missionary, and 
 having done so, to leave it to the congregation to provide 
 such other officers as may be requisite or seemly. By this 
 means you secure sufficiently the main object for which, as I have 
 before said, assistance should be given, and you secure at the same 
 time a frugal and economical establishment of Church officers, by 
 preventing every species of small ecclesiastical jobbery, as connected 
 with the number and salaries of persons whom the people them- 
 selves are to pay out of their own pocket. And it appears to me 
 that, since my hon. and learned friend (Mr. Cloete) is himself un- 
 able to see the propriety of our paying two clerks in one Church, or 
 paying an organist in any, if he were to carry out the same sort of 
 reasoning which has led him to this conclusion, he might in the 
 same manner see, that for the purpose of keeping salaries in due 
 subordination, and allowing the people to do something for them- 
 selves, the principle of paying Church clerks by the congregation is 
 intrinsically the sound one. It does appear to me, that in the due 
 co-operation of the Government and the people, the one paying 
 the minister, the other paying the clerk, the most good is to be 
 secured at the least cost ; and had we now no previous practice on 
 the point, we should all, t think, concur in this opinion. Assum- 
 ing, then, that upon general principle this system of paying 
 Church clerks is bad, that it is a system which if the thing 
 were to do again we would not establish, let us next in- 
 quire whether we stand in such position in regard to the Dutch 
 Reformed Church that we may properly introduce a better system ? 
 I have already admitted, and have no wish to withdraw the ad- 
 mission, that you may stand in such a position with respect to that 
 Church that you could not introduce evenan admitted improvemen: 
 without doing wrong. But before I adve.: t the grounds on which 
 1 believe that you do not stand in such a position, I would repeat 
 again v/hat fell from the Secretary to Government, namely, that the 
 objections sent in have not been sent in against this measure, but 
 against another measure not before the Council ; and that this 
 measure is justly obnoxious to very little of their force. All the 
 respectable persons whose sentiments have been read were of
 
 336 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 
 
 opinion, when putting those sentiments on paper, that the whole cf 
 the allowance heretofore granted to the officer called the clerk 
 would, in accordance with Your Excellency's Minute, be everywhere 
 withdrawn. With the modification which that project has since 
 received, the gentlemen in question were necessarily unacquainted. In 
 nine congregations, however, of the Dutch Reformed Church, from 
 which $0 per annum was to have been taken, 18 per annum will 
 still be retained by the clerk in his capacity as schoolmaster, th c 
 capacity in which that 1 8 per annum was first bestowed upon him ; 
 and yet it is not proposed, on that account, to lessen the number 
 of additional ministers as first proposed. And, Sir, if the votes of 
 the ministers and consistories of the Dutch Reformed Church 
 had been taken upon the measure as it now stands, I have 
 very little doubt that some of the objections which have been 
 urged would have been suspended ; that more of them would 
 have been modified ; and that if but few ministers came forward to 
 express their approbation, a good many would have refrained from 
 opposing the plan, and allowed us to take their silence for consent. 
 But coming at once to the objections as they stand, I observe that they 
 range themselves under two classes. One of these classes puts forth, 
 on the part of congregations, the plea of poverty. It alleges that, 
 however subordinate to the services of the minister the services 
 of the cleric may be supposed to be, yet that the assistance of such 
 an officer is highly conducive to the decent performance of Divine 
 worship ; and that the poverty of the people is such that to pay the 
 clerk would be a serious burthen on them. Now, it is here that 
 the difference between the old scheme and the new one becomes 
 of such importance, for, although ecclesiastics are grave people, and 
 sometimes announce even facetious things with gravity, I doubt 
 whether any man could maintain his seriousness while he asserted 
 that there is any one congregation in this Colony so very poor that 
 it could not be called on to raise 12 per annum to pay its own 
 clerk without creating a grievance no, not even for the purpose of 
 thereby ensuring four additional ministers to members of the same 
 church living in districts far removed from all spiritual help. Few 
 would, I think, have spoken merely for the 12 ; and although
 
 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 337 
 
 at some places Cape Town and Wynberg for instance 
 
 the reduction will be complete, we must not therefore 
 conclude that even there the weight will be too heavy 
 to be borne ; seeing that at Beaufort, where there will be no 
 allowance for a schoolmaster, and where the congregation will 
 therefore lose the whole sum now allowed for the clerk, Mr. 
 Fraser, and his two elders of whom he speaks, are disposed to 
 make the necessary sacrifice in order to secure the greater good ; 
 and I should imagine that other congregations similarly situated are 
 quite as able as that of Beaufort to act in the same manner. The 
 Secretary to Government has shown, in my opinion, that we have 
 not the slightest reason to suppose that there is a single congregation 
 in the entire Colony in which the additional charge to be entailed 
 by this measure whether it be 30 per annum, as at Wynberg, 
 or 12 per annum, as at most other places, or even a considerably 
 larger sum than either, which will be the case in Cape Town 
 will work oppressively ; for, in general, the numbers and worldlv 
 \vealth of the people will be found to correspond to the increased 
 amount required at their hands, and the paltry sum in question 
 will be raised without being felt. Indeed the matter, considered 
 merely in a pecuniary point of view, was, even as it was originally 
 broached, so unimportant, that were it not for the natural and 
 just jealousy with which any interference with the allow- 
 ances of the Dutch Reformed Church will always be viewed 
 were it not for the greater suspicions which might be supposed 
 to be entertained of the interference of what in substance 
 will always be the Episcopalian Executive Government of this 
 Colony were it not that this most trifling measure might, by 
 some, be regarded as the small end of a wedge, which, if once 
 inserted, might hereafter be used to separate completely the 
 Government and the Dutch Reformed Church were it not that 
 the ministers and members of that Church might see reason 
 to apprehend that, although we now gild the pill which they are 
 called upon to swallow, they may hereafter be called upon to 
 swallow pills much bitterer and not gilt at all were it not, 
 I say, for such considerations as those at which I have now 
 
 z
 
 338 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 
 
 glanced, I should scarcely have expected that anything in the 
 shape of opposition would have been offered to this measure. And, 
 having thus glanced at those considerations, I may remark that the 
 measure is certainly free from favouritism, or, to speak more properly, 
 that any apparent favouritism to be found in it exists in the case, 
 not of the English, but of the Dutch Reformed Church. To the 
 English Church you propose to give but a mere trifle more than you 
 take. Not so with the Dutch Reformed. That Church will have 
 bestowed upon it, over and above the amount retrenched, the 
 services of a minister and more, somewhere, I should say, in 
 money, about ^250 per annum 
 
 SECRETARY TO GOVERNMENT: The amount will be 162. 
 
 ATTORNEY-GENERAL : I am unwilling to pause upon a point 
 of figures, but I imagine I am correct in my calculation. By the 
 estimates as they are printed, the Church was to receive a bonus of 
 above ^90. To this we must now add the _i8 per annum to be 
 given to nine congregations. 
 
 SECRETARY TO GOVERNMENT : Right. The true amount will be 
 253 odd. 
 
 ATTORNEY-GENERAL : We shall say, for the sake of round 
 numbers, .250 per annum ; a sum which is as fairly a donation to 
 the Dutch Reformed Church as if it was wholly unaccompanied by 
 any such arrangement as that with which it happens to be coupled. 
 Circumstances have so settled it that the English Church obtains 
 by the operation of the measure no similar gratuity ; a matter 
 which is only mentioned to show that no sectarian feeling has had 
 anything to do with the scheme before us. I come now to the 
 second class of objections which I promised to discuss. Even 
 admitting, it is said, that, in principle, the people should pay the 
 Church clerks, admitting also that the people are not so poor as to 
 prevent the application of that principle ; this measure is objec- 
 tionable because it involves a breach of faith on the part of the 
 Colonial Government. As this is a serious allegation, as it is in 
 some degree alluded to by, I believe, every opponent of the 
 measure, and as the Proclamation of the loth of November, 1843, 
 is the instrument upon which it professes to be based, it will be
 
 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 339 
 
 proper that I should endeavour to clear up the meaning of that 
 Proclamation and dispel the obscurity which seems to rest upon it. 
 Let us begin at the beginning. How, I ask, did the Dutch 
 Reformed Church stand in relation to the Colonial Government in 
 the olden time ? You may read the answer to this question in the 
 Regulations of De Mist. According to those Regulations the 
 Church was to receive certain payments. True, but by what sort of 
 title ? Was it by a legal title ? by binding contract ? by anything 
 having the nature of law ? Could any person belonging to the 
 Church liave maintained an action for his money ? By no means. 
 Not at all. Quite the reverse. When explaining the principles of 
 the recent Church Ordinance in this Council, I showed that, under 
 the Regulations of De Mist, every grant out of the public revenue 
 to any Church in the Colony was to be matter of grace and not 
 matter of right ; that De Mist did not even contemplate that such 
 grants should be continual, but intended them merely to assist the 
 infancy of the settlement, declaring that, as soon as the people were 
 able, they should be required to support the Churches from their 
 own resources, of which ability Government must, of course, be the 
 judge, and the existence of which ability Government might take 
 for granted by simply withdrawing its support. Commissioner- 
 General De Mist might have settled the matter otherwise if he had 
 pleased it. He had a twofold character, one legislative and one 
 executive. I regard that portion of his Church Regulations which 
 relates to the payments and allowances to Church officers as being 
 merely the announcement of an arrangement of the Executive 
 Government, which, strictly speaking, the Executive Government 
 might, at any moment, change. But it is quite unnecessary to debate 
 this point, because, be the legal character of that portion of the 
 Church Regulations what it may, this is undeniable, that by those 
 Regulations no legal right was conferred upon any one ; every 
 allowance and payment was declared to be gratuitous ; and the 
 notion of a contract with the Church, or obligation on the part of 
 Government, completely set aside. We come now to the Church 
 Ordinance of 1843. In that Ordinance the principle of De Mist 
 was again affirmed. It was affirmed by this Council unanimously, and 
 
 z 2
 
 340 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 
 
 rot without due proof being made of its propriety. I have not the 
 Ordinance of 1843 before me, but it will be found that the second 
 section of it explicitly declares that no religious denomination in this 
 Colony shall be entitled, as matter of right, to claim anything whatever 
 from the public revenue ; that everything granted shall be deemed 
 to be perfectly gratuitous, and to be exclusively under the Queen's 
 control, and revocable at Her Majesty's will and pleasure. Words 
 cannot be clearer ; arid, as I have said, the Ordinance passed unani- 
 mously. When it was passed we were afraid (I speak for the 
 Government) that the motive for omitting from the Ordinance the 
 enumeration of the allowances which Her Majesty would probably 
 be pleased to continue to the Dutch Reformed Church might be 
 misunderstood ; we were afraid that simple people in the country 
 parts might take it into their heads that something novel was con- 
 templated in the general plan of Church support ; that rural agitators, 
 if there were any, might have it in their power to inflame the 
 minds of the people by telling them that Government meant to 
 throw their good old Dutch Reformed Church overboard altogether ; 
 and, under those circumstances, I drew up the Proclamation of 
 zoth November, 1843, which announced that, subject to the pro- 
 visions of the Ordinance of the same year (that is, subject to the 
 provisions of the second section as already explained) it was not 
 intended to propose any change in the payments to be made ; 
 and that there would be continued by the Government to the 
 Dutch Reformed Church the aid, support, and countenance 
 which it had hitherto enjoyed. What does this mean ? Let 
 me try its meaning by putting to you the construction opposed 
 to my own. It means, it is said, that there was thereby created 
 something in the nature of an express or implied contract, placing 
 every Church allowance, from the highest to the lowest, on an 
 unchangeable foundation, and removing it for all time to come 
 from all control, not merely of the Executive but of the Legislative 
 power. This conclusion is startling. What, when De Mist's Re- 
 gulations made grants revocable, when the Ordinance of the 
 same date with the Proclamation made grants revocable, is a mere 
 Proclamation to be held to make grants irrevocable ? This was
 
 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 34! 
 
 not and could not be the meaning. That meaning is very 
 simple ; and what was done was fair, rational, and bond, fide. To 
 evince, as the truth was, that the Government, at that time, had 
 no intention to alter any of the existing allowances, we said so, 
 and stated that those allowances would be paid as usual. But under 
 what condition ? Why, subject expressly to the provisions of the 
 Ordinance to which I have so often had occasion to allude. And 
 then came the declaration for the sake of which the Proclamation 
 was principally issued, that the aid, support, and countenance of 
 Government would still be given to the Church. Now to maintain 
 that this amounted to an unalterable arrangement seems to me 
 absurd ; for had an unalterable arrangement been intended at all, it 
 would have been made in the Ordinance, and not in the Proclama- 
 tion ; while not merely is it not made by the Ordinance, but a 
 perfectly opposite arrangement is therein explicitly established ; and 
 moreover, had the existing allowances been made permanent by the 
 Ordinance, another Ordinance might have altered their nature and 
 amount, while it seems now to be contended that this Council is 
 wholly divested of any right to interfere. Let me remind the Coun- 
 cil of anot her circumstance tending to show how completely all 
 payments to Church officers were, when we passed the Ordinance 
 of 1843, intended to be kept under the control of Government. 
 In the scheduled regulations, as they came originally from the synod s 
 some were introduced declaring that such an officer should receive 
 so much from Government, and such another officer should receive 
 so much more. We all agreed that such regulations should net 
 stand. We all agreed that we could not delegate to an Ecclesiastical 
 Council, meeting over the way, the appropriation of the public 
 revenue ; and, therefore, all regulations purporting to regulate 
 Government payments were struck out, and the views of 
 Government relative to Church all owances, as those views 
 were then entertained but not so as to fetter its statutory 
 freedom were left to be declared by Proclamation. Sir, I am led 
 to hope that in these remarks I have established these three 
 points : first, that, on general principle, clerks and sextons and 
 such officers should be paid by the people and not by Government ;
 
 34 2 ON TH E DUTCH REFORMED CHURCH. GRANTS IN AID. 
 
 secondly, that, altered as this measure has been, no plea of poverty 
 on the part of the people can be set up to prevent the application 
 of that general principle, considering the insignifiance of the change 
 involved ; and, thirdly, that the Proclamation of the loth November, 
 1843, contains nothing calculated to withhold either the Govern- 
 ment or this Council from making whatever arrangement may 
 appear to them most salutary ; and that no breach of faith 
 can, with any degree of fairness, be charged upon any 
 party. I might here stop. But there is another ground 
 which I cannot leave untouched. It is one in reference to 
 which I chiefly hesitated. It arises from considering that this 
 measure may be viewed as affecting, not two parties only as 
 most of the respectable gentlemen whose opinions we have heard 
 seem to apprehend but three parties, namely, the Government, the 
 Church considered in its collective cap acity, and the incumbents to 
 be discarded. This measure has been chiefly regarded as a question 
 between two of those parties : the Government and the Church. 
 Now, as far as these two parties are concerned, I have, for the 
 reasons given, no doubt or difficulty. Taken in its collective 
 capacity, it is absurd to say that when you take but ^709 I2s. 4d- 
 and give 963, leaving a balance of ^253 ys. 8d. as a clear donation 
 to the Church, in its collective capacity, that Church in that 
 capacity has any reason to complain. But the third party I have 
 spoken of has a right to be heard. I should be slow, indeed, to 
 lose sight of the case of the incumbents. No expectation of greater 
 good in another direction could reconcile me to interfere with the 
 pittance of these poor men, some of them probably decayed mem- 
 bers of the Church, who have seen better days men fallen back in 
 the world, and some, it may be, at that time of life which we ought 
 not to darken with distress if we could help it, but which we should 
 rather cheer with any little sunshine we have the power to create. 
 And I certainly would pause long before I would counsel Your 
 Excdlcncy to disregard the representations of humble men who 
 could, with justice, say, " Though nominated by the consistory we 
 were appointed by Government ; we are Government servants ; 
 and we beg that we may not be reduced to distress even for the pur-
 
 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 343 
 
 pose of appointing ministers elsewhere." But I feel myself relieved 
 from all anxiety upon this point. I am relieved from it by the very 
 nature of the arguments which are urged against this measure. I 
 am satisfied that the measure will interfere with no man's bread. 
 Why ? Because, as we have been told over and over again, the 
 officers in question, the Church clerks for example, cannot be done 
 without, because, bein myself a Presbyterian in principle, I know 
 enough of Presbyterian usages to know that the clerk is a man 
 not to be dispensed with, and that no congregation will ever dream 
 of dispensing with him ; and because, therefore, the question comes 
 to be one entirely between the Government and the congregation* 
 not a question as to whether the officer shall be paid, but merely 
 a question as to who shall pay him. And, under these circum- 
 stances, it does appear to me that no congregation, considering the 
 object to be attained, ought to hang back and refuse so very mode- 
 rate a contribution towards advancing the general usefulness of the 
 Church of which it is a member* Did the Government seek to make 
 anything at the expense of the Church, the Church might well 
 complain. But observe the liberality with which the Church is dealt 
 with throughout. Endowments have long since been promised for 
 three additional churches so soon as they shall be built Therefore, 
 lest any man should say, " Oh ! the Government seeks out of this 
 saving to fulfil its own previous engagements," the Secretary to 
 Government has been directed to announce that the four additional 
 ministers now contemplated are to be completely independent of the 
 three other endowments alluded to, which will be made good the very 
 moment the conditions are fulfilled. Irrespective altogether of this 
 measure, those three ministers will be given ; and it is for the pur- 
 pose of going into fields of religions usefulness not contemplated 
 by the Committee on Ecclesiastical Wants that four additional 
 ministers under the Dutch Reformed Church are to be provided. 
 It appears to me that with the explanations now given all opposition 
 ought to be withdrawn. No man who knows anything of this Colony 
 can deny that there are many districts in which the new ministers 
 contemplated may be most usefully employed. Do not interpose 
 between those ministers and those places. It is very easy for my
 
 344 ON THE DUTCH REFORMED CHURCH. GRANTS IN AID. 
 
 hon. and venerable friend (Mr. Breda) to say, "Oh ! with such a 
 surplus you did so and so, and now, with such a greater surplus, you 
 should do so much more," and, by stating a sum in the rule of three, 
 demonstrate that you should give the additional ministers uncondi- 
 tionally. But to act upon this principle would ultimately absorb 
 your whole surplus revenue, and would not be just if it were 
 practicable, and would not be practicable if it were just. The 
 sounder principle is, to retrench, if you justly can, and add what 
 you can to your savings, and then bestow the whole in sending 
 missionaries to carry the word of God into remote places, 
 places in which, considering the distance from all means of re- 
 ligious instruction, a distance which condemns men to perhaps only 
 an annual attendance on public worship, it is wonderful that 
 Christianity should be preserved. I would, again, express my hope 
 that the explanations made will be deemed satisfactory. I have 
 meant to say nothing harsh of anyone ; and if I have said anything 
 which at all appears to be so I am sorry for it. The clergymen 
 whose views have been communicated are entitled, I think, to a 
 candid construction of their conduct. We all know how they are 
 situated; placed at the head of a consistory whose opinions, whose 
 prejudices, perhaps, they must necessarily respect ; and both clergy- 
 men and consistories placed amongst a people who certainly have, 
 in the abstract, no fondness for taxation of any kind or to any extent. 
 The views of all ministers circumstanced like those of the Dutch 
 Reformed Church must, in matters of this kind, be made up, in 
 some degree, of the views of their flocks ; and what powerfully 
 impels me to call for this charitable construction of their conduct 
 is, that some of the strongest remarks which fell from my hon. 
 friend the Secretary to Government had reference to Swellendam. 
 Now, all who know him will agree that the minister of Swellemdam 
 is a man who is well worthy of his office, who is ever mindful of 
 his deep responsibilties, who acts " as ever in his great taskmaster's 
 eye," who leaves no human means untried to spread his message, 
 and by whose exertions, aided by the liberality of his people, a 
 missionary has been attached to his church at an expense, I think, 
 of j6o per annum. If Dr. Robertson shall see reason for it he
 
 ON IMMIGRATION. 345 
 
 will give no further opposition ; and other ministers will do the 
 same. The opposition of the great majority of the ministers of 
 the Dutch Reformed Church has been referred to, and not 
 improperly. I respect such opposition, and will frankly confess 
 that I should not willingly press anything relative to the Church, 
 however good in my own eyes, against the clear and decided opposi- 
 tion of the clergy. They are men who have justly obtained great in- 
 fluence. They are, I believe, a great bond of connection between 
 their numerous people and our Government ; and may now remove 
 prejudices, and now explain errors, and now expose ill designs, in a 
 way which no other men in this Colony can do, owing to the fact 
 that the Dutch colonists have a warm feeling for their ministers, a 
 feeling inherited from the pious people from whom they sprang ; 
 while, on the other hand, if the ministers themselves become 
 dissatisfied, " if the salt have lost its savour," these great benefits 
 may be placed in jeopardy. These, Sir, are my sentiments. And 
 as I have every reason to believe that there does not breathe any 
 member of the Government one whit more hostile than myself to 
 the reverend body of which I have been speaking, I will conclude 
 by expressing my trust that this measure will be received in the 
 spirit in which it is presented ; that it will be hailed as a boon by 
 the large and respectable community whose best interest it is intended 
 to promote by adding materially to its present means of usefulness, 
 and enabling it to send more labourers into a field which it is rhe 
 boast and blessing of the Dutch Reformed Church of this Colony 
 that, under no small difficulties, it has already cultivated to so con- 
 siderable an extent. 
 
 ON IMMIGRATION. 
 
 [Legislative Council, June 26, 1844.] 
 
 ATTORNEY-GENERAL : I quite agree with my hon. friends that 
 this is not a fitting time to enter on any discussion of the emigration
 
 34-6 ON IMMIGRATION, 
 
 question. For my own part I shall not enter on it. I have 
 mainly risen for another object, which will be very speedily des- 
 patched. My hon. and learned friend (Mr. Cloete) used some ex- 
 pressions about the length of time during which he and others were 
 endeavouring in vain to stimulate the Executive in reference to the 
 present subject, and as I am, I believe, the oldest member of that 
 Executive, I deem it right to have one or two plain principles clearly 
 understood. We certainly have had the subject of European labour 
 under discussion more than once, and I have been called upon to 
 talk my share in those debates. Having upon one or two occasions 
 declared my sentiments at some length, and I hope with sufficient 
 clearness, I venture to appeal to the recollection of the Council, and 
 the record of our proceedings, to bear me out in stating that my 
 sentiments (and so far as I know the sentiments of the whole 
 Executive Government of the day were in unison with mine) were 
 to this effect and no other. I said that as long as you had an un- 
 cancelled debt, which you were directed to redeem by surplus revenue, 
 you could not divert, in opposition to the express reiterated orders of 
 your masters, any portion of that surplus revenue to the purpose of 
 emigration. I said that even were the debt cancelled, my opinion 
 was, that of the two the Colony wanted roads more than immigrants, 
 and that in any litigation between these rival undertaking 5 
 I should rank myself as counsel for the roads, believing that 
 to begin with immigration would be to begin at the wrong 
 end. But I stated clearly and distinctly, and oftener than once, that 
 when you had happily succeeded in clearing off your debt, and had 
 made arrangements for improving the miserable internal communi- 
 cations of the Colony, I should be decidedly in favour of giving a 
 moderate and well-considered system of Eur opean immigration a 
 fair trial. And, Sir, I am glad to see that the time of trial has now 
 come. For some years your exports generally, and especially your 
 wools, have been increasing so considerably, and your import duties, 
 partly owing to the natural effects of that increase and partly to the 
 exertions of the very ill-paid officer at the head of the table, having 
 run up from ,40,000, which five years ago was deemed a high 
 estimate, to upwards of 70,000 a year, below which we have no
 
 ON IMMIGRATION. 347 
 
 reason to think that they are likely to decline, your finances have 
 been steadily improving, and promise to improve still more. In 
 the course of the last three years the paper debt has been gradually 
 extinguished. Under the superintendence of the Central Board, 
 combining the principle of local assessment with that of contribution 
 from the general revenue, your roads are in progress of improvement, 
 and the introduction of additional labour now, instead of preventing 
 such improvement, would materially promote it. Under these 
 circumstances, I should be inconsistent with all my previous de- 
 clarations if I hesitated to agree with the proposal to try the effect 
 of importing European labour. But while I was most favourable 
 to a fair trial of the experiment, and while I was most 
 anxious that the experiment should succeed, I distinctly 
 declared that I did not think it either could or would suc- 
 ceed to the extent which more sanguine men anticipated. And 
 upon this subject my impression is still unchanged. I said 
 that the Boer, in general, would not like English labour, 
 and could not pay for English labour. Here again my 
 impression is still unchanged. I said that the natural, and I feared 
 the inevitable, tendency of the imported labourers would be to 
 settle in your larger towns, and forsake the country districts in 
 which their labour is said to be most wanted. And here, again, 
 my impression is still unchanged. But there is, notwithstanding, 
 room. By bringing in well-conducted domestic servants you may 
 liberate a sort of labour now kept in the towns, which will neces- 
 sarily then seek the country ; good artificers in moderate numbers 
 are certain of employment ; and even in regard to labourers of 
 another description, more may be done than I can see reason to 
 anticipate. The plan of my hon. friend, the Secretary to 
 Government, appears to me to be a very good and wise one. On 
 one or two points I made at first objections ; but his reasons have 
 satisfied me that ke is quite right and that I was quite wrong. 
 His bounty system, which I regarded as too complicated, I now 
 perceive to be the most advantageous that could have been selected. 
 By it you will assist those only who are disposed to assist them- 
 selves. You provide by it a master for the immigrant on his
 
 34-8 ON IMMIGRATION. 
 
 arrival, and you let the immigrant know before he comes here 
 what wages he may expect. When parties applying for bounty 
 orders arc obliged to state what they are prepared to give for a 
 year's service, the real wants of the Colony will be discovered. By 
 this means you can measure the demand for English labour which 
 truly exists, and ascertain the rate of remuneration to be given for 
 it. You can, by this means, feel, as it were, the public pulse. 
 When any man offers a twelvemonth's employment with such and 
 such wages for the husband, and such and such wages for the wife, 
 and such and such provision for the children, no harm can come of 
 providing a labourer and his family for that man. The evils of 
 wholesale immigration will be altogether avoided. And without 
 such a check I see not how this Colony should escape the consequences 
 which have flowed from a less cautious system in other colonies. 
 I hold in my hand a newspaper containing the recent report of the 
 Committee of the Legislative Council of New South Wales upon 
 the subject of the prevalent distress in Sydney, and I trust in God, 
 Sir, that you may never have laid before you from this Council a 
 document of a similar description. Why, it is probably no great 
 exaggeration to say that a number of men, women, and children are 
 at this moment starving in Sydney and its neighbourhood, which 
 it must have cost _ 100,000 to introduce, and now the Colony 
 would gladly, if it had the means, give another ^100,000 to get 
 them sent away again. The main reason for this unhappy state 
 of things appears to be the recklessness with which immigrants were 
 introduced upon the strength of great public works and the maxim 
 that there could never be too many. But if we abide by the principle 
 of ascertaining the public want before we bring in English labour, it 
 is, in the nature of things, impossible that we can ever import it in 
 axcess. The operations of the Central Board will, of course, assist 
 the working of the experiment ; and, in my opinion, it may be 
 carried into effect with the most perfect safety, regulated, as it is, 
 by a principle which will necessarily restrain every tendency to get 
 beyond due bounds.
 
 ON THE LAGULHAS LIGHT. 
 
 349 
 
 ON THE L'AGULHAS LIGHT. 
 
 \LegisIative Council, June 26, 1844.] 
 
 ATTORNEY-GENERAL : I should not rise to follow my hon. and 
 venerable friend, being entirely on the same side, but that it will, 
 in my opinion, be creditable for us to pass an unanimous vote ; and 
 because a little explanation may possibly have the effect of securing 
 an unanimous vote. What my hon. friend has stated is, after all, 
 a very strong argument I mean the argument based upon common 
 humanity ; for surely we ought not to be very nice to calculate 
 mere profit and loss, or the equivalent, which the shipping of this 
 Colony are likely to receive for the intended vote when we have 
 before us the hope of preventing the recurrence of such harrowing 
 calamities as those which my hon. friend has seen and spoken of. 
 But upon these points I shall not enlarge. 1 had the honour of 
 being in the chair at a public meeting in i 840, at a time when the 
 public sympathy was stimulated by a recent shipwreck, attended 
 by much loss of life, when I had an opportutity of saying what 
 occurred to me as fitting ; and I think my hon. friend opposite 
 (Mr. Ross), who was himself present, will agree with me that, con- 
 sidering the spirit which prevailed at that meeting, and the subscrip- 
 tion by which it was followed up, a \ote of ,5,000 would not be 
 unpopular amongst the humane and liberal men who came for- 
 ward in so creditable a manner upon that occasion. Waiving, 
 however, these considerations, it must never be forgotcen that to 
 vote j5,ooo is not to vote a lighthouse. It may be that the public 
 in general labour under a delusion respecting its nature and 
 advantages. It may be that, as some say, a lighthouse at L'Agulhas 
 would create more shipwrecks than it would prevent. Grant this ; 
 yet, surely, as my hon. friend the Secretary to Government has 
 explained, the mischief is not done by a mere vote of the money ; 
 surely, we may safely leave the effects of a light to be determined
 
 350 ON THE L'AGULHAS LIGHT. 
 
 by the Elder Brethren of the Trinity House, without whose approval 
 nothing will be undertaken. Surely if the work passes muster at 
 Lloyd's, it may well pass muster here. The attention of Her 
 Majesty's Government will be called to the point by His Excellency's 
 despatch ; and as in London the best evidence that the world can 
 produce in the shape of scientific men and practical men, and men 
 who know the coast familiarly, is, at all times, obtainable, we may 
 rest assured the question will be placed in the hands most com- 
 petent to decide upon it properly. If we were about to begin a 
 building at once, I could understand the objections of my hon. 
 friend ; but when we are only showing what this Council will be 
 prepared to do, in case the work shall be considered, by competent 
 persons, one calculated to attain the end in view, then I submit 
 that observations about leading people into danger, and so on, are 
 altogether inapplicable. With reference to the fears which my 
 hon. friend expressed, I can only say that I do not concur in enter- 
 taining them. His opinion upon this point must be a better one than 
 mine, but we wholly disagree. It strikes me that a light at night 
 must be most serviceable, considering the nature of the coast ; and 
 that a lighthouse which would show at considerable distance would 
 be useful even during the day to enable ships to sight it and correct 
 their reckoning. I cannot but imagine that the strength of the cur- 
 rents in that neighbourhood is such as sometimes to puzzle the most 
 careful mariners to tell accurately where they are ; and that some 
 conspicuous object might materially assist, and could not well 
 mislead them. These are my ideas. They may be most erroneous, 
 as may the ideas of all the mercantile and nautical men who have 
 subscribed to the fund, of the insurance companies in India who 
 have also contributed, and of many other people who should know 
 better ; but be that as it may, if we be ignorant, there are, in 
 London, numbers who are skilled, and to them the question stands 
 referred. If the work be one which ought to be erected, I see no 
 mode of erecting it so feasible as that now proposed. Situated 
 as the matter is, we shall not be able to raise much more by 
 voluntary donations. The Mauritius, for instance, subscribed, 
 as we were led to think, 2,000 ; but then came their commer-
 
 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 351 
 
 cial embarrassments, and after that the prevalent report that the 
 Trinity House would do the business from their own resources, and 
 so from Mauritius we have never received a single farthing. I fear 
 that the Home Government will not, without the co-operation of 
 this Colony, take the work in hand ; but there is every reason to 
 believe that they will be ready to assist you. Under these circum- 
 stances, the argument of the Secretary to Government seems con- 
 clusive. If you grant one-half the estimate, or nearly so, say ^5,000, 
 you will probably receive the remainder from Her Majesty's Gov- 
 ernment ; and you may, at all events, go with a good grace to ask 
 for it. I trust that we shall act upon no penny-wise or pound- 
 foolish principle in this case, nor be found debating how many ships 
 are foreign and how many colonial ; but, now that we have got 
 the means, taking the lead as xve ought to do, though without beg- 
 ging the question one way or other relative to the utility of the 
 project ; and only providing the necessary means in case it shall be 
 found that a lighthouse at L'Agulhas will really tend to avert, in 
 future, such losses of life and property as have already taken plac e 
 at that fatal spot. Let us leave the question of expediency to the 
 decision of the Home Government ; let us make a liberal grant con- 
 ditional upon their approval of the measure ; and, above all, let us, 
 in whatever we do, be, if possible, unanimous. 
 
 ON PRIVILEGES OF THE COUNCIL. THE 
 JUDGES. 
 
 [Legislative Council, July 4, 1 844.] 
 
 The bill for enabling the Trust and Assurance Company to sue 
 and be sued was returned by the Judges, who reported it free from 
 legal impediment, adding " if duly passed and promulgated." 
 
 The ATTORNEY-GENERAL said : It appears tome that may fitly 
 take this opportunity of offering some remarks to Your Excellency
 
 352 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 
 
 and the Council, with reference to the circumstances in which the 
 bill just returned from the Judges is now placed. Though anxious 
 to take the earliest possible opportunity of adverting to the im- 
 portant principle which I conceive to be involved, I yet admit that 
 if the report of the learned Judges had pursued the common form of 
 such reports, I could not legitimately have raised at present any 
 discussion of difficulties of the existence of which we had received 
 no notice. The report, however, is not in the common form. It 
 contains matter which will not be found, I think, in any former 
 report on record. Under these circumstances, I have a right to 
 assume, not, indeed, that the Judges have in their own minds 
 determined anything with reference to this Ordinance, but that 
 they mean to put Your Excellency a little on your guard, by inti- 
 mating that, in their opinion, there is, or may be shown to be, 
 something questionable about the manner in which this Ordinance 
 hasbeenormay be dealt with which may affect its validity. I learned 
 yesterday the nature of the difficulty which has been started ; and 
 although I might, perhaps, guess at the ingenious quarter in which 
 it originated, I shall not enter the judicial chamber, or speculate 
 upon the extent to which the views of any one Judge may be the 
 views of the rest, but shall assume for the sake of convenience 
 that the three Judges are united in opinion, and shall throughout 
 allude to them in their collective and judicial capacity. Bearing 
 in mind, therefore, that the report upon this Ordinance does not bind 
 any of the Judges to any sort of opinion that, strictly speaking, it 
 merely saves some point or other for future determination and 
 that, whatever the individual ideas of any member of the Bench may 
 be upon the point, the Bench itself is committed to no judgment 
 whatsoever I shall state what I believe the point to be, ard give 
 my own humble opinion upon its merits. The history of the case 
 is shortly this. In 1841 we passed an Ordinance which, for the 
 sake of argument, I shall admit to be identical with the Ordinance 
 now before us. Some changes have been made in the latter, but I 
 shall concede that they have been too slight to affect the question of 
 identity. The Ordinance of 1841, as the Secretary to Government 
 stated the other day, was duly transmitted to London to be
 
 OX PRIVILEGES OF THE COUNCIL. THE JUDGES. 353 
 
 submitted for Her Majesty's pleasure. It so happened that it lay 
 over for a long time. But at length a despatch was received from 
 Lord Stanley in answer to one from Sir George Napier, stating that 
 the assent of the Queen would be found conveyed in a certain 
 former despatch to which his Lordship referred. Consulting the 
 despatch thus referred to, it was found that it conveyed the Royal 
 Assent, not to the Trust and Assurance Company's Ordinance, but 
 to the Board of Executor's Ordinance. This being the case, and a 
 respectable proprietary being anxious for an Ordinance, the 
 Executive Government were desirous, if they could, to assist them, 
 and Your Excellency instructed the Secretary to Government to 
 take officially my opinion upon the subject. I was of opinion, 
 after considering the Royal Instructions, that Your Excellency 
 might, under all the circumstances, properly propose or assent to a 
 new Ordinance, to be framed even in the very same terms as the 
 old ; and, anticipating the point which has since arisen amongst 
 the Judges, I gave some reasons for not deeming it inapplicable. 
 The result was the introduction of the present Ordinance, the 
 passing of it by this Council, and the report of the learned 
 Judges, which I set out with noticing as peculiar. Sir, the point 
 which has been made is this. By the i/th section of the Royal 
 Instructions it is declared thdt any Ordinance of this Council 
 repugnant to or inconsistent with those Instructions shall be null and 
 void. The 28th section runs thus " And it is our will and pleasure 
 that you do not propose or assent to any Ordinance whatever to 
 which our assent has once been refused, without express leave for that 
 purpose first obtained from us." The 3 1st section provides for the 
 transmission of Ordinances to England/ and then states "and i 
 on any occasion, our pleasure should not be signified to you upon 
 any such Ordinance as aforesaid within three years next after the 
 date thereof, then, and in every such case, it is our pleasure that 
 from and after the expiration of such term of three years such 
 Ordinance shall be deemed to be disallowed, and shall thenceforth 
 cease to have any force or effect within our said settlement." 
 Reversing the order of these sections, and applying them to the 
 present case, it is argued that the Ordinance of 1841, not having 
 
 AA
 
 354 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 
 
 had Her Majesty's pleasure declared upon It for three years, has 
 been by the 3ist section disallowed ; that this disallowance is 
 a refusal under the z8th section and that unless proof is given of 
 express leave to introduce a new Ordinance it is repugnant to the 
 Royal Instructions, and, by the iyth section, void. This is the 
 argument which, for convenience, I have said that I would call 
 rhe argument of the Judges. I do not, as I have already stated, 
 understand all the Judges to have agreed upon the validity of this 
 argument. Their report leaves it completely an open question 
 whether, if published in the usual manner, this Ordinance, if 
 brought into Court, would or would not, matters standing as they 
 do, be declared void. They do not report that there would be 
 any impediment to the working of a law framed in the terms of 
 this Ordinance and duly passed. On the contrary, they state that 
 there would be none. But they, or some of them, conceive 
 that an impediment may arise to the due passing of this 
 }aw, that this law might not be duly passed by its 
 mere promulgation by Your Excellency, and that the 
 Colonial Courts might, notwithstanding such promulgation, legally 
 declare it void, unless proof were made of express leave previously 
 obtained. Sir, I do not agree in this construction. I am, as a 
 lawyer, of opinion, of course with all deference to higher authorities, 
 that this construction is an unsound construction ; and I think I shall 
 be able to satisfy Your Excellency and the Council that it rests upon 
 no good foundation. Its first assumption is a somewhat bold one. 
 [t assumes that the constructive disallowance of the 3ist section, 
 arising merely from the three years' lapse, is the very same thing as 
 having once been refused observe the words "once been refused" 
 as mentioned in section 28. Let us pause a moment upon this 
 proposition and weigh it. It appears to me that an Ordinance 
 might well be deemed to be disallowed under section 31 without 
 being fairly in the predicament of having once been refused, within 
 rhe true intent and meaning of section 28. I am not prepared 
 to admit that a prohibition against assenting to an Ordinance which 
 has once been refused, necessarily extends to an Ordinance which 
 has been wholly overlooked for a term of three years, and which,
 
 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 355 
 
 therefore, comes to be deemed as disallowed. Common sense, I 
 think, calls on us to distinguish. The meaning of the prohibition 
 in the z8th section is plainly this "Do not set up your judgment 
 against our judgment. When we have directed our mind to a pro- 
 posed law, and have refused that law, do not, without leave, assent 
 to the same law. Deem our mind to remain unchanged until 
 you know the contrary, and do not, by returning refused Ordinances, 
 one after another, force us to continue reiterating our rejection." 
 Is this language applicable to the case of all Ordinances which have 
 lain over for a space of three years ? I think not. Why ? Sir, a 
 variety of cases might be put to show why. Suppose, by shipwreck 
 on the water, or accident on land, an Ordinance to be lost on its way. 
 Suppose that, when nothing is heard of it, the Colonial Government 
 writes upon the subject and then learns that the Secretary of State 
 has never seen it. Suppose that, in the meantime, the three years 
 have gone by. Sir, we all agree that the Ordinance is to be deemed 
 disallowed. True, Her Majesty never had it before her ; true, she 
 never had an opportunity of exercising her royal mind upon it ; 
 true, there may be every reason to think that she would not have 
 refused it had she seen it ; but still, I admit, it can operate no 
 longer ; it must be deemed to be disallowed. But am I therefore 
 bound to admit that it is incompetent for the Colonial Government, 
 without express leave, to introduce it again into the Legislative 
 Council ? I conceive not. I conceive that the meaning of the 
 three years' clause does not carry me so far. It means to prevent 
 Ordinances upon which no judgment of Her Majesty had ever been 
 pronounced from becoming permanent by accident. But for this, 
 or some similar provision, a law might be promulgated in the Colony, 
 and, although one which Her Majesty might not have approved of, 
 it would operate permanently in case it chanced to escape the 
 Queen's notice. Therefore, in order to give but a short life to 
 every Ordinance which has not be en actually brought before Her 
 Majesty and approved of by her, a provision is introduced confining 
 its duration to three years, a rule which excludes all risk of unautho- 
 rized legislation, since, proceeding from three years to three years 
 your successive Ordinances, the Queen must ultimately become well 
 
 AA 2
 
 356 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 
 
 aware of what you are about. To assert, therefore, that the actual 
 refusal mentioned in one section, and the constructive disallowance 
 mentioned in the other, are perfectly equivalent, and that by the 
 prohibition the Governor is directed not to propose or assent to 
 any Ordinance which, from even proved accident, has lain over for 
 three years, in just the same manner as he is debarred from intro- 
 ducing or assenting to, without express leave, Ordinances that have 
 once been refused, appears to me to be illogical. I consider that 
 a construction which would absolutely prevent the Governor of 
 this Colony from approving of any law which, though a good law, 
 a necessary law, a law which Her Majesty would, no doubt, approve 
 of, was nevertheless a law which, from accident or oversight, either 
 here or in England, had gone astray for three years, would be a very 
 inconvenient construction ; and I do not feel that I am driven to it 
 by the Royal Instructions. But I will not rest here. I will go 
 further. I will admit for the sake of argument, but only for the sake 
 of argument, that the constructive disallowance to be inferred from 
 the three years' lapse, is, to all intents and purposes, an actual 
 refusal ; and I still deny that the learned Judges could, without a 
 most unwarrantable assumption of authority, call upon Your Excel- 
 lency and this Council for credentials, for proof of leave obtained, 
 for any evidence, in short, of the propriety of what you are about. 
 Let it be understood that I do not give up the distinction which I 
 have already pointed out, and that I only- waive it for the present 
 in order to avoid dispute and get on with the discussion. And now, 
 Sir, I respectfully maintain that the Judges, as Judges, do not and 
 cannot know anyone of the facts which, nevertheless, they must be 
 taken to know in order to found the position which is attempted to 
 be taken up. I separate altogether John Wylde and William Menzies 
 and William Musgrave from the three Judges. The former may learn 
 from your Excellency, or the Secretary to Government, or myself, 
 any matter they think fit ; but the latter can know nothing of which 
 they are not authorized to take judicial notico ; and I repeat 
 that they cannot take judicial notice of any one of the facts 
 essential to the support of the position in question ; and I 
 therefore maintain that, under these circumstances, they are
 
 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 357 
 
 called upon, as lawyers, to presume everything done by the 
 Governor and this Council to be rightly done, and done in 
 accordance with the provisions of the Royal Instructions. 
 I shall take these essential facts one by one, and, first and foremost, 
 I ask how the Judges knew that any Ordinance like the present 
 passed in 1841 ? It may be answered, perhaps, because the Govern- 
 ment Gazette in that year contained a draft of the Ordinance. Is 
 that draft any evidence of the fate of that Ordinance ? Certainly 
 not ; for, after being published, it may be withdrawn or negatived 
 in Council ; and it is to be recollected that the Ordinance in ques- 
 tion never was promulgated. What next shall we say? Shall we 
 say that all the proceedings of this Council are in contemplation 
 of law cpen, and that the Court will take judicial notice of 
 them ? Sir, I deny it. From beginning to end of the Royal 
 Instructions there is nothing to support any position of the 
 kind ; and all analogy is against it. This Council is not like a 
 Court of justice, which, unless some express authority is given, should 
 be construed to be an open Court. When, here, as in the House of 
 Commons, it is competent for any single member, at any time, to 
 move that strangers must withdraw, is it possible to argue that our 
 proceedings are to be considered public ? Will it be contended that 
 this Council could not, if it pleased, decide the whole fate of any 
 given Ordinance with closed doors ? If this is denied, I should like 
 to hear the reasons upon which the negative is rested. You do not 
 admit strangers during prayers ; you do not admit strangers during 
 the reading of the minutes ; and in the same way, you need not 
 admit strangers at any part of your proceedings. It may be, or it 
 may not be, that we have occasionally John Wylde, or William 
 Menzies, or William Musgrave present ; but we have never any 
 Judges listening. It may be, or it may not be, that we have 
 Mr. Buchanan taking notes of what we say ; but we have no 
 reporter comtemplated by our constitution. It is solely by 
 courtesy, or sufferance, that any stranger remains in this 
 room during our proceedings ; and I protest against the doctrine 
 that what is learned by mere courtesy and sufferance can be 
 taken judicial notice of. Therefore, I ask again, how do
 
 35 ON PRIVILEGES OF THF COUNCIL. THE JUDGES. 
 
 the Judges, as Judges, know that any Ordinance passed this 
 Council in 1841 ? Could any individual Judge say " Oh ! I was 
 in the Council-room on such a day, and I heard the Secretary 
 to Government make a speech in which he stated that an Ordinance 
 had passed in 1841, and his statement, as a public officer, is 
 proof of the fact." What, when it is remembered, in addition to 
 what I have already urged, that the Judge's presence was but an 
 accident, that the Secretary's speaking at all was but an accident, 
 and that the Secretary might, by an accident, have been wholly 
 mistaken in what he said, and was not called on to say anything, 
 is it possible to rest the point upon such proof as this ? Again, 
 therefore, I repeat, that the Judges, as Judges, cannot know that 
 any Ordinance passed this Council in 1841. The public may 
 read the draft in the Government Gazette ; they may read in the 
 Cape Town Mail that the draft passed into a law ; but the 
 Judges in their judicial capacity are wholly uninformed. But 
 let me make another admission. Let me admit that the Judges 
 might know, in some such way as has now been indicated, that 
 the Ordinance passed this Council. What, then, was the next step ? 
 The next step was for the Council to submit it for the Governor's 
 consideration and how can the Judges know that His Excellency 
 did not negative it ? The Governor has, in his executive capacity, 
 a negative, by which he can stop any bill, even after it has passed this 
 Council, from becoming an Ordinance. Your sitting here, Sir, as 
 President of this Council does not deprive you of your independent 
 negative as Governor. The old practice so clearly recognized the 
 separation of the functions that it required a deputation of members 
 to be appointed to take up the bill to the Governor ; and although 
 the practice has fallen into disuse, the principle remains the same. 
 I therefore ask, how can the Judges know that the Ordinance of 
 1841 was not quashed by the Governor's negative? To be sure 
 the Secretary to Government might tell the first clerk that no veto 
 had been exercised, and from the first clerk through the other 
 clerks in regular descent the fact might become known, and it 
 might then be caught up by the messenger, and ooze out through 
 him to some other messenger, and so reach the Judge's chamber ;
 
 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 359 
 
 but where is there any legal, official, or authoritative channel 
 through which the Judges, as Judges, can obtain a knowledge as to 
 whether the Ordinance in question, which was never published, was 
 negatived or not ? It thus appears that the Judges cannot judicially 
 know that the bill ever passed the Council ; and that, even 
 admitting that they could know that it had passed the Council, they 
 cannot know its fate when laid before the Governor ; and with- 
 out assuming both these points there is, it is obvious, no 
 room for any argument at all. We can easily suppose that, under 
 the influence of the objections made by the then Attorney and 
 Solicitor-Generals of England, Lord Campbell and Sir T. Wylde, 
 to the Board of Executors Ordinance, the Governor might have 
 considered the Ordinance for the Trust and Assurance Company of 
 1841 objectionable, and have been led to negative it. But after- 
 wards it is found that the objections to the Board of Executors 
 Ordinance have been withdrawn by Sir Frederick Pollock and Sir 
 William Follett, and that the Ordinance has received the Queers 
 Sanction. Then the Governor, perceiving that the ordinance 
 which he had negatived has ceased to be of an obnoxious nature, 
 is pleased to order its re-introduction. In such a state of things 
 the position which I am combatting would not apply the least in 
 the world. And yet I defy any man to show that the Judges can 
 know judicially that this very state of things did not exist in this 
 very case. For these reasons, therefore, I, with but small preten- 
 sions to legal acumen, and pretensions perhaps as small to the rarer 
 attribute of common sense, do yet venture to maintain that, in the 
 case now before us, no ground is laid upon which any substantial 
 argument can be rested, and that no ingenuity can cover its defects. 
 I admit indeed, that there might have been judicial evidence of 
 those essential facts which must now be assumed without any 
 evidence, if they are assumed at all. The 32nd section of the 
 Royal Instructions provides for the enrolment in the Supreme 
 Court of every Ordinance passed by the Governor and the 
 Legislative Council. Enrolment is judicial evidence of the 
 fact that an Ordinance has passed. But it is undeniable that of 
 l he Trust Company's Ordinance in 1841 no enrolment has
 
 360 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 
 
 been made. The Judges, therefore, ought to take it that no such 
 Ordinance was passed. " Ah ! no," says some one, " not so ; we see 
 the Cape Town Mail, we search the Colonial office, and we know that 
 the Ordinance of 1841 did pass, and that the enrolment has been 
 emitted through mistake." Suppose the fact to be that it was a 
 mistake, can the Judges, as Judges, tell that ? Are they not bound 
 to take it that the Ordinance was not enrolled because it did not 
 pass? Had the enrolment taken place, much of my reasoning 
 would have been, I admit, inapplicable. I might fairly be told, 
 " Mr. Attorney, you cannot contend that the Judges have no evidence 
 that the Ordinance of 1841 passed the Council and was approved 
 of by the Governor, because, by the enrolment, those facts are 
 placed on record." But seeing that there is no such enrolment, 
 the whole force of the argument is turned the other way ; for 
 not merely are the Judges bound to consider everything done to 
 have been rightly done, because they cannot take judicial notice of 
 any of the evidence that an Ordinance passed in 1841, but because 
 the evidence of that fact, by law provided, is wholly wanting. 
 Sir, I may deceive myself, but these observations appear to me to 
 bear strongly upon the point at issue. That point, let the 
 Council keep in mind, is this, namely, whether the Judges can 
 properly know that the Ordinance now upon the table is the same 
 with an Ordinance once refused by the Queen. I have argued that 
 a constructive disallowance is not equivalent to a refusal ; and if 
 so, the whole point is at an end. I have argued that, even if the 
 constructive disallowance were exactly equivalent to a refusal, the 
 Judges cannot properly know that there has been even a constructive 
 dissallowance ; and, if so, the whole point is equally at an end. 
 They do not know judicially what takes place in this Council, nor 
 what takes place in the Colonial Office in regard to a bill, and they 
 have no enrolment to rely on in the case now before us. But 1 
 go much farther. I have admitted a good deal already for the sake 
 of argument. I will admit more. I will admit that, under the 
 32nd section, the Ordinance of 1841 had been enrolled as soon 
 as it had passed ; and I will further admit that, under the pro 
 visions of the same section, a certificate of the Queen's refusal had'
 
 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 361 
 
 also been enrolled ; and now, having made all these admissions 
 having give the adversary every advantage of position, and, with 
 sun, and wind, and all against me I once more deny that the 
 Judges could have any legal right to say that the Ordinance on the 
 table is not as good an Ordinance as this Council ever passed- 
 I have admitted not a little that is not the fact. I have admitted 
 that the Judges are to be taken to have judicial notice that the Ordi- 
 nance of 1841 actually passed ; and that the Ordinance so passed 
 was refused by the Queen ; and yet, 1 contend that they would be 
 bound to presume all things to have been properly done, and 
 that it would be going beyond their jurisdiction to declare the very 
 same Ordinance, if afterwards introduced and promulgated by Your 
 Excellency, not to be law. Why? Because it is but fitting and 
 decorous and due to the Governor of the Colony to presume that 
 he would not, without the previous leave which his instructions re- 
 quire, have proposed and assented to the new Ordinance. Her 
 Majesty has in effect, as I have already remarked, said to her 
 epresentative, " When I have once announced my decision, you, my 
 Governor, must not set up your judgment against my judgment." 
 But this, I say, raises a question between the Queen and the Governor, 
 and not a question between the Governor and the Queen's Judges ; 
 and I further say that it would involve anomalies, and lead to pro- 
 ceedings notseemly, if the Judges, in any case in which the Ordinance 
 now on the table came into question in Court, should call for proof 
 from Your Excellency that you had got a previous sanction. It appears 
 to me that for the Judges to say, that the Ordinance, in case a previous 
 sanction were proved, was law ; to say that in case no such previous 
 sanction was proved, it was no law ; and then to call for evidence 
 upon the point, would be wholly indefensible. I deny that it could 
 ever be their duty so to do. I maintain that it wouli degrade the 
 Queen's representative, who should not be presumed to act contrary 
 to his instructions, tocall upon him to give any evidence to the Judges 
 that he has obeyed those instructions ; more especially when there is 
 not a tittle of evidence that he has not obeyed them. Take a case. 
 S uppose the validity of this Ordinance to be questioned in Court. It 
 s said to be no law, as it stands, but admitted that it may be shown to
 
 362 ON PRIVILEGES OF THE COUNCIL THE JUDGES. 
 
 be a good law. What next? Make proclamation in due form, 
 *' Governor of the Colony, come into Court ; show us your leave ; 
 produce the despatch ; put us into the Colonial Office ; let us see all 
 that has been done, and be satisfied that you have not transgressed 
 your instructions." These, I say, are the consequence of the position 
 taken up [Here some observation was made by Mr. Justice Menzies, in 
 an under tone, which did not reach us. After a moment's pause, the speaker 
 proceeded^ Sir, if strangers are permitted to be present, I submit to 
 Your Excellency that they ought not to be permitted to interfere 
 with the freedom of discussion. While in the discharge of my 
 public duty I am offering my sentiments upon this important 
 subject, am I to hear it said by any man, I care not who he is, or 
 what his rank, " That's a lie ? " [Mr. Justice Menzies: " No, no."] 
 Then my ears deceived me, and I am glad to be set right. I cer- 
 tainly was under the impression that I heard the words. I have 
 now, however, no doubt that it was a mistake, and as the word 
 " lie" is withdrawn [Mr. 'Justice Menzies ; " If was not used at a//."] 
 I am happy to have been mistaken. What was used was something 
 very like it. No one is more liable than myself to grow warm in 
 argument, but I conceive that as 1 was only testing by what seemed 
 to me fair reasoning [Mr. Justice Menzies left his seat, and spoke to a 
 gentleman sitting behind the speaker.] From what has just been said 
 behind me I find that the words were, " That I deny." I have no 
 doubt that they were so, and I am truly sorry that they struck my 
 car as different. I spoke from my understanding of the language. 
 Returning to the argument, I would observe that I was submitting 
 to Your Excellency that it would lead to the most unseemly con* 
 sequences if the Governor, in such a case as the present, could be 
 called on by the Court to prove that he had received previous per- 
 mission to introduce the Ordinance. It is denied that such a conse- 
 quence would follow. If not, I know but one way of avoiding it, 
 and that would be by the Judges consenting to take the Governor's 
 certificate that he had received the appointed sanction. Now I 
 assert with much respect, but with some confidence, that this would 
 be to give up the whole ground on which the objection rests. If 
 the Judges say " We don't want the dispatch ; we will take the
 
 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 363 
 
 Governor's certificate as conclusive proof of permission granted ;"" 
 why not take the fact that the Governor has actually proposed and. 
 assented to the Ordinance as amounting to the same thing ? If the 
 Governor obeys his instructions, and must be presumed to do so, a 
 certificate would be useless. If the presumption be the other way, can 
 the Judges allow the certificate of the very party who is suspected of 
 acting wrong conclusively to cover his own acts from further scrutiny ? 
 Would they not be called upon to say, " Governor, you are a man of 
 high personal character, hut, in contemplation of law, you are 
 not to be believed ? you are a man of high talents, but, in con- 
 templation of law, you may misconstrue documents. We must be 
 satisfied that you, who are, by law, presumed to be capable of trans- 
 gressing your instructions, do not fabricate a certificate to cover the 
 transgression, or that the instruments which you construe to be a 
 permission are really and truly such a permission as is neces- 
 sary." But to say that the responsible Governor proposing the 
 Ordinance is not sufficient to prove that it is proposed in conformity 
 with his instructions, at least until the contrary shall be proved, 
 and at the same time to admit the Governor's certificate of 
 his own conformity as conclusive evidence, is not, in my humble 
 judgment, sound or consistent reasoning. Perhaps it will be said 
 that the Governor's certificate would fix the Governor's responsiblity.. 
 Good. It would fix his responsibility. But is not that already 
 fixed, I ask, by his proposing and assenting to the Ordinance ? It 
 does, I confess, appear to me that the more this view of the case 
 is examined the more clearly will it appear that if the Judges are 
 authorized to demand any evidence of the Governor's receipt of 
 the previous permission, they are called upon to insist upon the 
 best evidence ; that the Governor's own certificate is not such 
 evidence ; and that the Judges ought, therefore, to insist on seeing 
 the actual authority 'in order to be assured of its genuineness and 
 sufficiency. Am I pressing the principle for which I am contending, 
 namely, that of due deference on the part of the Judges to 
 what Your Excellency and this Council enact, beyond due limits ? I 
 think not. Do I mean to argue that every law which the Gover- 
 nor and Council pass is to be conclusively deemed by the Judges
 
 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 
 
 to be a good law ? Clearly not. I do not seek to carry deference 
 to that extent. The ijth section of the Royal Instructions, to 
 which I have already adverted, expressly states that all Ordinances 
 contrary to or inconsistent with its provisions shall be null and 
 void. In the face of this declaration, I am not to argue that the 
 question of repugnance can never come legitimately before the 
 Court, which must determine whether or not any given Ordinance is 
 null or not. But here I take an obvious, and, as I conceive, a 
 just distinction. I distinguish between those directions which are 
 given to the Governor touching the circumstances under which he 
 should propose or pass certain Ordinances, in regard to all which 
 the Judges should, in my opinion, without any inquiry, ' presume 
 everything to have been fitly done, and the circumstances under 
 which certain Ordinances, no matter how proposed or passed, are 
 necessarily null and void. An instance of the second kind is fur- 
 nished by the 22nd section in regard to lotteries. It is there 
 declared that any Ordinance for establishing a public lottery shall 
 be null and void. Now I agree that a lottery bill, though brought 
 in by the Governor, passed by this Council, promulgated in the 
 Gazette, and, perhaps, even approved of by the Queen, would be 
 no law. Why ? Because there is a positive declaration avoiding 
 the act ; betcause, therefore, there is no room left for any presump- 
 tion that what is done is rightly done. The raising money by 
 means of a public lottery is decisively declared to bean object 
 which no Ordinance can, under any circumstances, accomplish. 
 But in regard to Your Excellency's conduct relative to the circum- 
 stances under which you are not to propose or assent to any given 
 Ordinance until previous leave, or some other previous formality 
 the case is altogether different. In the one case, the Judges know 
 that Your Excellency has disobeyed your instructions, while 
 in the other case, they do not know this', and, therefore, they 
 are bound not to presume this. The one case relates to an object 
 for which no Ordinance can be passed, but the other only to the 
 circumstances under which the Governor and Council are 
 directed to pass Ordinances for objects not prohibited, and 
 while the former requires the Judges to pronounce the
 
 OX PRIVILEGES OF THE COUNCIL. THE JUDGES. 365 
 
 Ordinance invalid, the latter calls upon them to presume 
 in favour of the measure, and not to require proof of authorization. 
 When the Instructions say that until previous leave you should not 
 propose a particular ordinance, it should be presumed, when you 
 do propose that ordinance, that you have received the previous 
 leave. When the Instructions pronounce positively every lottery 
 null and void, there is, as I before said, no room for presuming 
 anything, and the Ordinance falls dead. With Your Excellency's 
 permission I shall try and test these principles a little, and for that 
 purpose shall refer to some other provisions of the Royal In- 
 structions. By the nth section of the Royal Instructions, Your 
 Excellency is authorized and required to preside in this Council 
 except when you may be prevented by some " insuperable im- 
 pediment." Suppose an Ordinance to be passed and promulgated 
 while the Secretary to Government, as next senior member, was 
 presiding, is it to be said that the Judges cannot tell whether this 
 law has been duly passed or not, until they know that there was 
 really an insuperable impediment which kept Your Excellency 
 away? In the same manner in which it is argued that the Judges 
 must be satisfied of conformity with the Instructions in the case of 
 previous leave obtained to introduce, afresh, an Ordinance once 
 refused, so it may just as well be argued that the Judges must be 
 satisfied of conformity with the Instructions in the case in which a 
 bill is passed in Your Excellency's absence. And how shall they 
 be legally satisfied ? By the Governor's certificate that there was 
 an insuperable impediment ? Surely not. This were to commit 
 to the party whose acts the Judges are to watch, the power of 
 protecting himself effectually. If the Judges are to enter upon such 
 points at all, I maintain that they should do so thoroughly ; that 
 when Your Excellency does not attend, and Ordinances are passed in 
 your absence, they should know whether it was business, or illness, 01 
 amusement, and of what sort, which detained you ; in short, that they 
 should know whether the impediment were truly insuperable or not ; 
 and in case they found the impediment not, in their opinion, insuper- 
 able, that they should then pronounce the Ordinance bad, as having 
 got its being contrary to the provisions of the Royal Instructions.
 
 366 ON PRIVILEGES OF THE COUNCIL. THE JUDGES. 
 
 Does this matter of insuperable impediment at all resemble the 
 lottery clause to which I before referred ? No, not in the least. 
 The one is only a rule for the conduct of the Governor, but the 
 other is an inflexible restriction upon the extent of the legislative 
 authority. Look again, Sir, at the I 5th section. It declares that 
 " The Legislative Council shall not ever proceed to business until 
 the minutes of the last preceding meeting are read and confirmed.' 
 This is a wise and proper prohibition. But should the Judges 
 call for proof, that, in this case, the Royal Instructions have been 
 complied with ; or should they not presume that everything has 
 been rightly done until the contrary be proved. Nay, suppose the 
 minutes to have been in fact not read, and an Ordinance passed, ought 
 the Judges to receive any evidence from any quarter to stultify, 
 upon such a point, the proceedings of the Legislature ? As at 
 present advised, I say that, had I the honour to be a Judge, 1 would 
 not receive such evidence. Now I say that it is as clear as any 
 demonstration in Euclid the very same objection of non-conformity 
 with the Royal Instructions exists when the rule not to pass 
 any Ordinance until the minutes have been read has been 
 neglected, as when the rule not to pass without leave any Ordi- 
 nances which have once been refused has been neglected. Again, 
 Sir, the 34-th section of the Royal Instructions provides, amongst 
 other matter of a similar nature, that subjects having no proper 
 relation to each other shall not be put into the same Ordinance. 
 Is it to be argued that the Judges could constitutionally say of any 
 Ordinance passed and promulgated that it comprised subjects not 
 properly related ; that it was, therefore, contrary to the Royal 
 Instructions, and that it was consequently void by the 1 7th 
 section of those Instructions ? Is not, I ask, this matter a matter 
 between this Council and the Queen, a matter of which it was 
 never meant that the Judges were to assume the determi- 
 nation ? But more than this. By the I9th section of the 
 Royal Instructions, Your Excellency is enjoined not to pro- 
 pose or assent to any Ordinance " whereby the Queen's re- 
 venue might be lessened or impaired without the Queen's pre- 
 vious sanction obtained." Look now, Sir, to the late Port Ordi-
 
 OM PRIVILEGES OF THE COUNCIL. THE JUDGES. 367 
 
 nance, [t proposed to lesssen Her Majesty's revenue, and it was 
 passed, and it went to the Judges, and it returned with the com- 
 mon letter reporting no impediment, and no further note or com- 
 ment. Now, when the question is about the rendering to the 
 Judges proof of previous sanction, I ask how, by common sense or 
 common l"gic, a distinction is to be drawn between the case of 
 Ordinances lessening revenue and the case of Ordinances once 
 refused ? Both sections deal equally with certain matter (the 
 revenue matter being far the more important of these) which the 
 Governor should not do without previous leave obtained ; and now 
 I ask again for a distinction between this Ordinance and the Port 
 Ordinance. The Porx Ordinance, however, was distinguished by 
 the Judges, inasmuch as they did not then report specially, as they 
 have done now. Do I argue that they were wrong in the case of 
 the Port Bill ? Sir, I argue the reverse. The Judges then 
 said, "We cannot catechise the Governor on such a point ; 
 we treat his office with deference, and presume that what 
 he does he has authority to do ; if he has not he is responsible 
 to his Royal Mistress for his acts. But this matter of previous 
 leave is a matter between him and the Queen, and not a matter 
 between him and us." This I understand. But I do not under- 
 stand how it can be reconciled with what seems to be the principle 
 of the difficulty which I have been considering. What was 
 presumed in the one case might just as well be presumed in the 
 other, and I defy human ingenuity to show that if they were right 
 then they are not wrong now. Sir, I have thus submitted to you 
 and to this Council my reasons for contending that the three years* 
 lapse is not a refusal within the true intent and meaning of the 
 Royal Instructions ; that even if it were, the Judges cannot 
 judicially take cognizance of the facts necessary to show the three 
 years' lapse ; and that, supposing these points to be otherwise, the 
 previous permission to introduce this Ordinance should be presumed 
 by the Judges, who could not without impropriety demand any 
 sort of proof or such a fact. I am, for the reasons stated, clearly 
 of opinion that no person founding upon this Ordinance when duly 
 promulgated ought to be called upon to prove that the Queen's 
 permission had been given. What the opinions of the Judges may
 
 368 ON THE REGISTRY OF DEEDS. 
 
 be, I do not, as I have already said, affect to know. All that the 
 Judges have done in their collective capacity is to declare that this 
 is a question open to argument. Some of the Judges may possibly 
 have made up their minds in one way, and some, it may be, in 
 another. Be that as it may, I can sincerely state that 1 should 
 feel happy to argue the question before them ; and being certain 
 that 1 should, at all events, be heard with that patient and candid 
 attention which is invariably extended to me, I think I should 
 succeed. I might then, perhaps, state with clearness what I have 
 now, in all probability, left obscure, and show that 1 am not 
 pressing too far the privileges of the Governor of this Colony or of 
 this Council. And, in concluding these ob servaticns, the only 
 thing that I regret is that I should have so lamentably mistaken a 
 casual expression which fell from the learned Judge now present 
 which as I caught it naturally provoked remark, and apologizing 
 to Your Excellency and the Council for the length at which I 
 have trespassed upon your time, I have but to express my hope that 
 the nature of the subject will be held to furnish some excuse. 
 
 ON THE REGISTRY OF DEEDS. 
 
 [Legislative Council, August 26, 1844.] 
 
 In moving the second reading of the Bill for the better regulation 
 of the Office of the Registrar of Deeds, . 
 
 The ATTORNEY-GENER'AL said : The principal object of this 
 Ordinance was to prevent the charge connected with the Deeds 
 Registry Office from being a burden on the public treasury. From 
 the earliest establishment of the Colony the system of transfer of 
 landed property, as derived from the former mother country, Hol- 
 land, had differed from the mode adopted in the present mother 
 country, England. For the purpose of transferring the dominium 
 or right of property in land, it was required that it should be passed 
 formerly before a Commission of the Court of Justice, and now be- 
 fore the Registrar of Deeds. It appeared that, owing to the great
 
 ON THE REGISTRY OF DEEDS. 
 
 increase of business, the tariff did not remunerate the Government ; 
 and as it was obvious that whatever considerations, might call for 
 such a measure as the establishment of a Deeds Registry Office, it 
 ought not to entail any outlay or expense on the part of the Govern- 
 ment. This Ordinance proposed to introduce a new tariff in order to 
 prevent Government from being out of pocket. Another object 
 was to relieve the officers of this department from the duty of 
 preparing transfer deeds by throwing open the right to duly qualified 
 persons. As the Ordinance originally stood, there was a provision 
 that after the 3Oth June, 1840, it should cease to be legal for the 
 Registrar of Deeds to prepare any deeds whatever. From a good 
 deal of conversation out of doors, he was under the impression that 
 the public generally did not approve of that peremptory prohibition, 
 but were rather of opinion that it should be still competent for 
 persons requiring such deeds to pay the advanced tariff at the 
 Government office or repair to other parties and make a private 
 agreement with regard to the price of the work to be done. He 
 was a convert to the opinion that it was unadvisable to fix a period 
 beyond which the Registrar of Deeds should not prepare a deed. If 
 the measure had the effect of rendering it more beneficial to 
 employ private persons for drawing these deeds, then there was no 
 occasion for a prohibition to employ the Registrar, as it wou!3 
 amount practically to such a prohibition. But if from considerations 
 of expediency, or for the sake of obtaining greater certainty, persons 
 perhaps coming from a distance should prefer going to the Registrar 
 of Deeds, it appeared unnecessary to forbid that officer from giving 
 them the desired facilities. There was another point in the first 
 section of the draft that required to be amended. As it stood it 
 took for granted that every advocate, attorney, and notary public 
 would be qualified to perform this duty. There was, however 
 reason to doubt whether among the notaries there were not some 
 persons whose incompetency would spoil an accurate system of 
 registration, or give more trouble to the Registrar of Deeds to 
 correct and refuse their bungling work than would suffice to make 
 out the deeds in the first instance. He would therefore prcpose 
 that the right should not be thrown open with regard to attorneys 
 
 BB
 
 370 
 
 ON THE REGISTRY OF DEEDS. 
 
 and notaries generally without undergoing examination. As it 
 would be absurd and derogatory to the profession to establish a 
 board of advocates to examine advocates in such a matter, he would 
 propose that every advocate should be authorized to prepare these 
 deeds, but that all other persons should lake out a separate authority 
 or license, which should be published in the Gazette. The person 
 desirous of obtaining the license applies to Your Excellency and is 
 referred to the ATTORNEY-GENERAL, who, taking two advocates to 
 assist him, examines the applicant. In the case of notaries, by a rule 
 which had been departed from perhaps from forgetfulness, the 
 examiners are entitled to jCi each for their trouble, and 3 for the 
 license would cover that expense. But if it is thought that ,10 
 would be the proper sum t have no objection. 
 
 Mr. CLOETE : I would now beg to ask the Attorney-General what 
 is the precise meaning of the charge for examining the books of the 
 Registrar, which is stated in the bill as one and sixpence for " each 
 
 letter?" 
 
 ATTORNEY-GENERAL : When we were in Committe on the Insolvent 
 Law it. was strongly represented by my hon. friend opposite (Mr. 
 Ross), that however apparently available were the means of getting 
 information from the Deed's Office, there were practical difficulties 
 in the way. For example, a party goes to the store of my hon. friend 
 and orders a large quantity of goods, and my hon. friend, not feeling 
 quite sure in the matter, is desirous to ascertain whether there are 
 no preferent claims on the estate of the purchaser before he gives 
 him his property. Now there was an impression that the Deed's 
 Office was so populous and much frequented that it was hardly 
 possible for Mr. Rosstogo in and ask, how are Mr. So-and-so's debts? 
 without Mr. So-and-so hearing of the kind curiosity which had been 
 shown with regard to his affairs, and of course if he were a solvent 
 man he would not darken the doors of Mr. Ross's stores again. To 
 obviate this inconvenience there will be a perfect alphabetical regis- 
 ter formed which will show the folio of every debtor's account. This 
 book will be open to public inspection, and any person paying the fee 
 may call for the volume containing a certain name without its being 
 possible for any one to know the particular object of his inquiry,
 
 BILL FOR FIXING THE PRECEDENCE OF LIEUT.-GOVERNOR, ETC. 3JI 
 
 especially if he turn over three or four other folios before the one 
 that he is in search of, so that if he have common prudence he 
 may come away with his information, if he pleases, perfectly and 
 completely his own. By this means it is conceived that it will be 
 in the power of any trader in Cape Town to make himself acquainted 
 with the state of the debt registry, and thus we shall get rid of 
 the complaints so often heard with respect to preferent bonds, a 
 system which must exist in some shape in every commercial country, 
 and mercantile men will be relieved from the necessity of con- 
 tinually blaming, not the principle of law, but their own neg- 
 ligence. 
 
 BILL FOR FIXING THE PRECEDENCE OF 
 THE LIEUTENANT-GOVERNOR OF THE 
 EASTERN DISTRICTS. 
 
 [Legislative Council, September n, 1844.] 
 
 The ATTORNEY-GENERAL, in moving the second reading of the 
 bill, observed that it had been introduced by the direction of Her 
 Majesty's Government for the purpose of securing to the Lieu- 
 tenant-Governor of the Eastern Districts that degree of precedence 
 to which he was deemed to be entitled. It would be recollected 
 that, in his despatch of the 4th of January, 1844, Lord Stanley, 
 after explaining the reasons which had induced Her Majesty's Go- 
 vernment to place the administration of Justice under the control 
 of the Colonial Legislature, had used these words : " I have not any 
 immediate suggestion to make for the amendment of the existing 
 Charter of Justice, except in one respect. I think it will be right 
 that a law should be introduced securing to the Lieutenant-Govcr- 
 nor of the Eastern Districts, within the limits of his command, 
 the same precedence over the Judges, and all persons there, as 
 would belong to a Lieutenant-Governor in the actual administration 
 of the Government during the Governor's absence from the Colony 
 
 BB 2
 
 372 BILL FOR FIXING THE PRECEDENCE OF LIEUT.-GOVERNOR, ETC. 
 
 itself." To do what Lord Stanley thus directed was the object 
 of the present bill. He (the Attorney-General) had heard that 
 some persons considered an Ordinance to settle rank to be "much 
 ado about nothing." Lord Stanley, however, did not think so. It 
 had been stated to him (the Attorney-General) privately, that no 
 such thing as legislation upon such a point had been ever heard of 
 in the Mother Country. This was not so. Most degrees of pre- 
 cedence in England were regulated by statute. In Blackstone's 
 Commentaries, vol. I, p. 404, which he held in his hand, a table 
 of precedence was given, and it would be seen that a good deal of 
 that table was regulated by 3 1st Henry VIII., chap. 10, and ist. 
 W. & M., chap. 2 1 ; other parts resting on letters patent and ancient 
 usage. No doubt the Crown could effect the object by its prerogative, 
 and so said Mr. Justice Coleridge in his note to Blackstone's text, 
 but the intention was to relieve the Crown of an invidious duty. 
 Besides the Acts referred to by Blackstone, there were the 5th Anne,, 
 chap. 8, the Act of Union with Scotland, and 4Oth Geo. III., chap 67 
 the Act of Union with Ireland ; and both these Acts provided for 
 the precedence of the Scotch and Irish Peers respectively. There- 
 fore there was no inherent absurdity in settling rank by law ; and 
 this was done, in regard to the Judges, by the 7th and 8th articles 
 of the Charter of Justice. Rank given by a statute could only be 
 affected by an instrument of equal force, and hence the propriety 
 of the present law. The present law was the mode in which Her 
 Majesty was pleased to give a rank to the Lieutenarit-Governor, 
 and of the propriety of his having that rank assigned there was, he 
 believed, no doubt. He (the Attorney- General) had entertained some 
 doubt as to whether the present bill should not have adverted to the 
 Charter of Justice, so as to repeal any of its provisions which should 
 be repugnant to or inconsistent with the present Ordinance ; and 
 he did not even yet quite perceive that that would not have been 
 the best course. He was anxious, however, not to allude in any 
 way to the previous controversy about precedence ; and therefore 
 was well content to pass the bill as it stood ; when, if any im- 
 pediment were reported by the Judges, arising from the omission, 
 the matter might be corrected.
 
 1 S 4 5. 
 
 ON THE TACIT HYPOTHECS OF GOVERN- 
 MENT. 
 
 [Legislating Council, January i6tb, 1845.] 
 
 In moving the second reading of the Tacit Hypothecations 
 Bill, 
 
 The ATTORNEY-GENERAL said : I am glad to be able to avoid 
 troubling Your Excellency and the Council at any length upon so 
 dry a subject as the present. The history of the measure is shortly 
 this. On my motion, now some years ago, a Committee of this 
 Council was appointed for the purpose of reporting upon the law 
 regarding tacit hypothecations, regarding general mortgages, and 
 regarding the Insolvent Ordinance. After many sittings and much 
 consideration, that Committee agreed upon a report, which was 
 published, and which embraced the three several objects of inquiry. 
 The Report of Committee respecting the Insolvent Ordinance has 
 been acted upon, and the result is the present Insolvent Law. 
 With regard to general mortgages few changes were recommended, 
 and those were rather of an executive than a legislative nature. 
 The system of tacit hypothecations still remains to be considered 
 and the Ordinance now before the Council proposes to amend it. 
 I need not enter into the nature of the colonial hypothecation. It 
 is sufficient to say that it is, in substance, the English mortgage, 
 and that the tacit hypothec is a lien or liability arising by mere 
 operation of law as contra-distinguished from the conventional hy- 
 pothec, which is created by agreement between parties. It mearts 
 that in some cases certain favoured creditors shall, without agreement, 
 have the same rights against the estates of their debtors that re- 
 gistered mortgagees would have enjoyed. The principle of the 
 law is that some sorts of creditors require special protection, and
 
 374 ON THE TACIT HYPOTHECS OF GOVERNMENT. 
 
 they arc protected by being silently clothed, without any visible 
 act, with the character of mortgagees. The commonest case of 
 tacit hypothec is that of minors, who, wisely or otherwise, are 
 deemed by the law of this Colony to be so deserving of protection, 
 that they are considered by that law as being invested with the 
 character of mortgagees upon the property of their guardians> 
 for the security of the balance coming to them upon a settlement 
 of accounts. Other cases in which the same principle was con- 
 ceived to be proper have extended the law of tacit hypothec con- 
 siderably. In the Committee to which I have referred, all these 
 cases were canvassed, and we were of opinion that the law might 
 be amended and the public interest advanced by abolishing 
 entirely some tacit hypothecs which appeared to be unnecessary' 
 and by greatly shortening the time within which the right of 
 hypothec shall be claimable in the case of such hypothecs as we 
 did not see reason to destroy. This Bill is mainly founded upon 
 the report of the Committee, and where it will be found to differ 
 from that report, it will, I hope, be found to differ for the better. 
 Upon a matter on which I formerly entered very fully, and which 
 was so fullydiscussed in the Committee, I shall not detain the Council, 
 believing that, when the Bill is read in Committee, section by section, 
 I shall then be better able to explain its provisions. One ex- 
 planation, however, it will be proper to make, in order to account 
 for an apparent omission. Amongst the recommendations of the 
 Committee was one to the effect that the tacit hypothec of Govern- 
 ment upon the property of the collectors or receivers of its revenues 
 should be abolished as unnecessary. At present, when the accounts 
 of any such officer are deficient, Government has a tacit hypothec 
 for securing the deficiency. I am bound to say that I do not see 
 the necessity of this privilege, and that it would in my opinion 
 be desirable to secure the Government in another way. So far as 
 J know the privilege was never called into exercise in this Colony, 
 except in the case of the late Mr. Stoll, and so far as I have heard 
 of that case I do not consider that Government under the circum- 
 stances was justly and equitably entitled to sweep the estate away 
 from the other creditors. The impression upon my mind is that
 
 ON THE TACIT HYPOTHECS OF GOVERNMENT. 375 
 
 more diligence might have been shown and more searching ex- 
 aminations of the public chest might have been and should have 
 been made; and, if so, it seems hard that the negligent creditor 
 should ultimately prove to be the only creditor paid. I agreed with 
 my brethren in Committee in thinking that Government may re- 
 quire and receive from its administrators ample but at the same 
 time registered securities to cover all such amounts as it can be 
 necessary to entrust to their keeping, and a provision upon the 
 subject in conformity with the report would have been introduced 
 into the present draft, but that Your Excellency is prohibited by 
 your Instructions from proposing or assenting to any Ordinance 
 calculated to prejudice or impair any prerogative of the Crown 
 without consent from England first obtained. That the right in 
 question is a portion of the Royal Prerogative cannot be doubted ; 
 and therefore, though this measure is a private one, and introduced 
 by me merely in my individual capacity as a member of this 
 Council, I did not think it discreet to encumber it with provisions 
 to which Your Excellency could not assent. But I drafted, at the 
 time I drew this Ordinance, a separate Ordinance, embracing the 
 tacit hypothecs of Government, with the view, if the present bill 
 should be carried, to move a resolution to the effect that Your Ex- 
 cellency should be respectfully requested by this Council to forward 
 both Ordinances to the Secretary of State, at the same time, desiring 
 for the one the gracious allowance of the Queen, and for the other 
 Her Majesty's permission to introduce and pass it. The whole 
 matter might, of course, have been comprised in a single bill, in 
 regard to which generally Her Majesty's previous permission 
 might have been solicited. Such a course, however, would not 
 have served to show so clearly to the Secretary of State the principles 
 which this Council was prepared to act upon in reference to the law 
 between party and party, a matter of some consequence in con- 
 sidering how the law should stand in reference to the rights of 
 Government against the property of its servants. Pending the 
 decision of Her Majesty upon the Ordinance to be thus submitted 
 (should His Excellency be requested to submit it and see no ob- 
 jection so to do) the bill now before us need not be promulgated.
 
 ON THE TACIT HYPOTHECS OF GOVERNMENT. 
 
 That question, however, is for Your Excellency and the Council. 
 I have no sort either of interest or wish one way or another, but 
 what I have said will show the Council that I have never thought 
 of skulking from the recommendation made by the Committee of 
 which I was. .chairman, and contained in a report drawn by myself. 
 
 ON THE SAME SUBJECT. 
 
 [Legislative Council, April 7 'th, 1845.] 
 
 TACIT HYPOTHECS OF GOVERNMENT. 
 
 The ATTORNEY-GENERAL said that he had given notice at the 
 last meeting of Council of his intention to move some resolutions 
 to-day relative to certain of the tacit hypothecs of Government. 
 He had been induced to change his purpose, and would not submit 
 the resolutions which he had drawn up. It therefore became 
 necessary for him to state shortly how the matter stood, and 
 how he stood in regard to it. A Committee of Council had been 
 appointed on his motion, now some years ago, which had investi- 
 gated the subject of tacit hjpothecs, together with some other 
 branches of the law. The nature of the tacit hypothec was 
 easily understood. It meant a right of mortgage rising out of the 
 privilege of particular debts created silently by operation of law, 
 and independent of any registration. That such a system was 
 calculated to disturb the fair relations of debtor and creditor, 
 particularly in a pkce where, as in this Colony, conventional mort- 
 gages required legislation, needed no proof. He was himself 
 favourable to a more extensive interference with the system than 
 the public or the Council approved of, but large reforms in regard 
 to the tacit hypothec of private persons were considered by the 
 Committee, and recommended in their report. In Committee, 
 where he (the Attorney-General) was chairman, his hon. and
 
 ON THE TACIT HYPOTHECS OF GOVERNMENT. 377 
 
 'learned friend (Mr. Clocte), who took great interest in the whole 
 inquiry, referred strongly to the tacit hypothecs of Government 
 relative to contractors and accountants ; and called upon him (the 
 Attorney-General) to state whether, circu mstanced as we are, 
 he deemed them defensible, and after having considered the subject 
 maturely, he felt bound to admit to his hon. and learned friend that 
 he could not defend them. He could not see why Government 
 might not, like any other corporation, require such security from 
 contractors of a personal or registered description as would render 
 the tacit hypothec quite needless ; and considering the small 
 amounts which were for the most part in the hands of our public 
 accountants, and the peculiar facilities for taking unobjectionable 
 securities which were afforded by the registration system of this 
 Colony, he deemed the tacit hypothec of Government upon the 
 property of accountants a privilege to be exercised against bond 
 Jide purchasers without notice to be almost equally opposed to prin- 
 ciple. Practice, however, was certainly the other way in ancient 
 Rome, in modern England, in continental Europe, and in the United 
 States of America. But he regarded the principle as a remnant of 
 prerogative times when the revenue belonged to the Government 
 in a different sense from that in which it belonged to it now, and 
 did not believe that, were the question novel, it could for one 
 moment be admitted. The Government had in its own hands 
 the best means of checking its accountants, and if it were admitted 
 that now and then defaulters would be found, he was of opinion 
 that the public, which was a sort of great joint stock company, 
 could better bear a loss than miserable individuals who must be 
 ruined by the Crown's preference. It would be invidious to men- 
 tion particular cases. But it was well known that in the only 
 two or three cases in which the hypothec had been resorted to 
 very great hardship had followed upon its exercise. It was his con- 
 viction that the principle of preferences bestowed by mere act of 
 law on particular debts was not a sound one ; and he saw no 
 reason for giving to the State, that is, the richest creditor, a right 
 which he would not give even to the minor if he could help it. 
 The resolutions which he had framed affirmed the inexpediency
 
 ON THE TACIT HYPOTHECS OF GOVERNMENT. 
 
 of the hypothecs in question. But he had reason to think that 
 from their nature difficulties were felt which would prevent them 
 from being unanimously carried. Under these circumstances he 
 would not propose them, but would beg His Excellency the Go- 
 vernor to allow him to submit a memorandum for transmission to 
 the Secretary of State, in which he would state his views upon the 
 subject. This memorandum His Excellency was good enough to- 
 say he would forward together with the Ordinance recently passed 
 for the regulation of the tacit hypothecs of private persons. 
 Should the Secretary of State see any cause to advise the Queen to 
 allow the Ordinance which had been passed, and moreover, to 
 authorize His Excellency to assent to such a one as should pursue 
 the tenor of the draft which would accompany the memorandum, 
 well and good. Should his Lordship see difficulties in the way of ex- 
 cepting this Colony from thegeneral principle, and greater difficulties 
 in the way of a general alteration, the Council would act accordingly. 
 His own sense of the consistency, however, required him to announce 
 that, in the event of Her Majesty's Government being unable to 
 approve of such a change as that recommended by the Committee in 
 regard to the tacit hypothecs of Government, he (the Attorney - 
 General) who had always considered the report of the Committee 
 as involving virtually one measure, though divided into two, in 
 deference to that clause of the Royal Instructions which prohibited 
 legislation upon prerogatives without previous sanction, would be 
 prepared to move a resolution in Council requesting His Excellency 
 the Governor to negative the late Ordinance. It was quite true 
 that the two measures might be viewed as perfectly distinct, and 
 it might be wise of the Council to view them in that light. But 
 circumstanced as he was with regard' to the subject, he must keep 
 clear of the imputation of having smuggled through one bill upon 
 the understanding that another was to follow, which other never 
 came ; and he should therefore afford the Council an opportunity of 
 pronouncing upon the question, whether private hypothecs should 
 remain unchanged in case the hypothec of Government should 
 be preserved upon the property of contractors and accountants.
 
 ON THE STAMP BILL. 
 
 [Legislative Council, January 27th, 1845.] 
 
 The ATTORNEY-GENERAL said it might now be taken for granted 
 that the debate was not to be adjourned, and that anything which 
 any member might have to state must now be stated. At so late 
 an hour, and in an atmosphere which had probably suggested India 
 to his hon. friend opposite, he would not protract longer than a 
 few minutes the sitting of the Council. And first as to the charge 
 of this measure having been unconstitutionally introduced, made 
 by Mr. Ebden, and defended by Mr. Cloete, it was curious that 
 they grounded that charge on totally different principles Mr. Ebden 
 alleging that it was unconstitutional to introduce that bill without 
 first consulting this Council, and Mr. Cloete maintaining that it 
 was unconstitutional to introduce it without the previous authority 
 of the Queen. The positions were inconsistent, and neither of 
 them sustainable, since the course of Government was in accordance 
 with the constitution and forms of this Council. The hon. and 
 learned gentlemen proceeded to say, that in most countries where 
 transfer duties were levied they were classed under the same head 
 with stamps. It was so in France and Holland. Considering what 
 would be the case if our transfer and our stamp duties were to be 
 provided for in one tariff, he was of opinion that the transfer duties 
 were disproportionately heavy. If we were now first providing a 
 revenue from those joint sources, would any one deny that 4 per 
 cent, on transfers was oppressive to one class whilst so little was laid 
 upon another ? Circumstances had changed greatly within the last 
 few years, and were we now to continue a taxation which should 
 be equal according to the proportions settled by Lord Charles 
 Somerset, when the state of the Colony did not allow of that ex- 
 tension of the principle of stamps, which, at the present day was 
 both practicable and just. If the old tariff had been the same as 
 the proposed one, and transfer duty 2 per cent., what would be
 
 380 ON THE STAMP BILL. 
 
 thought ofa measure for cutting down stamps to Lord Charles 
 Somerset's tariff in order to increase the transfer duty to 4 per 
 cent ? The hon. and learned gentleman, after contending for the 
 justice of equalizing the pressure, proceeded to observe upon mis- 
 statements out of door?. There was a hubbub about insurances. 
 It was said marine risks were to be taxed higher than m England, 
 but this was not so. In England they laid on the duty in pro- 
 portion to the premium, and that showed, in some cases, a small 
 duty. But no premiums in this Colony were under 305. per cent. 
 and most risks considerably higher, and no insurance could be 
 made in this Colony which would not, if made in England, pay 150 
 per cent, more than it would pay here. Then as to fire policies. 
 There was McCullock's Commercial Dictionary, open at the titles, 
 and it would be seen that in the form given of a fire policy 
 there was marked margin, " Premium i IDS., Duty $ ; " that 
 is, the duty was 200 percent, upon the premium paid. But i c 
 was cried out again that here was to be a stamp on the annual 
 receipt for premium. True. But everyone knew that in England 
 that duty on a fire policy was paid annually, and the conclusion 
 from this was obvious. He would not, however, be seduced into 
 lengthened details, and he would merely state his views respecting 
 the principle of stamps. He was no admirer of any tax that could 
 equitably be avoided ; but he denied that stamps were in principle 
 a bad tax. A vast deal had been talked and written about op- 
 pression, and vexation, and many other things besides. Had the 
 authority of any one good writer been adduced to show that 
 stamps were in principle an objectionable impost ? His hon. friend, 
 Mr. Ebden, pointed to McCullock, but he would find no such 
 dictum in McCullock, although in the article on Marine Insurance 
 contributed by another hand the duty on that particular thing was 
 deprecated. In a late work, however, by McCullock his statistics 
 of the British Empire it would be found that he pronounced 
 stamps, when imposed in moderation, to be a judicious mode of 
 raising revenue. The origin of stamps had been quoted against 
 them ; but, very unhappily, Holland had offered a reward for the 
 discovery of the best tax, and stamps had obtained it. England,
 
 ON THE JUDICIAL ESTABLISHMENTS COMMITTEE. 381 
 
 it was argued, was giving them up. He denied it. Stamps yielded 
 a sixth of her whole revenue. Senseless seditionists had compared 
 this Stamp Act to that of America, a measure for equalizing the 
 pressure of taxation amongst the colonists themselves, to a mea 
 sure for raising in the Colony a revenue for remittance to the 
 mother country ! But still, when about to coax America to contri- 
 bute to the British treasury, the Biitish Minister began with a 
 Stamp Act as the most popular and least objectionable measure to 
 which he could resort, a plain proof that stamps were not in his 
 opinion in their nature intolerably oppressive. Some said they 
 would prefer an income tax to stamps. Ireland was Sir Robert 
 Peel's difficulty, and rather than carry his income tax into that 
 country he largely increased their stamp tariff, proving that he 
 deemed a Stamp Act less severe than an income tax ; and also that 
 it was in his view the most expedient tax which he could substitute.. 
 
 ON THE JUDICIAL ESTABLISHMENTS 
 COMMITTEE. 
 
 Legislative Council, April jtb, 1845.] 
 
 ATTORNEY-GENERAL : There are two distinct considerations to> 
 be attended to one the economical, having reference to retrench- 
 ment ; and the other the political, having reference to efficiency. 
 These considerations, instead of naturally coinciding, have a ten- 
 dency the other way, for, in general, the more economical your 
 system is, the less efficient it will prove ; and upon the other hand 
 the more efficient your system is, the more expensive it is likely 
 to be found. In reference to expense may we not consider that 
 the chief items are ascertained in the information now before us ? 
 We know what the Supreme Court costs, and have all the salaries- 
 in black and white from that of the Chief Justice on the bench to 
 than of the tipstaff in the box. And coming to the Circuit Courts
 
 382 ON THE JUDICIAL ESTABLISHMENTS COMMITTEE. 
 
 we know pretty accurately what each half yearly circuit costs. 
 With this knowledge we are enabled to perceive that if you can 
 safely and properly get rid of circuits you will thereby get rid of some 
 j3,coo a year. This would be a considerable saving. But you 
 can't abolish circuits without providing a substitute, and you must 
 calculate what the cost of that substitute will be. Do we want 
 two circuits per annum ? If not, do we want one ? No one can an- 
 swer these questions till he knows in what manner it is proposed 
 that the business now done in the Circuit Courts is still to be done 
 when Circuit Courts have ceased. We are led then to sec that if 
 Circuit Courts are to be abolished they must be replaced by some 
 inferior courts ; and then the question will come round to be whether, 
 after having examined the returns which show the number and 
 the nature of the sentences now pronounced by circuit courts, and 
 after having considered the extent of criminal jurisdiction which 
 might be entrusted to local courts, you can come to the conclusion 
 that it would be cheaper in regard to very serious cases to bring 
 the criminals to the stationary Judge, or to send the Circuit Judge 
 to the criminals. Begin then at the beginning, and see how much 
 you can properly increase the jurisdiction of the Courts of the Re- 
 sident Magistrates. Try next whether you can bring together any 
 and what number of Resident Magistrates at various places once a 
 quarter or so ; and, if you can, determine what higher jurisdiction 
 such a bench might be entrusted with ; and then have what amount 
 of cases would probably remain to be brought to the Judges, for 
 the purpose of estimating the comparative cheapness of carrying the 
 criminal to the Judge, or the Judge to the criminal. I throw out 
 these hints in order that we may break ground and get to business, 
 for it appears to me that if we do not proceed in some such way as 
 I have indicated we may sit here looking at each other till dooms- 
 day. 
 
 SECRETARY TO GOVERNMENT : I think there is another question 
 to be considered of still greater importance than the expense ; I 
 mean efficiency in the administration of justice as tending to im- 
 prove or prevent the deterioration of the morals of the people. 
 From all I have seen and heard I am led to apprehend that the
 
 OX THE JUDICIAL ESTABLISHMENTS COMMITTEE. 383 
 
 means of obtaining justice are generally so remote that the in- 
 habitants, especially of the country districts, are sometimes led to 
 overlook or even to compound crimes which, for the good of society, 
 ought not to be tolerated. Such persons will not go to the ex- 
 pense and loss of time which are at present necessary for bringing 
 offenders to punishment, and there can be no doubt that the effect 
 is very injurious to the minds of the people, because it gradually 
 brings them to look upon crime with indifference. I think this is 
 one feature of the present system which we should endeavour to 
 -change, and the question whether this may be most effectually ac- 
 complished by having more circuit courts, or by quarter sessions, or 
 district sessions, or in any other mode that may be suggested, is of 
 far greater importance than any mere question of economy. I 
 would not mind seeing double the expense incurred if this object 
 could be effected ; but my impression is that the money now 
 granted is not well spent that you do not get an equivalent for it. 
 
 Mr. EBDEN : There appear to be only two modes to be pursued 
 either the Judges must visit these places, or there must be magis- 
 terial authorities on the spot accessible to parties who may feel 
 themselves aggrieved. Looking at the minute I should say the first 
 question is : Is it expedient or not to increase the number of magis- 
 trates ? 
 
 ATTORNEY-GENERAL : That is too abstract a way of putting it. 
 There is, probably, no country on the face of the earth in which it 
 would not be in one point of view expedient to increase the 
 number of magistrates. The plentier the magistrates arc the less 
 the difficulty or inconvenience of protecting life and property. But 
 we cannot afford to multiply magistrates indefinitely ; and the 
 number to be given must depend upon the comparison between 
 what would be abstractly advantageous, and what amount of re- 
 venue we can fairly devote. To what degree is such a scattered 
 population as ours necessarily obliged to endure the evils of a remote 
 magistracy ? This is a thing to be decided, and it must be decided 
 by a balancing of principles. If your magistrates are so remote 
 that many persons in their districts would rather lose a horse, or an 
 ox, or a few sheep, than bring the thief to justice seeing that the
 
 384. ON THE JUDICIAL ESTABLISHMENTS COMMITTEE. 
 
 owner would thereby lose more, in time and trouble, than the 
 stolen property was worth there is no doubt that evil consequences 
 will result. One consequence will be the establishment of a system 
 of very summary justice indeed. In practice this system is some- 
 times vindictive and sometimes remunerative. It is vindictive in 
 some such way as this. The sheep is stolen, and the thief taken, 
 tied with a reim, and brought to the baas. "You stole the sheep ?" 
 "Yes." " Well, will you take twenty-five here, or be sent in to the 
 tronk ?" " I'll take the twenty-five here rather than go to the tronk.'' 
 And so he is stretched accordingly, and takes the lashes, and that 
 affair is ended. The remunerative way of arranging these things is 
 by binding the thief to serve as a labourer for one, two, or three 
 years, in proportion to the value of the animal stolen. Now it is. 
 very plain that a near magistrate would prevent such occurrences,, 
 partly because the distance would not furnish so strong a reason 
 for compromising, but principally because the parties concerned, 
 would be afraid that their proceedings would inevitably become 
 known and lead to trouble. I wish to be understood as having 
 decided upon nothing, and as only throwing out suggestions to be 
 weighed. But if it be clear that magistrates ought to be increased, 
 and that they can only be increased by a saving somewhere, the 
 question will be as to the mode in which the necessary saving 
 is to be effected. At present we may fairly assume that, separated 
 as our magistrates generally are, to bring two or three of them 
 periodically together would lead to great inconvenience and 
 expense ; but to increase the number would be to diminish the 
 distance, and so to lessen the difficulties in the way of stated 
 meetings. 
 
 COLLECTOR OF CUSTOMS : It might be considered whether you 
 might not beneficially increase the power of justices of the peace. 
 At present they seem but of little use, having but the power to- 
 commit. 
 
 Mr. HK. CLOETE : I agree that this would be desirable, and' 
 then these justices might assemble in sessions. 
 
 ATTORNEY-GENERAL : There is much difficulty in employing 
 justices of the peace in the way suggested. Their services are
 
 ON THE JUDICIAL ESTABLISHMENT COMMITTEE. 385 
 
 gratuitous, and I have, myself, strong objections to the principle 
 of employing, more than is absolutely necessary, unpaid func- 
 tionaries for services of such a character. It is not in the nature of 
 things that they should feel themselves responsible, and in such 
 cases the slightest interference is resented as an affront. They 
 are not the salaried servants of the public, and are not to be treated 
 as if they were ; and, therefore, when fault is found they plead 
 their unpaid labours, and exclaim, 
 
 " Go, tell your slaves how choleric you are, 
 And make your bondmen tremble !" 
 
 Mr. HK. CLOETE : I consider that, in general, the justices of 
 the peace are just as well qualified for the task as the magistrates. 
 
 ATTORNEY-GENERAL : My fear is that we cannot, generally speak- 
 ing, expect to find sufficient interest taken by those gentlemen. If 
 you say that the sessions shall consist of the resident magistrate and 
 such of the justices of the peace of the district as choose to attend, 
 I apprehend the effect will be that for the ordinary routine busi- 
 ness of the bench you may find a difficulty in collecting members ; 
 while, when certain particular cases are to come on, cases affecting 
 A B or C D, a rush may be anticipated for the purpose of supporting 
 foregone conclusions. It would be well, however, as our chairman 
 suggests, to fix upon some specific points, to be illustrated by 
 evidence, in order that we may be able to set them aside and get on. 
 Just now I should conceive that the system of the clerks of the 
 peace forms a very important subject of inquiry. 
 
 Mr. HENDRICK CLOKTE : Is it intended to have juries in the 
 magistrates' courts ? 
 
 ATTORNEY-GENERAL : The jury system, in my opinion, would 
 not work there at all. The system must rather resemble the old 
 heemraden. There was, I may observe, an able bill before the 
 colonial legislature many years ago, drawn by Mr. Menzies, for 
 increasing the jurisdiction of the single magistrates ; but, in some 
 way or other, the measure dropped. The framer, I think, is of 
 opinion that my predecessor did not like the bill as well as it deserved 
 and that this contributed to its failure. There is a piece of infor- 
 
 cc
 
 386 ON THE JUDICIAL ESTABLISHMENT COMMITTEE. 
 
 mation which it might be useful to obtain T mean a return showing 
 how often each clerk of the peace has left the drostdy town on public 
 business during the last three years, and the business on account of 
 which he travelled. The importance of such information will be 
 readily seen. We already know the number of cases whick the clerks 
 of the peace conduct in court, and assuming that the duties of the 
 clerks of the peace out of court are of a trifling nature, some 
 turther considerations would present themselves. The manner in 
 which, for tie most part, criminal cases come forward in the 
 country parts, is in some such way as this. Cattle are stolen, the 
 spoor traced, and the supposed thief arrested. After report to the 
 field-cornet, the owner, with his herdsman or such other witnesses 
 as are deemed to be necessary, proceed to the seat of magistracy, 
 bringing with them the alleged criminal. On arrival they repair, 
 not to the magistrate, but to the clerk of the peace, to whom they 
 tell their story. He hears it, inquires who saw this, and who can 
 prove that ; and having put his evidence into ship-shape, takes all 
 parties to the magistrate, by whom a preparatory examination is 
 commenced. The management of the inquiry is various, and 
 depends on how the magistrate and the clerk of the peace stand 
 towards each other, and upon which of them happens to be the 
 most competent. In strictness, perhaps, the magistrate should 
 hear the witnesses ; the clerk of the peace should, in the first 
 instance, question them ; and the magistrate's clerk should act as 
 interpreter when necessary, and also record what is said. But 
 there is, I apprehend, no fixed rule in this respect, and sometimes 
 one party and sometimes the other takes virtually the whole duty, 
 according as the clerk of the peace may be stupid and the resident 
 magistrate clever ; or, vice versa, the clerk of the peace clever and 
 the resident magistrate stupid if it may be supposed that either 
 functionary is ever stupid. Now, if it shall appear that the duties 
 of clerks of the peace are confined to rehearsing the evidence to 
 be given at the preparatory examination, and afterwards to conduct- 
 ing ostensibly the examination in court, it would rather seem that 
 clerks of the peace cannot be of indispensable importance. There 
 is nothing here that might not with ease be provided for. If, oa
 
 OX THE JUDICIAL ESTABLISHMENT COMMITTEE. 387 
 
 the contrary, it shall appear that, if clerks of the peace are abolished, 
 some cases will probably be hushed up, and that other cases will 
 break down for want of necessary evidence which there was no 
 competent person to collect : if it shall appear that whenever 
 the " sough " (as the Scotch phrase is) of any crime reaches 
 the drostdy town the clerk of the peace is found (where Sir 
 Charles Napier says all officers in Scinde should be) perpetually in 
 the saddle and prepared to ride off to the proper quarter to inquire 
 and collect evidence, if such is the duty done or the duty which 
 should be done by the clerks of the peace, as the opinion of some 
 eminent persons I know is, then it will be proper to consider 
 whether such clerks of the peace as act in this manner can properly 
 be spared, and whether in regard to the others, we should not, in- 
 stead of knocking off the office, knock off the officers who do not 
 duly perform their proper duties, and place more active persons in 
 their room and stead. My wish, then, is to know from the nature 
 of the duties actually done by the clerks of the peace, whether a 
 less expensive officer, who might be likely to be more active, could or 
 could not be expected to possess the skill and knowledge necessary 
 for collecting and bringing in to the magistrate all necessary evidence, 
 and at the same time no more evidence than is necessary; because, 
 if so, I conceive that the mere examination of the witnesses may 
 be left to the magistrate himself or to his clerk, and that the clerk 
 of the peace may be dispensed with if it be imagined that the 
 examination of the witnesses by the magistrate himself might 
 tend to lead that functionary beyond the bounds of absolute impar- 
 tiality by enlisting some feeling in favour of the prosecution in which 
 he found himself engaged. It has been suggested to me by the Civil 
 Commissioner of the Cape, that the clerk of the civil commissioner 
 might conduct the case in court ; a course which would keep the 
 magistrate clear of all risk of becoming unduly interested, and which 
 would provide a better prosecutor than the magistrate's clerk, who 
 could scarcely ask questions, and at the same time preserve an accu- 
 rate and unsuspected record. This is matter of detail, and may 
 hereafter be considered. The main question is as to the extent to 
 which clerks of the peace, in general, assist the administration of 
 
 cc 2
 
 388 ON POETRY. 
 
 justice. In Cape Town and Graham's Town such officers may be 
 more required than in less populous places, and these towns may 
 merit a separate consideration. But, in regard to the colony generally, 
 the matter to be determined is whether the present clerks of the 
 peace might not serve the public more effectually, if, instead of swelL 
 ing the establishment at each magistrate's station, they were them- 
 selves stationed as resident magistrates elsewhere. 
 
 ON POETRY. ANNUAL ADDRESS AT THE 
 S.A. PUBLIC LIBRARY, APRIL 30. 
 
 [Cape Town Mail, May ^rd t 1845.] 
 
 The Hon. W. PORTER was called to the chair, and delivered the 
 following address : 
 
 LADIES AND GENTLEMEN, At the call of the Committee I have 
 consented to take the chair to-day, f am assured that those who 
 have done me the honour to prefer the request were too well aware 
 of the other engagements which demand my attention just now to 
 have required my services if circumstances, at this moment, had not 
 limited very much their power of choice ; and when led to think 
 that my compliance with their desire might remove a difficulty, to 
 have refused would have been either affectation or something worse 
 For this reason I did not feel at liberty to refuse. Were nothing^ 
 expected from your chairman but to express his sense of the com- 
 pliment conferred upon him, to announce his intention to be 
 perfectly impartial and give every speaker a fair hearing, to claim 
 t he indulgence of the meeting, and call for its support ; and then, 
 having declared his readiness to hear what any gentlemen may have 
 to offer, to sit down and rest in peace, the duties would not be 
 very arduous, nor would the preparation for discharging them 
 demand any very great expenditure of time and labour. But lean- 
 not forget that more than this is expected. The mere business of
 
 ON POETRY. 
 
 this annual meeting is, in general, a bagatelle. Our treasurer is 
 reputed honest, and lest he should be a cheat, our auditors watch 
 him. The accounts, the complimentary resolutions, the list of books 
 all carry with them the character of routine. Every one feels 
 that, in such matters, however necessary, there is no real interest 
 whatever. Still, our annual meetings have not been without interest- 
 That interest has been secured by doing something more than trans- 
 acting our mere business. It has been deemed not out of place to 
 address to the friends and supporters of a literary institution, as they 
 were from time to time assembled, such remarks upon literature in 
 general, or some particular branch of it, as the chairman for the time 
 beingmight feel prompted to throw out. The results have, heretofore, 
 been happy. Upon the occasion of our two last anniversaries the most 
 comprehensive intellect perhaps in our community illustrated the 
 contrasted spirit of Ancient and of Modern Literature with a splen- 
 dour and effect to be anticipated from every exhibition of a mind 
 in which round any one branch of human knowledge the richest 
 particles of all other knowledge seem electrically to collect and 
 crystallize. I propose to day to adhere to the plan of attempting 
 something in the way of a literary discussion or discourse. In a 
 matter which I have little leisure to mature, and which is very far 
 removed from the sphere of my ordinary pursuits, I shall probably 
 not succeed. But I deem the plan itself so good a one that rather 
 than give it up I am content to fail. In looking lately over the 
 advertising columns of the Times, I saw the announcement of 
 " Imagination and Fancy" a selection of poetic passages from various 
 authors made by Mr. Leigh Hunt, to which, the paper stated, was 
 prefixed an essay by the compiler in answer to the question : " What 
 is poetry ?" It struck me that the question thus proposed was one 
 not unworthy to be thought about, and when I found myself neces- 
 sitated to appear on this occasion in this place, I determined to 
 think about it at once and lay my thoughts before you as the subject- 
 matter of this address. And as the nature of the subject seems to 
 require more precision of thought and language than I could hope 
 to command extemporaneously, I have put my views in writing, 
 and in what more I have to say shall avail myself of the paper
 
 39 ON POETRY. 
 
 which I hold in my hand. What is poetry ? Is it a simple idea ; 
 and, as such, incapable of definition ? If it admits of analysis, of 
 what elements is it composed ? What has it in regard to its senti- 
 ments, in common with Eloquence ? and in regard to its sound, 
 in common with Music ? and what, nevertheless, are the essential 
 differences in character between the three sweet sisters ? Has poetry 
 a Logic, as Samuel Taylor Coleridge somewhere has been pleased 
 to say it has ? Or does the answer to the question : " What is poetry ?' 
 depend, after all, upon the fashion of the day and the Quarterly 
 Reviewers ? These are, all of them, questions more easily asked than 
 answered ; and are questions which I do not hope satisfactorily to 
 resolve. I trust, nevertheless, to be able to make the discussion of 
 some of them, however imperfect, not altogether uninteresting. 
 Let me first state, that, for my own part, I cannot consider such a 
 discussion frivolous. It is true that what is called the spirit of 
 the age is wholly unpoetic. It is true that the physical sciences 
 attract in a great degree the general attention, and that 
 the public taste seems to gravitate almost exclusively towards 
 matter. It is true that while rhymers never were more plenty, 
 poets never were so scarce. Lookup into the literary sky, and 
 you see but one great orb of song Wordsworth ; and when that 
 luminary sets all will be dark. But still poetry has been, and 
 must ever be, " a great fact." It is the noblest, the oldest, the 
 most universal, and the most enduring of what in very feeble 
 phrase we term the Fine Arts. The sculptor fashions a graven 
 image, but all it shows is form. The right hand of the painter, 
 with all its cunning, can exhibit only form and colour. It is the 
 poet's province to produce impressions deeper than any to be 
 stamped by statue or by painting, though the one were the boldest 
 Michael Angelo ever imagined, and the other the most exquisite 
 that his illustrious pupil, Raffaslle, ever made immortal. It is, 
 perhaps, not very much under three thousand years since the great 
 Homeric poems were first got by heart. It was many centuries 
 aftervvards before they were ever committed to writing, alone 
 preserved during all that time by the oral traditions of a people 
 whom they profoundly agitated and charmed. These poems were
 
 ON POETRY. 391 
 
 already old before the oldest system of philosophy was born. 
 Since they first appeared empires and philosophies have risen, and 
 flourished, and decayed. During that lapse of jtime, civilisation 
 has been won, and lost, and won again once more. Everything 
 has been changed except man and nature ; but man and nature 
 still endure ; and there endure, with them, the two old Poems 
 which image both, read now by schoolboys, careless of the con- 
 troversy about their authorship, with something of the interest which 
 they stirred when they were first poured forth by rhapsodists at 
 the banquets of forgotten kings. To endeavour to fix the prin- 
 ciples of poetry cannot, then, in the presence of such phenomena, 
 be justly deemed a frivolous discussion. Indeed it is more likely 
 that such phenomena may give rise to a sentiment the very opposite 
 to that of contempt. It may be said that phenomena of such 
 interest must have been so thoroughly investigated that the true 
 principles of poetry have, doubtless, long ago been settled. This 
 may be so. But there has never happened to come my way what 
 struck me as being an account of poetry that contained the truth, 
 the whole truth, and nothing but the truth. I shall mention a few 
 of the definitions of poetry which I have seen in order that their 
 individual correctness and their consistency with each other may 
 be judged of. A much larger number might doubtless be collected, 
 but I am obliged to rely on memory and some hasty references. 
 Johnson, in his life of Milton, says that " Poetry is the art of 
 uniting pleasure with truth by calling; imagination to the help of 
 reason." This definition may suit well enough such poetry at 
 "The Vanity of Human Wishes," or any other didactic composition 
 made up of sound moral truths expressed in verse instead of prose. 
 But, applied to the " Paradise Lost," or any other great creation, is 
 is not merely defective, but, as it appears to me, wholly misconceived. 
 Pope's well-known couplet is as follows : 
 
 '* True wit is nature to advantage dressed ; 
 
 What oft was thought, but ne'er so well expressed ;" 
 
 and by true wit, I am sorry to say, Pope appears from the context 
 to mean poetry. Of this unworthy definition it is enough to state
 
 39 2 ON POETRY. 
 
 that it degrades poetry to a thing of diction, and mistakes the out- 
 ward for the inward the body for the soul. Another definition, 
 which I have somewhere seen quoted with approbation, declares 
 that "Poetry is the art of expressing our thoughts by fiction." This 
 accurately defines allegory ; but allegory is not, simply as such, 
 poetical, and by separating our thoughts from the fiction which we 
 use for expressing them the definition becomes altogether in- 
 applicable to poetry, in which we may indifferently call the thought 
 the fiction, and the fiction the thought the things being in- 
 separable. The able and amiable James Montgomery, in his 
 lectures on poetry, discreetly declines to give any definition. " The 
 nature," he says, "or rather the essence of poetry, I cannot define, 
 and therefore shall not attempt it." The greatest female genius 
 that the world has probably ever seen has touched upon the sub- 
 ject with her usual eloquence. " It is easy," says Madame De Stael, 
 " to declare what is not poetry ; but if we wish to understand 
 what poetry is we must call to our aid the impressions which are 
 excited by a beautiful country, by harmonious music, by the sight 
 of a beloved object, and more than all by a religious sense of the 
 Divine Presence." There is much meaning here, but the thing 
 described is not, objectively, the cause which produces the effect ; 
 nor, subjectively, the mode in which the effect is produced, but 
 simply the nature and character of the produced effect. Antiquity 
 has given us a definition. Poetry, says Aristotle, is " an imitative 
 art" This is true, but it is not the whole truth, and, besides, 
 other arts, painting, for example, and sculpture, might with even 
 greater accuracy be defined in the same terms. A modern writer 
 of distinguished talents has, in some measure, followed Aristotle. 
 " By poetry," says Mr. Macaulay, " we mean the art of employing 
 words in such a manner as to produce an illusion on the imagina- 
 tion ; the art of doing by means of words what the painter does 
 by means of colours." But though much poetry is pictorial, all 
 poetry is not so. Homer and Scott, in their inimitable battle 
 pieces, show themselves great painters ; and it is wonderful how 
 strongly Milton, in the two first books of Paradise Lost, making 
 darkness visible, brings before our very eyes the fallen dominations
 
 ON POETRY. 393. 
 
 and all the horrors of their dread abode. On such occasions the 
 poet is but a painter using words for colours. But there is poetry> 
 and that of the most pathetic kind, which is not outward, or at least' 
 not wholly outward, which deals with abstractions and not images, 
 which pursues trains of feeling too subtle and refined to take any 
 visible appearance, and broods over " thoughts that do often lie too deep 
 for tears." Poetryof this kind Mr. Macaulay's definition willnotcovcr. 
 Lord Jeffrey need I say that I name this great critic with profound re 
 spect ? speaks thus of the noble art which I am now considering : 
 "The end of poetry, we take it, is to please ; and the name, we think, 
 is strictly applicable to every metrical composition from which we re- 
 ceive pleasure without any laborious exercise of the understanding.' 
 I dislike the intellectual epicureanism of this definition. Poetry, no 
 doubt, pleases ; but ths sole end of poetry is not to please ; and the 
 poet who puts that end alone before him will never give true plea- 
 sure. Metrical composition is not poetry because it pleases, but it 
 pleases because it is poetry. And why does Lord Jeffrey seem to 
 consider that a certain soft luxuriance of soul is to be indulged by 
 either the writer or the reader of poetry ? If he had said that 
 poetry is the product of another faculty than that which we com- 
 monly call the understanding, he would have laid down, I think* 
 sound doctrine. But he does not do this. A certain exercise of the. 
 understanding it seems there may be, only it must not be laborious. 
 Now it is true that when we speak of laborious exercise we mean- 
 exercise more or less painful ; and therefore, since Lord Jeffrey's 
 definition had already made the receiving- of pleasure the end of 
 poetry, the idea of everything laborious, that is, painful, was. 
 sufficiently excluded. But I object to the language in question, 
 not merely as surplusage, but as surplusage involving a false notion. 
 Taking the whole of Lord Jeffrey's definition together, I^cannot bur 
 regard it as conveying a low and inadequte representation of the end 
 of poetry, and as conveying no representation at all of the mode in, 
 which poetry attains its end. I shall not multiply these definitions- 
 Those which I have adduced and questioned will serve to show the 
 variety of views which have been entertained upon the subject- 
 Various and discordant as they are, they cannot all be correct ; bu c
 
 394 ON POETRY. 
 
 they may all be incorrect to a greater or a less extent, and I have 
 glanced at some grounds for thinking that they arc so. Conflicting 
 doctrines, in the meantime, are embraced by conflicting sects. You 
 have the classic school, which objects to everything warm and 
 florid, and talks about poetry being in its severity like a statue- 
 You have the romantic school, which objects to a mere marble 
 whiteness and chillness, and talks about poetry being, in its rich 
 variety, like a painting. You have easygoing old gentlemen 
 who regard Johnson's rules as laws of nature, and who are all 
 for Pope. You have excitable young gentlemen who strenuously 
 maintain that there is no poetry in Pope, and who are all for 
 Byron. You have gentlemen of every age who deem Pope, with 
 all his smoothness, terseness, wit and sense, to have had little 
 profound, and, therefore, little poetic feeling ; and Byron, with 
 all his passion, power, depth, and eloquence, to have always 
 written in a theatrical and exaggerated style, and to have never 
 reaped that " harvest of a quiet eye," which makes the poetic 
 wealth of William Wordsworth. Let these three high poetic 
 names be named in any general society, and the result is an instant 
 argument. And at last, when, if the disputants be not wearied, 
 everybody else is, it begins to be perceived that we can never 
 settle " Who are poets ?" till we have first settled " What is poetry ?'' 
 And how is an answer to this question to be sought ? Not, cer- 
 tainly, by any a priori reasoning. The effect of poetry upon us is a 
 fact in our mental constitution. In seeking for the cause of this 
 effect it would be idle to apply any other principles than those 
 which we apply to ascertain the cause of any other natural phe- 
 nomena. We are conscious of a certain stare of mind or feeling. 
 We call that which produces that state of mind or feeling, poetry. 
 What is to be done is to fix the particular state of mind or feeling 
 which we agree to consider the perception of poetry, and to fix the 
 particular quality or composition that produces the particular state 
 of mind or feeling so perceived. For these purposes we cannot 
 begin by laying down rules by which to try the facts. We must 
 first examine the facts, and from them derive our rules. Poets ex- 
 isted before critics ; and it was from an examination of poetry
 
 ON POETRY. 395 
 
 made without any rules that the first rules of poetry were them- 
 selves deduced. By the same inductive process by which the astro- 
 nomer ascertains the laws which regulate the motions of the 
 heavenly bodies ; by the same inductive process by which the 
 chemist ascertains the laws which regulate the combinations and 
 separations of the elementary particles of matter ; by the same in- 
 ductive process must the critic ascertain the laws which regulate 
 the production and perception of poetic feeling. To conduct such 
 a process is not easy. You cannot cast a poem into a crucible, 
 and subject it to a complete analysis, as the chemist does a com- 
 pound substance. Induction, in regard to mind, must, as has been 
 well observed, be the subject of observation as contradistinguished 
 from experiment. You are under the necessity of receiving the 
 phenomena in whatever shape or way, simple or complex, they may 
 chance to be presented to your observations ; and cannot, at 
 pleasure, change and multiply experiments. The result is that all 
 sciences of observation are comparatively slow of growth (compare, 
 for example, astronomy with chemistry), and, owing to the peculiar 
 nature of the intellect, no other science of observation is so tardy 
 in its progress, and after all so uncertain in its result, as the 
 science of the human mind. Of this difficult science the principles 
 of poetry and taste may be deemed to be a branch. But still 
 where much is dark some things are clear. Every man, and every 
 woman, and, I should think, every child, must be conscious of 
 having been occupied by two distinct sorts or descriptions of states 
 of mind. There are states of mind which are purely intellectual, 
 and there are also emotions which are states of mind of quite a 
 different kind. To perceive that two and two make four, that 
 the three angles of any triangles are equal to two right angles 
 that an argument adduced on any subject is a good one or 
 a bad one, that the relation of cause and effect (whatever 
 that is) subsists between certain phenomena, these are 
 instances of purely intellectual processe s or states of mind. But 
 ithese states are not all. To love, to hate, to fear, to be moved with 
 indignation, to be melted with compassion, to be awed by the sub- 
 lime and touched by the beautiful, these are states of mind easily
 
 39^ ON POETRY. 
 
 and entirely distinguishable from the intellectual states referred to, 
 and these are states of emotion. To one or other of these two classes, 
 according to the greatest master of refined analysis who has ever 
 applied himself to mental science (Doctor Thomas Brown), may 
 all our trains of thought which have not a direct external origin 
 be properly reduced. Now I take it to be obvious that, in consider- 
 ing the nature of poetry, we may get rid, at once and completely, 
 of all the intellectual states. No purely intellectual state can be at 
 all poetical. I comprehend a proposition stated to me, I draw an 
 inference from a fact communicated to me, I remember circum- 
 stances that happened to me. Put such merely intellectual processes 
 into whatever language you please, blank verse or rhyme, and 
 you cannot change their essential character. Prose they are and 
 prose they must remain. Facts compose knowledge, and methodized 
 knowledge is science ; and science, 'even if versified, set to music, 
 and sung, could never claim to be regarded as at all poetical. Let 
 me not be misunderstopd. I have, 1 think, heard Dr. Adamson say 
 on some public occasion, either here or at the College, that wonder 
 (which is an emotion) was probably the first origin of physical 
 inquiry. And there can be just as little doubt that to master 
 old scientific truth, and much more to discover new scientific 
 truth, is attended with a high degree of pleasure. But still 
 while the wonder in the one case and the pleasure in the 
 other are emotions, and as such capable of being represented by 
 poetry, the physical facts themselves are wholly different, and 
 never can be anything but prose. Archimedes rushing in triumph 
 from the bath at Syracuse, shouting his renowned " Eureka ,-" or 
 Newton, when as figure after figure of his calculations made it more 
 and more manifest that he had, indeed, at last discovered the true 
 theory of the heavens, he found the agony of that great excitement 
 more than he could bear, and was compelled to get a friend to bring 
 out for him the last results, might perhaps afford a sub- 
 ject for poetry. But no muse on earth could sing with interest 
 the principle of specific gravities, the discovery of Archimedes, 
 or infuse into the principia of Newton the least poetic fire. 
 Poetry, therefore, is conversant with emotion, and with emotion
 
 ON POETRY. 
 
 397 
 
 only. This will probably not be disputed by any person who has 
 ever read and relished one single deathless line. But everything 
 that is conversant with emotion is certainly not poetry. Let me 
 ithen distinguish, and at all hazards attempt to define. 'Whatever 
 composition, then, recognised as imaginary and ideal, presents 
 by means of words, artistically arranged in metre, images and 
 sentiments naturally creative, either directly or by suggestion of 
 emotion in readers, whose sensibilities are sound and active, 
 is, in my opinion, poetry. And no composition which does not 
 fulfil all these conditions can, in my opinion, claim the title. I 
 shall attempt to make good what I have now said by adverting to 
 these conditions separately. 
 
 I. It is essential, I think, to poetry that it be recognised as 
 imaginary and ideal. Reality of course produces an effect and a 
 greater effect than poetry, but the effect which it produces is a wholly 
 different effect. Nay, in so far as poetry produces, as it often does, 
 a temporary feeling of absolute reality, every feeling properly 
 poetic is for the time swallowed up in a deeper feeling, and it is 
 only the perpetually recurring consciousness that all is un- 
 real, bringing with it a sudden sense of relief, a pleasurable 
 perception of the writer's genius, and, perhaps, a complacent 
 recollection of our own sensibility, that restores us to the state 
 of mind in which the perception of poetic excellence consists. The 
 perception of the real in the unreal is an essential attribute of poetry. 
 Much has been written to show how it is that tragedy pleases. May 
 it not be said upon the principle just referred to, that it pleases be- 
 cause by its representations it shows the real in what is still felt 
 to be unreal ; because all excitement is pleasurable when not too 
 intense, which it rarely can be when we never lastingly forget 
 that what is viewed is but mimetic ; because no sooner does the 
 illusion become complete enough to occasion pain, than the mind, 
 made restless by its distress, turns from the scene upon itseJf, in 
 which very act the spell of the illusion is broken, and there only 
 remains behind a certain feeling of excitement, together with an 
 admiring sense of artistic excellence proportionate to the excitement 
 felt. In general the fear is not that we shall be too much moved
 
 398 ON POETRY. 
 
 but that we shall be moved too little, and therefore, the closer we 
 can be carried to the confines of the actual the more do we admire 
 the ideal. But still the ideal and the actual resemble those lines 
 that mathematicians speak of, which, though they may approach 
 each other indefinitely, yet can never meet. Did we at once 
 absolutely and completely confound them and take fiction for fact, 
 the barrier which divides what is prose interest from what is poetic 
 interest would be instantly removed. 
 
 II. Poetry must work by words. By this as well as other 
 peculiarities it is essentially distinguished from music, painting, and 
 sculpture, which are all, however, more or less imitative arts pro- 
 ductive of emotion. But for the absence of words as the appointed 
 means of producing the designed effect, a definition of music might 
 in a great degree apply to poetry. " Music," says Dr. Chalmers, 
 in his Bridgewater Treatise, " apart from words, is powerfully fitted 
 both to represent and awaken the mental processes, insomuch that 
 without the aid of spoken characters many a story of deepest in- 
 terest is most impressively told, many a noble and tender senti- 
 ment is most emphatically conveyed by it." This is a fine descrip- 
 tion of fine music. But still the language of music, though common 
 to all men, is uncertain and obscure, nor can its cadences, however 
 rich in touching or sublime associations, enable it to rival poetry, 
 which can at all times give clear utterance to what music with its 
 inarticulate sounds can go no further than suggest. That the con- 
 dition of working by words instead of by colours or the chisel at 
 once distinguishes poetry from the voiceless arts of painting and of 
 sculpture, and opens for its exercise an immeasurably nobler field 
 of operation, is too obvious to require proof. 
 
 III. Poetry must work by words artistically arranged in metre. 
 This will, perhaps, be questioned. Poetry, it may be said, is in the 
 thought, not in the language, and much less in any particular 
 structure of the language. Rhyme is confessedly not essential to 
 poetry. Great masters have not merely pronounced it not essential, 
 but have regarded it as positively detrimental. Milton, in the pre- 
 face to Paradise Lost, speaks to the effect that rhyme is a barbarous 
 fetter, confining the free movement of the poet ; an arbitrary yoke
 
 OX POETRY. 
 
 399 
 
 which the free ancients never knew, and one which he thinks the 
 moderns should contemptuously cast off. We may not be inclined to 
 speak so disparagingly of a style of composition which, by causing the 
 recurrence atregularintervals of the same sounds, makes poetry more 
 musical, which adds lo our enjoyment of the poem a pleasing 
 sense of difficulty surmounted, and which, by the necessity under 
 which it lays the poet of conforming himself to the measure m 
 which he writes, tends to check redundancy of expression and to 
 cut the meaning clearly out. But if rhyme, which is language 
 arranged so as to secure the recurrence of the same sound, be not 
 essential, why should metre, which is language arranged so as to 
 secure by means of quantity and accent a certain measured march, 
 be essential? Blank verse is metre ; other verse is rhyme. If 
 rhyme miy be pronounced unessential, why not metre, since both 
 may be said to be equally natural or equally artificial ? There cer- 
 tainly are difficulties in the way in including metre as essential, 
 but i am disposed to think that there are greater difficulties in the 
 way of excluding metre as unnecessary. Poetry, it is plain, cannot 
 exist in the thoughts alone in such a way as to be independent of 
 all language. There may be a mass of vague and inarticulate 
 emotions, the chaos out of which some fair creation is to spring, 
 but so long as the elements remain without form and void there is 
 no poetry. In building the lofty verse, words (as I have already 
 intimated) are both the materials which the poet uses and the tools 
 with which he works. But will any sort of words serve ? This 
 doctrine will not, I think, be held by anyone who reflects upon 
 the mysterious union which subsists between our emotions and the 
 language in which they spontaneously overflow ; and how, when 
 we are deeply moved, there arise, without effort or design on our 
 part, words which are different from the words of calm and common 
 life. Sir Walter Scott says somewhere that in the disputes of 
 Highlanders the language often rose in character so much that it 
 was common for one to say to the other " You have got to your 
 English now," meaning to say, " Now you have got beyond your 
 temper." Thoughts that breathe use naturally words that burn. 
 There therefore is, and must be, a certain difference between the 
 diction of poetry and the diction of prose, arising simply from the
 
 JJ.OO ON POETRY. 
 
 fact that the things to be represented are different, and that 
 language, by a sort of mannerism more easily felt than described, 
 identifies itself with that which it is to represent. Now it is found 
 that all strong emotion not merely uses words of a peculiar character, 
 but that those words spontaneously arrange themselves into a 
 measured form. We all know that to construct harmonious periods, 
 even in prose composition of a moving character, is taught as art ; 
 but it would not now be taught as art unless it had first been 
 taught by nature. Hence by no arbitrary canon, as I conceive, 
 but by a primitive law of thought and language, a certain 
 harmonious arrangement, is found to attend the expression 
 
 of feeling. " The long resounding march " is to be expected where- 
 -ever there exists ll the energy divine." Some sort of measure or 
 
 metre, accordingly, is found to belong to everything that any 
 people, savage or civilised, has viewed as poetry. Of Hebrew poetry, 
 the oldest poetry, though the true pronunciation of the language 
 islost, enough remains to satisfy both eye and ear that the structure 
 was regularly metrical, and, indeed, the noble version of it in our 
 English Bible does justice to its music. We find the quality univer- 
 sal. Is it too much to conclude of a universal quality that it is 
 
 essential ? If by the laws of thought and language it be not essential 
 how comes it to be universal ? For my own part, though not insen- 
 sible of the force of some opposite considerations, I regard metre 
 or, at least, a certain rythmical arrangement, as one of the criteria 
 of poetry, because the language of emotion naturally takes such a 
 form ; because, historically speaking, all poetry has adopted 
 it ; because by its artistic, or, if you will, its artificial character, 
 it keeps us constantly in mind that the composition is, after all, 
 ideal ; and because it is a clear and convenient, if not the only wall 
 of separation, that can be raised between poetry proper and elevated 
 prose. If in the latter there are occasionally presented thoughts 
 which we call poetical we use in general a metaphor. There may 
 be the raw material of poetry, but there is not the manufactured 
 article. The ore, however precious, is still in the rough. Without 
 metre it wants the image and superscription of Apollo. It may be 
 very valuable, but it is not poetry. 
 
 IV. Once more, poetry, I have said, must be creative of emotion.
 
 ON POETRY. 
 
 The creation of emotion is its great end. Images and sentiments, 
 but chiefly the former, are the means by which it attains that 
 end. Poets may communicate knowledge Milton's learning was 
 immense. Poets may exercise the logical powers Dryden's reason- 
 ing in verse is much admired. Poets may give striking views of 
 life and manners Pope and Johnson have both done so. And, 
 though difficult, it is not impossible to wed true poetry to theme* 
 in themselves prosaic. But the poets spoken of, in so far as they 
 simply do such things as I have stated, might as well be special 
 pleaders. I have seen what was called a poem upon conveyancing 
 with a great deal about feoffments at common law and the statute 
 of uses. Now all such things are beside the province of poetry, 
 which, whenever it meddles with matters merely intellectual, and 
 therefore prosaic, only does ill what prose would do well. The 
 philosopher, the historian, the moralist, the scholar, have each les- 
 sons to communicate ; and when the poet, as a teacher, undertakes 
 to teach any of those lessons, he sinks his peculiar character and 
 assumes another. Personifying as we do poetry as a female, one 
 would say that science arrayed in a poetic dress is as awkward as 
 a man in a woman's clothes. What Sir Hugh Evans, in the " Merry 
 Wives of Windsor," says in reference to a similar disguise, applies 
 very strongly. " I like not," says he, " when a woman has a great 
 peard ; I spy a great peard under her muffler." 
 
 To call up emotion, then, is the sole business of the poet. I use 
 the term emotion in its widest sense. We commonly restrict its 
 meaning to the strongest feelings. But in its philosophic accepta- 
 tion it embraces every class of mental states, accompanied by 
 pleasure or pain. When desire is very strong, or aversion very 
 violent, we are accustomed to denominate the feelings passions. 
 Such are fear, and pride, and hate, love, strong as death, and 
 jealousy, cruel as the grave. But when I speak of emotions I in- 
 clude not merely passions such as these but the perception of the 
 sublime or beautiful whether in external nature, or in human 
 action, or in human art the sense of sympathy, hope, joy, affection, 
 everything in short that warms and colours with any peculiar feeling 
 the cold transparency of pure intelligence. Understanding the term 
 
 DD
 
 4-O2 ON POETRY. 
 
 emotion in this its proper sense, I am strongly disposed to think 
 that if emotion be not excited by any composition affecting to be 
 poetry, that composition is not what it affects to be. But what? 
 May there not be invention, and imagination, and fancy, in con- 
 ception, metaphors and similies in language, and yet no emo- 
 tion stirred ? Certainly. Well, then, are not these things at all 
 times poetry ? In my opinion they are not. And as a brief con- 
 sideration of this subject will enable me to make my general 
 views more clear, I shall devote a few minutes to its examination. 
 Invention, imagination, and fancy may, I think, be here treated 
 as synonymous. We generally, indeed, use the term invention in 
 regard to discoveries in science and the manual and mechanical 
 arts ; imagination to the faculty by which the form and character 
 of fictitious creations are devised ; and fancy to the beautiful but 
 inferior quality by which the figures struck out by imagination are 
 illustrated and adorned. I deem it unnecessary, however, to dis- 
 criminate \vith any nicety between these different shades of 
 meaning. But is it not clear that the degree in which the 
 imaginative faculty exists is no measure of the degree in which 
 the poetic faculty exists ? Poetry is no doubt in a peculiar sense, 
 imaginative, but in philosophy and the useful arts there is 
 imagination too. Milton knew, as matter of fact, that an 
 eclipse of the sun was felt by all to be a sublime and most impressive 
 object ; everybody else, however, knew this just as well. But 
 Milton had to convey a sublime and moving image of the 
 great Apostate Spirit whose form had not yet lost all its original 
 brightness, How was this to be done ? Could Newton, who knew 
 all about eclipses, have helped the bard had the bard needed help ? 
 No. But the inward eye of him whose outward sight was quenched 
 saw that between Satan in his darkened glory and the sun in dim. 
 eclipse there existed, not an actual resemblance indeed, but that 
 sort of analogy the perception of which is what chiefly constitutes 
 imagination. And then all the other aids to emotion are called 
 up ; the disastrous twilight which is shed over half the nations;, 
 the fear of change with which monarchs are perplexed. This, we 
 all feel, is high imagination. But about the time that Milton was,
 
 ON POETRY. 403 
 
 finishing the Paradise Lost another man chanced one day to be 
 sitting under an apple-tree at Woolsthorpe, when an apple fell be- 
 fore him to the ground. That man was Newton. Could Milton, if at 
 the spot, have discovered any significancy in the simple fact that 
 had taken pi ace ? No. But Newton saw, between the motion of 
 the apple to wards the centre of the earth, and the motion of the planets 
 in their orbits, that sort of analogy which I have already spoken of, and 
 thus became immortal. Now all feel that this again was an act of high 
 imagination. Who shall say whether the imagination of the poet or 
 that of the philosopher was, intrinsically, the higher? Who shall 
 settle the precedency of these mighty intellectual potentates? It 
 ought not to be attempted. " Newton was a great man," 
 says Coleridge in his Table Talk ; " but you must excuse me if I 
 think that it would take many Newtons to make one Milton." 
 But, in truth, their genius has not common qualities and cannot be 
 compared. You might as well attempt to measure whether it is 
 further from this to the first of June than from this to Stellenboscb. 
 But it is clear that Milton's act of imagination was poetry, and 
 that Newton's act was not. It would be easy to show by a large 
 induction of instances that imagination or invention is exercised 
 by able men in every pursuit. Such men see analogies which other 
 men do not see ; and that very perception constitutes invention 
 or imagination. To discover new arguments in demonstration, 
 new topics in rhetoric, new theories in science, new images 'to. 
 poetry all are acts of the same generic character. Nay, to -pot 
 the strongest case, an able lawyer must have imagination. The 
 contests of the bar mostly consist in the opposing counsel taking up 
 opposite legal principles, both generally sound j and thence, by 
 the invention of intermediate arguments, seeking to show 
 that the case in court is in analogy with one of these principles 
 rather than the other. " There never yet," said the great 
 Lord Hardwicke, was a good lawyer, who was not a good 
 . 'put-case' man." Now before cases are put they must first be 
 invented ; and to invent them is an intellectual act of the same 
 kind, though far humbler in degree, with that which lit upon the 
 law of gravitation. Imagination, therefore, as it appears to me, is 
 
 DD 2
 
 404 ON POETRY. 
 
 exercised, and exercised to a very large extent, in mental opera- 
 tions which are not poetical, and which no one dreams of calling 
 such. Look, for instance, to prose fiction. A novel is certainly a 
 work of imagination. But a novel is not therefore a poem. Nay, 
 a romance, as such, cannot be called, and is not considered, poetry. 
 The interest derived from incident, from delineation of character, 
 from all description which purports to convey information, and 
 the other matters that chiefly constitute romance, is not a poetic 
 interest. And in so far as the Drama, or any other composition, 
 in prose or verse, secures its ends by such means as those which t 
 have now alluded to, I do not consider that it can be called poetry. 
 Romances of the spectral, hand-and-dagger, trap-door school of 
 Mrs. Radcliffe, do, no doubt, produce a great effect, if read at 
 night in lonely places. Many melo-dramatic pieces may do the 
 same thing. But there is no poetry here. The interest of such 
 things is felt to be comparatively a vulgar interest. Why? Because 
 they do not work with the words of pure emotion, marshalled in 
 metrical array, and because the imagination which they exhibit 
 does not involve the perception of those more subtle and refined, 
 and, therefore, when true, more beautiful analogies which the 
 poet's imagination detects and depicts. Look, again, at eloquence. 
 Eloquence has been termed, and not unhappily, "the art of persua- 
 sion." As the end of reasoning is to convince the understanding, so the 
 end of eloquence is to influence the will ; but both, again, are distinct 
 from poetry, which is not a means toward any ulterior end, but simply 
 emotion kindled for emotion's sake. The orator presents arguments 
 and motives ; the poet presents neither, but only fine conceptions 
 which have elevated or touched his own feelings, and which he knows 
 will, by the sure law of sympathy, elevate or touch the feelings of 
 his readers. A speech which should imitate the diction, the measure, 
 the images, or the sentiments of poetry, would be infallibly a bad 
 speech. If the speaker have poetry in him, he must bear it, as 
 the flint does fire. When much enforced he may emit a hasty 
 spark, but he must straight grow cold again, if he would succeed 
 in real life, where the gorge of every reasonable being rises to see 
 a man playing at poetry where there is work before him and
 
 ON POETRY. 
 
 business to be done. Were I required to define true eloquence, I 
 should venture to term it sound sense vehemently urged ; reason 
 made red hot by passion. The orator may use figurative language ; 
 but it must be sudden, direct, and, at least seemingly extem- 
 poraneous ; language that presents obvious resemblances, not lan- 
 guage which suggests remote analogies. The metaphor in which 
 there is a fusion into one of the image and the thing imaged is 
 occasionally allowable ; though the simile is too slow and studied 
 But the metaphor, though the product of imagination, is not 
 necessarily poetic. I should say that eloquence was distinguishable 
 from poetry by the absence of a metrical arrangment in its language, 
 by the nature of the object to which it is directed, and by the 
 nature of the means by which it seeks to attain that object. 
 I feel that some obscurity hangs over the terms in which I 
 have ventured to distinguish between these two styles of composi- 
 tion, considered as mental operations ; and perhaps the difference 
 is to be felt, not described, in the same way as we are often con- 
 cious of essential differences in character between two p.-rsons 
 whom it would be difficult to avoid describing in the same way. 
 The difference between oratorical and poetic power is proved pretty 
 clearly by the fact that, from Demosthenes downwards, great 
 orators have rarely versified at all, and still more rarely versified 
 with any success. 
 
 It appears, then, I think, that the object of the poet is to raise 
 emotion, and to raise it by a different machinery from any used by 
 any other writer ; that he is not concerned with either historical 
 or scientific truth ; that he neither reasons, nor compares, nor 
 classifies, nor communicates knowledge, nor logically infers 
 nor rhetorically persuades ; but by images and association, 
 of the peculiar kind suggested by his peculiar genius, conveys to 
 other bosoms the multitudinous and ever-varying emotions which 
 animate his own. To have the perception of poetry without the 
 experience of emotion I hold to be a contradiction in term. A 
 vibratory action amongst the elements of emotion is in poetry the 
 true theory of light. 
 
 But while I consider the excitement, in a certain way, of some
 
 406 ON POETRY. 
 
 emotion of feeling as contradistinguished from every opera- 
 tion merely intellectual, as characterising everything justly entitled 
 to the name of poetry, I do not regard everything else as out of 
 place in a poem. Far from it. A poem may borrow facts from 
 science ; plot from prose fiction ; eloquence from oratory ; and be 
 all the better for so doing, These things, by varying the interest, 
 tend to increase it ; and alternating as they do with the really poetic 
 passages, serve to set them off to more advantage on the prin- 
 ciple of light and shade. In themselves, however, they are 
 not poetry, but something without which poetry could not, perhaps, 
 be long enjoyed. The doctors tell us that food very much con- 
 densed over-stimulates the system and soon brings down our body's 
 strength. It is therefore proper, they say, to mingle such food 
 with other substances not in themselves nutritious. The same 
 principle applies to the mind ; and hence the use of mingling, 
 particularly in long poems, many things which in themselves are 
 not poetry. 
 
 V. The last clause of the definition which I have given, 
 requires that the emotion to be created should be created in 
 readers whose sensibilities are sound and active. In vain is 
 melody poured forth to people who have no ear for music. In 
 vain is poetry poured forth to people whose sensibilities are deadened 
 or depraved. But who shall judge whether sensibilities are sound 
 or otherwise ? To answer this question would require time ; and 
 therefore it cannot here be answered. It raises the old question 
 about the standard of taste, and involves also a discussion of the 
 nature of beauty. Referring, upon these subjects, to the 
 many writers who have treated of them, I shall merely add 
 that the force of traditional dogmas, the effect of accidental 
 associations, the influence of habit, and the authority of names, have 
 tended to throw so much into confusion the whole of the 
 principles by which poetic excellence should be judged, that it 
 becomes the more necessary to try and discover whether there are 
 in truth any such principles, and if there be, to state their nature. 
 It were well to fix foundations. To render this address at all com- 
 plete, it would be necessary to adduce a number of examples, to
 
 ON POETRY. 407 
 
 prove that in every line which the heart hails as poetry there is a 
 communication of some emotion. By such an induction, if candid and 
 complete, we might verify the hypothesis. If it stood the test, we 
 might then, by a deductive process, so apply the law established, 
 as to determine how much of what is misnamed poetry it would 
 be necessary to rank no higher than prose in masquerade. But such 
 a task, at any time beyond my strength, I could not now even at- 
 tempt. It was my design to have concluded with some general 
 remarks upon the influence of poetry on society in general, and 
 upon poets themselves ; to have examined how far the former may 
 be raised by it above low concerns and selfish cares ; to have traced 
 how it comes to pass that the latter, in so many unhappy instances, 
 had marred the god-given strength ; to have inquired incidentally 
 whether there is any, and if so, what sort of connection between 
 mind and morals, genius and goodness. In such a course it would 
 have been my object to show that, upon the whole, poetry has done 
 service ; and that while foolish people of both sexes, who have 
 applied themselves to it, have remained as foolish as they were at 
 first, it is made evident by many examples, that in poetical sen- 
 sibility there is no practical unsoundness. But to do all this would 
 exceed your patience. These, however, are not the times in which 
 to fear excess of high poetic feeling. It is an age too late. Lan- 
 guage, becoming philosophical, is ceasing to be picturesque ; and 
 the imagination, which took the turn of poetry when the world 
 was younger, now takes the turn of science. It may be that the 
 change is for the better, though it is hard to think that England can 
 never behold another Milton. And having named once more this 
 mighty poet, I shall conclude with a passage from his prose works, 
 in which, anticipating the noble labour of a later period, he shows the 
 value which he placed upon poetic genius, and describes in a mag- 
 nificent strain some of the uses towhich itoughttobedevoted. "These 
 abilities, wheresoever they be found, are the inspired gift of God, rarely 
 bestowed, but yet to some (though most abused) in every nation : 
 and are of power, beside the office of a pulpit, to inbreed and 
 cherish in a great people the seeds of virtue and public civility, to 
 allay the perturbations of the mind, and set the affections in right
 
 408 ON POETRY. 
 
 tune ; to celebrate in glorious and lofty hymns the throne and 
 equipage of God's almightiness, and what He works, and what He 
 suffers to be wrought with high providence in His church ; to 
 sing victorious agonies of martyrs and saints, the deeds and 
 triumphs of just and pious nations doing valiantly through faith 
 against the enemies of Christ ; to deplore the general relapses of 
 kingdoms and states from justice and God's true worship. Lastly, 
 whatsoever in religion is holy and sublime, in virtue amiable or 
 grave ; whatosever hath passion or admiration in all the changes of 
 that which is called fortune from without, or the wily subtleties 
 and refluxes of man's thoughts from within ; all these things, with 
 a solid and treatable smoothness, to point out and describe." 
 
 The Rev. BROWNLOW MAITLAND said : In moving a vote 
 of thanks to the late Committee, I shall not, Sir, attempt 
 to make a set or literary speech, which would be pre- 
 sumptuous in me before others who are much better able to 
 do so than myself, and especially in the overawing presence of these 
 mighty volumes which encompass us, richly treasured with the 
 intellectual fruit of ages. I should almost fancy that I saw some 
 of the great philosophers and students and divines of older days, 
 whose wisdom and learning are here stored up for our profit, glaring 
 at me from the backs of their old tomes, and frowning down their 
 condemnation, were I to do anything so unbecoming as to prate 
 idly and dogmatically before them. Yet, as I am on my legs, and 
 I suppose the Cape, like England, expects every man to do his 
 duty, and contribute his mite, however humble, to the common 
 stock, I will venture to say a few words on the subject foremost in 
 our minds to-day the value to us of this noble library. The 
 possession of it must be felt to be a great privilege, and one in 
 which we are singularly favoured in comparision with other colonies. 
 But were I to indulge in a strong expression of feeling on the point, 
 I might perhaps be cut short by some matter-of-fact person asking 
 how it is possible for him, busied as he is in the active duties of life, 
 " from morn to noon, from noon to dewy eve," ever to penetrate 
 into these treasuries of knowledge, ever to get beyond their mere 
 titles, or to find them more than vaunts of sealed-up wisdom, totally
 
 ON POETRY. 409 
 
 inaccessible to him, since to read through these shelves would occupy 
 hundred of years of incessant toil. And many, doubtless, on gazing 
 on an extensive library like this, have felt a sensation of sinking and 
 despair at the utter hopelessness of grappling with its contents. 
 How much of the field of science must be left unexplored by al- 
 most all of us ! We have not all the tread of him whose powers, 
 Sir, you have so justly eulogized ? We are not all Adamsons. Yet 
 we must not despair because we can but grasp little ; that little let 
 us gather of the best quality and in the best way. And whoever 
 aids us in overcoming the difficulties is our benefactor. I will 
 therefore mention one way in which even the least-leisured man 
 may make a good use of the library. In thinking, reading, con- 
 versing, observing, in fact, in every occupation and at every turn,, 
 multitudes of questions arise before us, in history, in physics, morals, 
 philosophy, language, &c., which we are too ignorant to solve. 
 Now in such a case, instead of letting the matter alone, and being 
 content with ignorance, let the point be noted as one to be 
 inquired of ; and in the first leisure half hour (and every man 
 has, or ought to have such) come down to the library, and 
 turn up the book which will resolve the question ; and then 
 you have got a fresh and distinct item of knowledge. And you have 
 got it in the best way, the most likely for it to be preserved and 
 of use ; for it does not fall on the mind while in an inert or 
 uninterested state, to be idly received and passed over into oblivion ; 
 but the mind, being excited on the point, receives the information 
 with appetency, makes it its own, and works it into its system. 
 Thus by a daily but easy effort a man, with however scanty leisure, 
 may make a sensible and steady progress in knowledge. There is 
 one other remark, Sir, which I should wish to make with your per- 
 mission. It is of a more serious nature, and will perhaps come 
 best from myself. I would say that our possession of this library 
 lays a responsibility on us. It is a maxim of universal application, 
 an axiom in morals, that privileges imply duties, opportunities 
 bring responsibilities. We are responsible, then, that we use this 
 library, and use it well. Not to use it at all would be a very 
 thankless return for the privilege, and argue great insensibility in
 
 41 O ON POETRY. 
 
 ourselves, and little desire for improvement. But we must also 
 take heed that we use it well, for unhappily it is not impossible to 
 do otherwise. For instance, to feed only on the light things which 
 amuse the fancy and move the feelings would be an unprofitable 
 use of it ; for it would beget a mental flatulence and dispepsy, and 
 unfit us for digesting anything solid and nutritious. To read and 
 study in a spirit of pride and dogmatism would also be hurtful, at 
 least as to morals, and they rank before intellectuals ; for it would 
 be to turn our treasures into the food of pride, one of the great 
 faults of our nature, the antagonist of all excellence and improve- 
 ment. And much more would it be an ill use to sever between 
 the intellectual enjoyments which we gather here and the thought 
 of Him who is the source of them all, who is Himself the Supreme 
 Intellect, the Divine Artificer, the former both of our minds 
 and of all things which occupy them. I am persuaded that the 
 fields of knowledge can be explored in a manner suitable to beings of 
 our spiritual mould and fashion only when the search through them 
 is accompanied by an unceasing recognition of the Omnipresence in 
 them of the Divine Mind ; by an unvarying ascription unto Him 
 of all that is mighty in operation and admirable in excellence, by a 
 desire to track out His footsteps in all the expanse before us, and by 
 veneration of His power and wisdom and goodness, His exquisite 
 skill and taste, as discovered by every part of His manifold works. 
 So it was that the first name in philosophy, our own profound New- 
 ton, studied nature even as God's handiwork ; finding everywhere, 
 with humble and pious reverence, the traces of the Divine 
 Architect, and adoring His infinite perfections throughout the whole 
 range of his matchless discoveries. In him we have an example of 
 the harmony between piety and philosophy ; and of their elevating 
 effect when joined in religious union. And truly a noble and a 
 holy thing is human knowledge, when imbued with piety, and 
 rendered subservient to higher and heavenly mysteries ; for it brings 
 man nearer unto that which is divine, and is a pathway unto the 
 glorious destination to which the pure in heart are called. With these 
 imperfect observations, I beg to move that the thanks of this meeting 
 be given to the Committee for their services during the past year.
 
 ON POETRY. 411 
 
 The CHAIRMAN : Before putting the question, I should wish to 
 say a word or two, to express the pleasure with which I, and I am 
 sure you too, have heard the remarks of my reverend friend 
 Mr. MAITLAND. I am the more pleased that those observations have 
 been made, because they have in some degree indeed in a very 
 sufficient degree supplied what I feel to have been a vacuum in my 
 opening address. It is quite true that the Chairman at the annual 
 meeting should consider himself counsel for the institution, and 
 like every other counsel know nothing but his client 
 In the direct advocacy of the library to-day I may seem 
 to have been wanting. But I would say, in my own defence not 
 that my reverend friend has put me on my defence, far from it 
 that, in taking office to-day I was peculiarly situated. There is a 
 witness here who can avouch my statements and who spoke 
 to me regarding the chairmanship in a way from which 
 I gathered that the Committee, having thought of this body and that 
 body, had at last said to each other, " It can't be helped ; get the 
 Attorney-General !" When asked, however, I said, it is imposible ; 
 I have been chairman before, and have said my say ; I have no new 
 matter, I can't serve. " You don't mean to say," said Mr. JARDINE, 
 <' that you officiated as our chairman ?" I replied that J certainly 
 did mean to say so, and that the matter was beyond a doubt. Our 
 friend was for some time incredulous, but at length consoled and 
 complimented me by the assurance that everything I then said 
 would be utterly forgotton by everybody else as completely as it 
 obviously had been by himself. But what I formerly delivered 
 remains recorded against me in print, and could not be 
 repeated, and under these circumstances I am glad that the 
 claims of the Public Library have been advocated, in the 
 presence of this company, in the way in which they have 
 been ; since the perpetually changing nature of our society 
 here renders an annual renewal of such advocacy most expedient. 
 I am, therefore, glad to have heard an Englishman, of cultivated 
 mind, and comparatively a stranger yet in the Colony, give utterance 
 to his opinion of the advantages which this institution is calcu- 
 lated to confer on our community. No doubt, as he strikingly
 
 412 ON POETRY. 
 
 observed, the sight of a great library creates a sinking in the mind 
 of everyone who reflects how little of what is therein contained he 
 knows, or is likely ever to know. There they are, shelves over 
 shelves, piled with volumes of which many of us have hardly time 
 to read the titles, and under these circumstances a man, who, in 
 some profession or calling, lives by his labour, may seem excluded 
 from the hope of making any decided impression upon such a mass 
 of matter. What then ? May he not do something ? Pope says, 
 you know, that " a little learning is a dangerous thing." It maybe 
 so; but surely no learning is more dangerous. There is an adage, 
 and every hungry man feels its force, that " half a loaf is better 
 than no bread," and I think the proverb a better one than Pope's. 
 There is almost no man to whom this library may not be most 
 serviceable. Want of time may be pleaded, but where there is a will 
 there is a way, and if there be a taste for reading it will, in some 
 way or other, manage to be gratified. Consider what a debt we 
 owe to those who wrote the books around us. There is scarcely a 
 volume there, old or valueless as you may view it, and 
 one which you would contemptuously cast aside, which the au- 
 thor, by the midnight lamp, has not laboured at with care, and 
 toil, and hope, and an interest which gives it some degree of 
 worth. To those benefactors of their race who have produced 
 these books, who are gathered to the narrow house and the long 
 sleep, we owe a debt of gratitude which we only pay by prizing, 
 the books they have produced. Following up the idea thrown out 
 by the preceding speaker, I have made these remarks, and I was 
 only deterred from insisting before on the character and claims of 
 the library because I had already borne my testimony, and could 
 add nothing to what I then declared. But I may now express my 
 conviction that this library is the very best institution in this Colony, 
 and that the colonists can never cherish it too much. Now the 
 circulation of its books is as certain and as regular as the circulation 
 of the blood. We can't value it without thinking of the disastrous 
 effects which would be produced if by any convulsion of nature 
 the ground opened and it sunk from out our town. The con- 
 sequences would almost be that those upper ranks, from whom
 
 ON NATAL BEING FORMED A SEPARATE PROVINCE. 413 
 
 knowledge and civilization should naturally descend to those below 
 them, would themselves run the risk of falling into what, com- 
 paratively speaking, I might term a sort of barbarism. I have not 
 considered it improper to interpose these few remarks, and I now 
 beg leave to put the question, which is, that the thanks of this 
 meeting be given to the retiring Committee for their services during 
 the past year. 
 
 The motion was carried unanimously. 
 
 Thanks were then most cordially awarded to the Chairman, and 
 the meeting separated. 
 
 ON NATAL BEING FORMED A SEPARATE 
 PROVINCE. 
 
 [Legislative Council, August 21, 1845.] 
 
 The ATTORNEY-GENERAL said : I have the honour, Sir, on the part 
 of His Excellency the Governor, to submit to the Council, for the 
 purpose of being read a first time, the draft of an Ordinance in 
 respect to which it may be convenient that I should make one or 
 two explanatory remarks. The Council are aware, and the public 
 also, that it some time ago pleased Her Majesty the Queen to 
 declare her intention to establish in the District of Port Natal a 
 British Government. For a considerable period the precise nature 
 of that Government was not communicated by the Queen ; but it 
 has appeared to Her Majesty, for reasons into which her responsible 
 advisers have very largely entered, that the District of Port Natal 
 should not be created, for all purposes, a separate and independent 
 Government ; but, for certain purposes, should be constituted a 
 part or portion of this Colony. Being of opinion that in regard to 
 all judicial, financial, and executive arrangements, a practical 
 separation may conveniently be had, it has at the same time 
 appeared to Her Majesty that the legislation for Natal may most
 
 414 ON NATAL BEING FORMED A SEPARATE PROVIN'CE. 
 
 fitly and advantageously be conducted, at least for a time, by the 
 Legislative Council of this Colony. For this purpose, and in order 
 to effectuate these gracious intentions, Her Majesty has caused to be 
 issued certain Letters Patent, which I hold in my hand. The 
 effect of these L etters Patent is so clearly and succinctly stated on 
 the face of the instrument itself, that it may not be inexpedient 
 that I should read the enacting clauses to the Council : 
 
 " Whereas by Letters Patent under the great Seal of Our United 
 Kingdom of Great Britain and Ireland, bearing date at Westminster^ 
 the Nineteenth day of December, One Thousand Eight Hundred 
 and Forty-three, in the Seventh year of Our Reign, We did con- 
 stitute and appoint Our Trusty and Well-beloved Sir Peregrine 
 Maitland, Knight Commander of the Most Honorable Military 
 Order of the Bath, Lieutenant-General of Our Forces, to be Our 
 Governor and Commander-in-Chief, in and over Our Settlement 
 at the Cape of Good Hope in South Africa, with its Territories 
 and Dependencies, as also of the Castle, and all Forts and Garrisons 
 erected, or established, or which should be erected or established, 
 within the said Settlement, Territories, and Dependencies. 
 
 " And Whereas, since the date of the said recited Letters Patent, 
 it hath seemed good to us to annex to the said Settlement of the Cape 
 of Good Hope, the Territories occupied by Our Subjects through- 
 out the District of Natal, in South Africa j Now know Ye, that 
 We of Our especial grace, certain knowledge and mere motion, 
 have annexed, and do hereby annex, the said District of Natal to Our 
 said Settlement of the Cape of Good Hope, as a part and portion 
 thereof. 
 
 " Provided, nevertheless, and We do hereby declare Our pleasure 
 to be that no law, custom, or usage now in force within Our said 
 Settlement of the Cape of Good Hope, shall by force and virtue 
 hereof extend to and become in force within the said District of 
 Natal, and that no Court or Magistrate of or within Our said Settle- 
 ment of the Cape of Good Hope shall by force or virtue 
 hereof acquire, hold, or exercise any jurisdiction within the 
 said Colony of Natal, but that it shall be competent to and for the 
 Legislature of Our said Settlement of the Cape of Good Hope to
 
 ON NATAL BEING FORMED A SEPARATE PROVINCE. 415 
 
 make, ordain, and establish all such laws and ordinances as to them, 
 shall seem meet for the peace, order, and good government of the 
 said District of Natal, whether in conformity or not in conformity 
 with the laws and ordinances in force within the other parts of Our 
 Settlement at the Cape of Good Hope, any letters patent, charters,, 
 orders in council, local ordinances, or other law or usage to the 
 contrary notwithstanding. Provided that, always, all laws and 
 ordinances, so to be made as aforesaid, for the peace, order, and 
 good government of the District of Natal, shall be so made in such 
 and the same manner, and with, under, and subject to all such and 
 the same conditions, restrictions, and reservations as are or shall be 
 in force within Our said Settlement, in respect to the making of 
 laws and ordinances for the peace, order, and good government of 
 the other parts thereof. 'And We do hereby reserve to 
 Ourselves full power and authority to revoke or alter these 
 presents, as to us shall seem meet. In witness whereof, 
 We have caused these Our Letters to be made Patent. '* 
 This, Sir, is the substance of these Letters Patent ; and the legal 
 effect of this instrument unquestionably is, to annex to this Colony,, 
 as a part or portion of it, and for all legislative purposes, the District, 
 of Natal. Two important questions, therefore, necessarily arise r 
 one having reference to the duties of the Executive Government, 
 and the other, to the functions bestowed on this Council by this 
 instrument. The first has relation to the limits or boundaries of 
 the Natal District. It will be observed that in the Letters Patent 
 no geographical description is given of the place. Her Majesty's 
 Government have, however, devoted great attention to this subject, 
 and it is His Excellency's intention, in to-morrow's Gazette, to 
 announce the boundaries by proclamation. Under these circum- 
 stances, the boundaries being determined, and a defined district 
 thus annexed, the next question arises in what position, in fact, 
 does it now stand with respect to the law under which persons 
 resident in it are supposed to live ? It will be observed from the 
 Letters Patent that Her Majesty, from a desire of avoiding the 
 necessity, or rather for excluding all chance, of forcing upon her 
 Natal subjects any system of laws or usages not suitable for
 
 41 6 ON NATAL BEING FORMED A SEPARATE PROVINCE. 
 
 their circumstances, has left it to this Council to legislate for 
 their peace, order, and good government, in such a manner 
 as to this Council may appear just and proper ; and for the 
 purpose of allowing this Council a clear stage an open 
 field Her Majesty has entirely removed any former system 
 of law which may be supposed to have followed her subjects to 
 Natal, and to exist there for their guidance and control. There 
 can be no doubt that a certain legal consequence, which Her 
 Majesty clearly foresaw, and has as clearly excluded, would have 
 followed a simple annexation, which would clearly have had the 
 effect of carrying into the new territory all the laws that existed 
 in the old. I believe this question was, in connection with 
 some bygone transactions, a good deal canvassed when Adelaide 
 was intended to have been made permanently a portion of this 
 Colony. I apprehend that the legal consequence of an unqualified 
 annexation would be to introduce the laws of the Colony, which 
 would at once flow into and over the territory annexed. Fore- 
 seeing this legal consequence, it has appeared to Her Majesty desir- 
 able, for the purpose of allowing only such laws to be extended to 
 Natal as the circumstances of Natal required, that this result 
 should be expressly and in terms excluded. Words have been 
 used, therefore, in these Letters Patent, by which that legal conse- 
 quence is expressly excluded. Here you have annexation with a 
 declaration that the annexation shall not have the effect which, 
 without that declaration, it would by law have produced. This 
 leads us to view the question in another light. It will appear that 
 after annexation all previous law is annihilated by this instru- 
 ment at Natal, and if no new law be introduced to fill the void 
 that district will be reduced to the anomalous and unfortunate 
 condition of a country totally destitute of any provision for the 
 repression or punishment of crime, or by which contracts and 
 dealings between man and man can be estimated. It is not 
 desirable that such a state of things should exist one moment 
 longer than it is in the power of the Council to prevent it, and in 
 order that we should not wait until those further laws and 
 ordinances are passed, which may be necessary to establish a court
 
 ON NATAL BEING FORMED A SEPARATE PROVINCE. 417 
 
 or courts, and make provision for what shall be the constitution 
 and proceedings therein and a number of other matters which will 
 need some time and labour it has been deemed expedient to 
 introduce at once a measure which shall carry to Natal a certain 
 body of law, without waiting the erection of the court or courts to 
 be charged with the execution of the law thus introduced. I have 
 therefore been instructed by the Governor to prepare the Ordi- 
 nance which I now lay on the table, and which, as it is a very 
 short one, and sufficiently, I trust, expresses its own meaning, I 
 shall read to the Council : 
 
 " Whereas it has pleased Her Majesty the Queen, by certain Letters 
 Parent, bearing date the 3 1st day of May, in the Seventh Year of 
 Her Reign, to annex to this Settlement of the Cape of Good Hope, 
 as a part or portion thereof, the district of Natal in South Africa : 
 And whereas by the said Letters Patent, it is amongst other things 
 provided that no law, custom, or usage in force within this Settle- 
 ment should, by virtue merely of the said Letters Patent, extend to 
 or become in force within the said District of Natal ; but that it 
 should be competent for the Legislature of this Settlement, subject 
 to the limitations, conditions, and provisions in the said Letters 
 Patent mentioned or referred to, to make, ordain, and establish all 
 such laws and ordinances as to them should seem meet for the 
 peace, order, and good government of the said District of Natal : 
 And whereas His Excellency the Governor has signified his in- 
 tention forthwith to declare, by a proclamation to be by him issued 
 in virtue of certain authority in that behalf in him vested, the 
 limits or boundaries of the said District of Natal, and to define the 
 territory or territories which shall constitute the said District : 
 And whereas it is expedient, without awaiting the legislative 
 establishment within the said District of the court or courts for 
 the administration of justice, which is, or are now, about to be 
 created, to make provision for the establishment of such laws as are 
 immediately and indispensably required for the preservation, in the 
 meantime, of peace and good order, and the repression of violence, 
 injury, and injustice amongst all persons resident in the said 
 District : Be it therefore enacted by the Governor of the Cape
 
 41 8 ON NATAL BEING FORMED A SEPARATE PROVINCE. 
 
 of Good Hope, with the advice and consent of the Legislative 
 Council thereof, that the system, code, or body of law commonly 
 called the Roman-Dutch Law, as the same has been and is ac- 
 cepted and administered by the legal tribunals of the Colony of the 
 Cape of Good Hope, shall be, and the same is hereby, established 
 as the law, for the time being, of the District of Natal (as the said 
 District shall, from time to time, be limited and denned by or on 
 behalf of Her Majesty the Queen), and of Her Majesty's subjects, 
 and all others residing and being within the said District : Provided, 
 however, that nothing herein contained shall be deemed or taken 
 to establish within the said District any law or ordinance here- 
 tofore at any time made or passed in this Colony, by or through the 
 Local Government or Legislature thereof, or to give any existing 
 Court or Magistrate of the said Colony any authority or juris- 
 diction over or in regard to the said District, or to prevent the said 
 system, code, or body of law from being hereafter added to, or 
 altered, in regard to the said District, by any competent authority." 
 The effect of this, it will be perceived by the Council, is to intro- 
 duce that body of civil and criminal law under which the inhabi- 
 tants of this Colony generally live. Local ordinances which have 
 from time to time been made, both by the Dutch and English 
 Government, are not introduced ; it being the intention of Her 
 Majesty that these laws, so far as they are applicable, shall be made 
 applicable to that particular machinery which may exist at Natal, 
 and without which it would be exceedingly difficult to introduce 
 them in a body, or as I should say, in the lump. Considerable 
 care will be needed to alter such local ordinances as shall be intro- 
 duced in such a manner as to suit them to a different mode of 
 operation from that which prevails here. Those things must come 
 hereafter, but this Ordinance introduces the criminal and civil law, 
 as respects crimes and punishments, as well as the contracts and 
 dealings of private parties ; and with this, Natal can easily exist 
 for the short period that will elapse before the other laws required 
 for the good government of Natal shall be furnished by this. 
 Council. With regard to crimes, we must do something more 
 than introduce a law for punishing them hereafter. Before a court
 
 ON NATAL BEING FORMED A SEPARATE PROVINCE. 4.19 
 
 can be established crimes may be committed, and the criminals 
 escape, and therefore I have thought it necessary to frame a second 
 section to guard against that contingency : 
 
 "And be it enacted, that it shall and may be lawful for the 
 Governor aforesaid to address to any one or more of Her 
 Majesty's subjects residing within the said District one or more 
 commission or commissioners, authorising him or them to exercise 
 within such District the office of a magistrate, for the purpose of pre- 
 venting the perpetration therein of any crimes and offences punish- 
 able by law, and for the purpose of arresting and committing to 
 custody for trial before the certain court or courts now about to be 
 established within the said District any person or persons 
 charged, on sufficient evidence, with the commission of any 
 crimes or offences within the said District : Provided always that 
 every such commission shall be revocable at pleasure ; and provided 
 al. c o, that any person committed for trial by any such magistrate, 
 who shall not be brought to trial within six months from the date 
 of his commitment, shall at the expiration of such term of six 
 months be discharged from custody, upon entering into his own 
 recognizance, conditioned in such sum as shall appear just and 
 reasonable, to appear before any such court or courts as aforesaid, when 
 duly summoned so to do, there to answer to any such charge as 
 may be preferred against him. And be it enacted, that this 
 Ordinance shall commence and take effect from and after the date 
 of the promulgation thereof." . 
 
 In this case, therefore, it will be the duty of the Executive Govern- 
 ment to create such a magistracy as may prevent crime, and apprehend 
 criminals, and commit for trial before the Court about to be esta- 
 blished. In order that, in a place where there is as yet no writ of 
 Habeas Corpus, or, at all events, no court to issue it, parties arrested 
 should not be detained for an unreasonable length of time in custody, it 
 is provided that if not brought to trial within six months they shall be 
 discharged upon their own recognizance ; but it is contemplated that 
 the judicial system of the District will be in operation in ample time to 
 avoid all inconvenience. It only remains that I should state my view 
 as to the course which should be taken with this Ordinance. I 
 
 EE 2
 
 /J.2O ON NATAL BEING FORMED A SEPARATE PROVINCE. 
 
 should certainly have wished that, for reasons which will be ob- 
 vious from what I have already said, this Ordinance might have 
 appeared in to-morrow's Gazette, together with the proclamation 
 fixing the limits of Natal, and the Letters Patent, that with the 
 first public announcement of the vacuum regarding law which the 
 two latter instruments create, there should also have been 
 announced the mode in which that vacuum is to be filled. But 
 on account of a certain difficulty which may possibly exist, and 
 which I shall now state, I consider it more expedient to recom- 
 mend the Council to read the ordinance a first time to-day, 
 publish it to-morrow, and then meet again on some early day next 
 week tor the purpose of putting it through some of its further 
 stages. The difficulty to which I have alluded regards the necessity 
 or non-necessity of a promulgation by the Governor of these Letters 
 Patent, previously to their obtaining force. I am myself of opinion 
 that such previous promulgation is not necessary. Whatever, under 
 the Roman Dutch jurisprudence, may be the necessity of previous 
 promulgation in order to make laws obligatory, a point on which 
 I offer no opinion, I do not regard Letters Patent annexing territory 
 as laws. I am aware of no definition of a law under which such 
 instruments could come, and it appears to me that, without specu- 
 lating as to the particular time from which rhese Letters took or are 
 to take effect, whether from their date, or from some subse- 
 quent period, no publication in the Gazette is necessary for the 
 purpose. If, however, the opposite principle be the sound one, we 
 could not regularly pass this Ordinance to-day, since it is by the 
 Letters Patent that we receive the power to pass it, and since the 
 Letters Patent are not yet published, I am, as I have said, of 
 opinion that we have now the power to pass this Ordinance. But 
 seeing that the difference of a week will not be of any practical 
 importance in this case, considering the nature of our posts to 
 Natal, and that it will be as well for the Council to take a day or 
 two to consider the provisions of this Bill, I should advise, in order 
 to keep clear of all doubt, that we should now read it a first time, 
 and, if approved of, pass it next week in time for that week's 
 Gazette. I am not aware that any further observations are required
 
 ON THE FRONTIER. 42! 
 
 for the purpose of explaining this short Ordinance, and I now beg 
 to move that it be read a first time. 
 
 ON THE FRONTIER. 
 
 [Legislative Council, October 2, 1845.] 
 
 The ATTORNEY-GENERAL said : I have really felt, Sir, during the 
 time my hon. friend was addressing the Council, considerable 
 doubt whether it would be right or proper for me to touch, upon 
 the present occasion, this wayward subject of our Frontier policy. 
 t have now in my own mind determined that it is right and proper 
 so to do. That determination has not been governed by any feel- 
 ing that the clear and able statement of my hon. friend re- 
 quires any supplement. He has gone fully and fairly through the 
 petitions which have been presented, and the allegations which 
 they contain ; and stated his reasons for believing that certain of 
 those allegations are either groundless, or overstated, and that the 
 petitions, in their general tone and bearing, do not convey an ac- 
 curate idea of the existing state of things. But notwithstanding the 
 completeness of my hon. friend's address, and the fact that no 
 unofficial member has deemed it necessary to continue the discussion 
 of the question, I have thought it well to give expression to my 
 sentiments upon the subject, because I know that an impression 
 prevails upon the Frontier that, with the members of the Govern- 
 ment, these matters do not meet with the consideration which they 
 merit It may be supposed, indeed it has been often said, that as 
 the Frontier is not represented in this Council by any unofficial 
 member territorially connected with it, the state of the Frontier 
 is not sufficiently understood or pressed upon the notice of the 
 Executive ; and I am the more anxious, as a member of Your 
 Excellency's Council, and one who has given his best consideration to 
 the subject, to state for myself the conclusions at which I have
 
 422 ON THE FRONTIER. 
 
 arrived, and the reasons which have led me to them. But this 
 Sir, is not all. I cannot but feel that the able, and beyond all 
 parallel and precedent, dispassionate speech of the Secretary to 
 Government, will not, when reported, give satisfaction on the 
 Frontier. When men's minds are heated beyond a healthy state, the 
 utterance of impartial truth never gives satisfaction. My hon. 
 friend, speaking with great care and caution, and the most sincer e 
 desire to avoid giving offence, will yet, I am certain, give offence. 
 He has, I believe, delivered an unpopular speech, and believing that 
 he has done so, I deem it right to follow him in the course that he 
 has taken, and to claim my share of whatever unpopularity may 
 attend the announcement of principles and sentiments in which we 
 are cordially agreed. Sir, although my career in this Colony has not 
 yet been a long one, it has yet approached a period of seven years, 
 and during that time I have not been entirely neglectful of the 
 opportunities which occurred of informing myself respecting the 
 past history and present state of our Frontier relations ; and I set 
 out by declaring my conviction, a conviction formed after an at~ 
 tentive reading of documents laid before Parliament, and such othe r 
 authentic sources of information as have come m y way, that at no 
 former period in the history of this Colony, from the day of Van 
 Riebeck's landing to this present moment, were our Frontier rela- 
 tions, comparatively speaking, so comfortable as at present ; that 
 never did our colonists suffer so little from native tribes beyond 
 their boundary as they do at this very time. Now, don't misunder- 
 stand me. Let me guard my self against being supposed to think 
 or say, that evils, and serious evils, do not now exist. 1 at once 
 and unhesitatingly admit that such evils do exist. But it is a pecu- 
 liarity of this case, and of all such cases, that you cannot call in 
 question any statements regarding those evils, however groundless 
 or overdrawn, without being liable to be held up as disregarding 
 the evils which you attempt to reduce. Mr. Canning, somewhere 
 refers to this sort of thing, which may be called the fallacy of 
 exaggeration. " A declaimer asserts," says he, " that a hundred 
 men were cruelly cut down at Manchester. ' Oh no,' you say, ' not 
 a hundred, only ten.' ' Listen to the monster/ cries the other
 
 ON THE FRONTIER. 423 
 
 'only ten! the cutting down often men is then, it seems, a matter 
 of no moment ! " I look at these petitions, and I see that, in one 
 place, the condition of the Frontier colonist is described as " un- 
 bearable," and that, in another place, their sufferings are called 
 " frightful ; " and when I say, in reference to these strong terms, that 
 their condition is not altogether unbearable, and that frightful is much 
 too strong a word, that the depredations are not so and so, but only 
 so and so, lam set down as disregarding the complaints of Her Majesty's 
 subjects, and as wholly wanting in sympathy for their situation. Sir, 
 so far as their complaints are just and reasonable, they have my 
 fullest sympathy. They have my sympathy the more, because I 
 know that, whatever may have been the case in past times, our 
 Frontier colonists, considered as a body, nay, even considered in- 
 dividually, are now, and long have been, guiltless of provoking by 
 aggression the aggressions from which they suffer. And without 
 admitting the correctness of strong statements, and while allowing 
 much for colouring in the glowing pictures- of distress which are 
 from time to time presented, I do not hesitate to say, with the 
 Secretary to Government, that, when every deduction has been 
 made, and the evil is brought down to its true magnitude, it is one 
 of a nature calculated seriously to retard the prosperity of the Fron ; 
 tier. But retarded prosperity is not utter ruin. That the condition 
 of the Frontier is unbearable and frightful, I never can believe, so 
 long as I have it demonstrated, not by set speeches, which aim at 
 effect, not by words, which are wind, but by the convincing 
 logic of selling and buying, by the prices which men ask and 
 which men give, that the value of property in the quarters in 
 which these depredations prevail, instead of sinking, has risen, 
 and is rising, and allowance being made for fluctuations in the 
 money market, never stood so high as it does now. Will any 
 respectable man come forward and deny that the prices of land 
 have risen in the face of the Kafirs and their depredations ? Will 
 any man deny that farms on the immediate frontier which, fifteen 
 or twenty years ago, were purchased for a trifle too small, almost, 
 to be reckoned as a valuable consideration, can now be sold for a 
 consideration large enough to justify, in the fullest sense, the use of
 
 424 ON THE FRONTIER. 
 
 the term valuable ? Sir, 1 once before made in this Council a 
 similar remark. What I then said, wafted by the wings of the 
 press, went to the Frontier. There, it attracted the notice of a 
 speaker at a public meeting, I think Mr. Godlonton, the respect- 
 able proprietor of the Graham's Town Journal. Did he deny the 
 fact ? Sir, if my memory serves me, he did not deny it. But tacitly 
 admitting, as it seemed to me, the existence of the fact, he said 
 that I drew from it an erroneous inference, not making sufficient 
 allowance for that indomitable spirit of energy and enterprize in 
 British settlers, to which alone the fact was to be traced. Come it 
 however from what cause it may, property on the Frontier has 
 steadily advanced in value. There are two ways of accounting 
 for it ; one by alleging that British settlers are so enterprizing and 
 energetic as to outbid each other for farms worse than worth- 
 less, and that they have an abstract fondness for rushing upon 
 ruin ; and the other a very plain, prosaic way, I admit, 
 by alleging that, bad as matters are, they might be worse : that in 
 the face of Kafir depredations men live and thrive, and that the 
 article which is purchased is after all just and fair allowances 
 worth the money. In truth, Sir, I hardly think that it is the actual 
 value of the cattle stolen considerable though that be which 
 constitutes the chief grievance of these cattle thefts. A man might 
 lose twice as much in another way, without feeling half the annoy- 
 ance. It is inconceivably provoking, when you get up in the morn- 
 ing, to find your horse gone, or some cattle, of perhaps superior 
 breed, to which you attached great importance. If they had been 
 lost by sickness, or ordinary accident, or the action of the elements, 
 you could keep your temper. But to have them hunted off into 
 Kafirland by thieves, is perhaps of all modes of loss the most irri- 
 tating ; and I am therefore not at all surprised that men, smarting 
 under such irritation, make speeches, and vote resolutions, and draw 
 up petitions, which require other men, whose duty it is to adopt 
 practical measures, to make large allowances for the excitement 
 under which the complainants labour. Are matters so bad as these 
 petitions say ? By no means. Taking the Colonial Border as a 
 whole, am I wrong in stating that, within a period of twenty
 
 ON THE FRONTIER. 425 
 
 or thirty years, the part of the Border most disastrous to the 
 Colonists was not the Kafir Border ; I could lay my hand upon* 
 and, if necessary, produce, the best authority for saying that a 
 marked distinction had been at all times observable between the incur 
 sions of the predatory Bushman Tribes into Clanwilliam, Beaufort, 
 Graaff-Reinet, and the incursions of the predatory Kafir Tribes, 
 with which we came in contact at a comparatively recent period of 
 Colonial history ; that distinction being that, whereas the former, 
 then in considerable numbers, were accustomed to butcher whole- 
 sale the Colonists and their families, sparing neither sex nor age 
 before driving off the booty, the latter from the first came but for 
 cattle, and that obtained, evinced no thirst for blood. The Kafir 
 Frontier was, in those days, considered comparatively safe. How is 
 it now with that por tion of our Frontier which was of old the worse ? 
 Why, owing to a combination of circu mstances which I need not 
 pause to specify, and in no small degree to the acts of the Griquas 
 in breaking and destroying (cruelly and for their own purposes, I 
 admit) the Bushman hordes, a sense of security exists all along 
 that boundary which formerly was beset with the most formidable 
 dangers, and all our solicitude is now concentrated upon the 
 Eastern Border, where the aggressions of the Kafir continue to> 
 retain their original character ; for although extremely provoking, 
 and not a little destructive, the Kafir comes now, as he has always 
 come, for cattle, and having secured these, he is not anxious to dip 
 his hands in blood. It will be no answer to this to say, "Do you 
 forget that De Lange was shot, and that several others have been 
 shot at ? " I admit this. But my recollection corresponds with that 
 of the Secretary to Government, and I call to mind no instance in 
 which the Kafirs have fired until first fired upon ; and it is by no 
 means in every instance that they have returned the shot. My hon. 
 friend, in speaking upon this point, while making the most liberal 
 allowance for the colonists who first fired, let fall something to the 
 effect that their so firing was illegal. I may mention to my hon- 
 friend and the Council, in order to avoid misapprehension, that 
 whether the colonists were or were not justifiable, in point of law, 
 would depend upon the particular circumstances of the case. Any
 
 426 ON THE FRONTIER. 
 
 person who, upon fresh pursuit comes up with a cattle stealer, may, 
 by law, shoot the cattle stealer, provided he cannot by any other 
 means be secured and made answerable to justice. In all such cases 
 the jury question is, whether any other means did, in fact, exist ; and 
 my hon. friend does not, nor do I either, mean to say, or to in- 
 sinuate, that in any instance in which colonists have fired upon and 
 killed Kafir depredators, they were not fully justified in so doing 
 by the circumstances of the case. All we mean to say is this, that 
 when a Kafir, who never heard of Ordinance No. 2, 1837, and 
 who is attempting to escape, finds the bullets of his pursuers 
 whistling about his ears, his falling back upon his rude notions 
 of self-defence, and his natural desire of self-preservation, would 
 scarcely justify us in saying that his firing upon those who first 
 fired upon him is, in a moral sense, bloodthirsty or malicious. Sir, 
 the general principle of the new treaties and of Your Excellency's 
 policy in relation to the Kafirs, have been so fully entered into 
 by my hon. friend, that I shall not follow him. Were I to do so 
 I should, I am certain, only do ill what he has done well. But 
 there is, I think, an observation which I am entitled to make. 
 I am entitled to say to anyone who objects, " If you do not like 
 the system, give a better !" Mr. Cockle, who mak es the celebrated 
 pills, quotes Horace in recommending them, and for general con- 
 venience translates him too : "If you know any better pills than 
 these," he says, " candidly inform me ; if not, use these with me." 
 So says Mr. Cockle after Horace, and so he sells his pills. Now 
 where are we informed of the better policy for the Kafirs ? It may 
 be answered, you have it in the petitions presented to the Council. 
 Let us see, then, the prayer of the first petition, I mean that presented 
 by my hon. friend on my left (Mr. Ebden). It involves two par- 
 ticular points, and only two ; one to remove the seat of Government 
 to the Frontier, and the other to give Government a monopoly of 
 gunpowder. Behold the mystery of a sound Frontier policy ! 
 Behold the way in which Kafir depredators are to be put down ! 
 And my hon. friend, in presenting this petition, took especial care 
 to guard himself against being supposed to concur with the pe- 
 titioners. Am I blaming him for this ? Not so. It was due to
 
 ON THE FRONTIER. 427 
 
 himself, to his character, to his position in the Colony and in this 
 Council, not to leave his sentiments undisclosed. But the result 
 is curious. For here is my hon. friend recommending a petition 
 to the most serious consideration of Your Excellency and the Council 
 but saying at the same time, " Let me not be understood as advocat- 
 ing a removal of the seat of Government or a monopoly in gun- 
 powder ;" when, upon looking into the petition which we arc 
 seriously to consider, we find that it suggests merely the very two 
 points which my hon. friend considers to be mistaken. Now I 
 mean to offer to these petitioners no sort of disrespect. But I 
 must say that when they present a petition suggesting measures 
 which not even the member who presents it can support, I cannot 
 entertain a very exalted opinion of their political wisdom ; and 
 while I sympathize with their feelings, I entertain no admiration 
 whatever of their judgment. The removal of the seat of Govern- 
 ment is certainly a weighty question. With my hon. friend, I am 
 against it. But I speak of it with respect, because it is a project, 
 which, at one time, was recommended by the eminent man who 
 then held this Government, Sir Benjamin D'Urban, and nothing 
 which such a man considered expedient could be dismissed by me 
 without much consideration ; because 1 would rather conclude 
 that I had overlooked some good reason, than that he had come to 
 a wrong conclusion. For practical purposes, however, it is enough 
 to say that we could not change the seat of Government even if we 
 would. But I will go further, and say, that if Your Excellency 
 and all the other people who hear me were now sitting in a room 
 in Uitenhage, I entertain great doubts whether a single ox or 
 horse the less would be lost to-day in Albany. Next, the petitioners 
 pray the Government to take a monopoly in gunpowder. The history 
 of gunpowder legislation in this Colony is avery simple one. The Dutch 
 Government was a paternal Government, and if it often used the rod 
 as not hating the child, it was only so much the more paternal ; and, 
 therefore, as in duty bound, the Dutch Government asserted an 
 absolute monopoly. Lord Macartney, in 1797, opened the trade, 
 but opened it, so to speak, only with half a hand. The Gunpowder 
 Ordinance of 1833, passed by Lieutenant-Governor Colonel Wade,
 
 4*8 ON THE FRONTIER. 
 
 went farther, but it imposed heavy duties. While this Ordinance 
 was in the Colonial Office, under the consideration of Mr. Secretary 
 Spring Rice, the Cape Trade Society of London, by their chairman, 
 my excellent friend Mr. Abraham Borradaile, who has just left the 
 Colony, presented a memorial against the heaviness of the impost. 
 They pointed out the utter absurdity of supposing that, upon such 
 a coast, with the Portuguese Settlement of DeJagoa Bay, and 
 American vessels constantly on the watch, gunpowder could be 
 kept from any native tribes who had the desire and the means to, 
 buy it. These reasons weighed with the Secretary of State. 
 Colonel Wade's Ordinance was disallowed, and one of the first 
 acts of Sir Benjamin D'Urban was, to pass another Ordinance 
 of the same nature, but with considerably lower duties. The 
 whole history of this gunpowder legislation, and the nature of 
 the thing, lead me irresistibly to the conclusion that there 
 never was a more frantic notion entertained than that of retracing 
 our steps in that direction, of again undoing all that has been 
 done, of going back to darkness from the light, of setting up a 
 miserable monopoly of gunpowder as a protection against Kafir 
 depredations. As I imagine that there is no difference of opinion 
 upon the point, I quit the first petition, and come to the second. 
 This speaks first of an effective police. This subject has been 
 adverted to by my hon. friend, the Secretary to Government. It 
 was never intended that the disbanding of the Kafir police should 
 leave the Frontier without an effective substitute, say, the Cape 
 Corps, or some other body and the new treaties, as Your 
 Excellency kindly reminds me, are framed so as to leave room 
 for the introduction of whatever force maybe deemed most service- 
 able. Next, the petitioners desire the appointment of an Agent- 
 General. Sir, an Agent-General has been appointed, whose talents, 
 character, and station, warrant me in anticipating that in the 
 discharge of the important duties entrusted to him, he will not 
 disappoint the reasonable expectations either of Your Excellency 
 or the Colony. In the third and last place, the petitioners ask for 
 the Court of Appeal. My hon. friend has given its history. 
 Your Excellency will be misunderstood if it is supposed that you
 
 ON THE FRONTIER. 429 
 
 have truckled, upon this point, to the Gaika Chiefs. It is true 
 that they objected to the Court of Appeal, declaring their preference 
 of the usual quarterly meetings. They had a right to do this. Your 
 Excellency proposed a treaty to them, and it would be to " keep 
 the word of promise to the ear and break it to the hope," if you were, 
 after proposing what purported to be a treaty, to force upon them, 
 against their will, a condition such as this. The object was not 
 of sufficient moment to require to be forced. It never struck me, 
 and I believe it never struck Your Excellency, that the Court of 
 Appeal was an essential part of your system, and I do not hesitate 
 to state my opinion that by the assistance and advice of the Agent- 
 General, -part of whose duty it should be to attend as much as 
 possible the sittings of the several Resident Agents, such a degree 
 of intelligence, uniformity, and public confidence, will speedily 
 distinguish the Courts of the Resident Agents, that no desire for a 
 formal Court of Appeal will exist on either side the boundary ; it being, 
 I think, very obvious that upon the hearing of such cases, an efficient 
 Court should be empowered to pronounce final judgment, since 
 much of the evidence is of a perishable nature, and since no 
 machinery for appeal can ever compensate for defective Courts of 
 first instance. Look at the treaties for the suppression of the Slave 
 Trade. Property to an immense amount is sometimes under adjudi- 
 cation in the Mixed Commission Courts. But the High Contract- 
 ing Parties give no appeal ; content with doing what is far better, 
 giving efficient Courts for final judgment. I have now gone over 
 the several matters which are referred to in these two petitions ; 
 and the Council will, I think, be of opinion that, except when 
 they refer to steps which are either contemplated or actually taken, 
 they contain nothing which can conduce to the improvement of our 
 Frontier policy. Do the petitioners ask more ? Do they ask Your 
 Excellency to give their concerns your attention ? The Secretary to 
 Government has spoken of this. Early and late Your Excellency 
 has given your best attention to these concerns, assisted by your 
 Executive Council, so far as they were able to assist you. Nothing 
 connected with your Government has occasioned you, so fir as I 
 can form an opinion, half so much solicitude. If Sir Robert Peel's
 
 43 ON THE FRONTIER. 
 
 difficulty was Ireland, Your Excellency's difficulty has been the 
 Frontier. Things in that quarter are not yet as you would wish, 
 but they are improving, and I am sure you will omit no means 
 in your power of bettering them still more. Declamation and de- 
 nunciation will do no good. Evils by the score may be readily 
 pointed out, nothing is more easy ; but for a practicable plan, and 
 a plan which shall be proper as well as practicable, where are we to 
 look ? If we look back to the beginning of our Colonial system, what 
 do we see ? Why we see the old Commandos. Do I name 
 them to defame the character of the Colony, or to say, as has been 
 said, that the Commando System was a deliberate plan for plunder- 
 ing others under the pretence of being robbed ourselves ? By na 
 means. The Commando System was a necessity of the time. It 
 was a hard, but as matters stood, the only, remedy. Doubtless it 
 was often abused, because there will always be bad men to abuse 
 every system, and because the Commando System was one particu- 
 larly open to abuse. But I have not yet seen the evidence to prove 
 that, as a system, it was not acted upon bona fide for the redress of 
 what were considered injuries. Is it, therefore, a system to DC re- 
 stored ? No. It was the child of anarchy, and it aggravated the evil 
 from which it sprang. Without any other means of ob- 
 taining compensation, and as regarded the Bushman hordes, 
 without chiefs with whom arrangements for compensation could be 
 made, it was but natural to track, as well as might be, the plun- 
 dering party, to retake from them, or others, the value of the loss, 
 and by the exercise of terrible severity, to deter from a repetition 
 of aggression. But the Commando System, in its best estate, con- 
 founded the innocent with the guilty, entrusted a most delicate 
 duty to a class of people who could not be expected to discharge 
 it temperately, created a universal feeling of hostility on every side, 
 and inevitably precipitated consequences which must, in regard to 
 such a people as the Kafirs, lead to a general war. This I hold to 
 be clear ; for light does not more surely follow the rising of the sun 
 than must a Kafir war follow a restoration of the Commando Sys- 
 tem. But some men will say, " Let us have a war." Is this, then, 
 a small thing ? My hon. and learned friend (Mr. Cloetc) spoke but
 
 ON THE FRONTIER. 431 
 
 shortly in reference to the petition which he presented, thinking, 
 probably, that situated as he is, already virtually a judicial officer, 
 though still nominally vested with legislative functions, it is not 
 desirable for him to enter into these questions as he might otherwise 
 have done ; and I quite understand and approve of the delicacy of 
 such a course. But my hon. and learned friend was at liberty to 
 observe that the present generation had seen three Kafir wars. 
 Who are they that will take the responsibility of bringing on a 
 fourth ? Two of the byegone wars I shall not speak of. What 
 were the consequences, to the Colony, of the last ? How many 
 horses were then lost ? 5,438. How many head of cattle ? 111,418 
 How many sheep? 156,878. How many houses destroyed ? 455 
 The number of killed was comparatively small, but still 
 about 100 men, soldiers and civilians, lost their lives. And 
 who can measure the amount of suffering which was entailed 
 when 7,000 of our people were reduced from competence to destitu- 
 tion, and seen flying, like hunted sheep, seeking for shelter and protec- 
 tion ? These things the Kafir war cost the Colony ; and it must 
 besides, have cost the mother country not less than some half 
 million of money. With this experience before me, I cannot bring 
 myself to talk lightly of a war. I wish from my heart, that 
 speakers at public meetings on the Frontier, when they talk about 
 it, would weigh iheir words a little better. One of the resolutions 
 on which a petition before the Council was founded, calls Kafirland 
 a " mine," and speaks, I think, of a single spark thrown into it as 
 likely to cause explosion. Similes should be kept for speeches, and 
 resolutions are no place for figurative language ; but if Kafirland be 
 the mine it is represented, should not the speakers I refer to be 
 very careful how they throw into it their inflammatory rhetoric ? 
 No doubt, in the last war the sufferings were not all colonial. But 
 was it any comfort to us that the Kafirs were at length chastised ? 
 that 4,000 fighting men of theirs were killed, that 60,000 head or 
 catile were taken from them, that their gardens and their corn lands 
 were utterly destroyed ? None. None. None. And no man ever 
 felt this more than the humane and distinguished officer whose 
 public duty it became to protect the people under his Government
 
 432 ON THE FRONTIER 
 
 from what he conscientiously considered, and I think in the main, 
 not unjustly considered, an unprovoked aggression. I deprecate 
 another war ; and as an abrogation of the present system, and a 
 restoration of Commandos, would inevitably bring on another war, 
 I set my face against the change. 1 shall be told that my principles 
 are cowardly ; that I fear the Kafirs. This is not the case. I am not 
 afraid of the Kafirs. I hold it to be idle to imagine that, in the long 
 run, their undisciplined masses could resist the invincible might 
 of British troops, supported by the courage cf a colonial population 
 accustomed to conflictin the bush. But though not afraid of iheKafirs, 
 I am afraid of the human misery by which the ultima-e expulsion or 
 extermination of these people must be purchased. Sir, after all, it 
 is possible that this Colony may be forced into a Kafir war ; and if 
 so, that war, in my opinion, should be so conducted as to prove to 
 be the last. But never draw the sword until you have tried every 
 other means, and tried them to the utmost, and tried them in vain ; 
 never, until you have, by your forbearance, put the Kafir completely 
 in the wrong ; never, until matters are in such a state that no good 
 man can doubt the sad necessity under which you lie ; never draw 
 the sword, I say, so long as it can possibly be suffered to remain in 
 the scabbard, but when once you draw it, destroy. But it will be 
 said " Take in the territory. Put the Kafirs beyond the Keis- 
 kamma or leave them where they are, but at all events take in the 
 territory ; by this means only can you keep the Kafir from your 
 cattle." That such a measure would have the alleged effect, I 
 doubt. But waiving that, let me ask, what brought on the war of 
 1834? Was it not a question about territory? In 1780 the 
 boundary between the Colony and the Kafirs was, as now, the 
 Great Fish River. In 1819, Lord Charles Somerset carried forward 
 the boundary to the Keiskamma. The moral justifiableness of that 
 measure has been discussed ; but, for practical purposes, at the 
 present day, a dispute about it would be as idle as the dispute 
 between Don Quixote and another madman about Queen Made- 
 sima's chastity. But though, in 1819, the Keiskamma was pro- 
 claimed the boundary, the Kafirs still occupied the lands between 
 that River and the Fish River, which were called the Ceded
 
 ON THE FRONTIER. 
 
 433 
 
 Territory. In 1929, Maquomo was expelled from the Kat River, 
 where the Hottentot Settlement now is ; more lately, further 
 expulsions took place in the same neighbourhood, and I have what 
 I deem the best authority for thinking that these transactions, 
 though they might not justify, certainly produced the war of 183^. 
 Are the Kafirs chanjed ? Have they decreased in numbers? Are 
 they worse armed ? Have they at length lost, what the uncivilized 
 man loses last, their love of their lands ? Can you now do without a 
 war what produced a war in 1834 ? Sir, if any persons can main- 
 tain this, those persons are not the speakers at the late Frontier 
 meetings. While saying and doing everything apparently calcu- 
 lated to bring on a war, they represent at the same time the 
 powers of the Kafirs as most formidable, and tell Your Excellency 
 that you have not troops to meet them. If I could suppose these 
 gentlemen to be playing a game, I could understand them. By 
 exaggerating the depredations of the Kafirs, and the designs of the 
 Kafirs, and the powers of the Kafirs, a state of excitement is pro- 
 duced which must keep continually upon the Eastern Frontier a 
 large military expenditure. But I should not regard such policy 
 as an honest policy ; and I should therefore be slow to ascribe it 
 to any individual, a hesitation which one of the late speakers did not 
 feel in regard to Graham's Town, which he exhorted to forsake 
 the flesh pots of Egypt, and take its eyes off the military 
 chest and the mission chest. I am not to attribute motives. 
 But I am to say this, that persons who call upon Your 
 Excellency to take decided measures, and tell you, in the 
 same breath, that you have not force enough to meet the enemy 
 which those decided measures will provoke, do not, as it appears, 
 to me, materially assist Your Excellency in the management of 
 your Frontier policy. Sir, I have said almost all that it occurs to 
 me to say upon this subject. I have spoke freely, as was my duty 
 but I hope without offence. The remonstrances of our Frontier 
 Colonists are not unheard. In one of their resolutions they deplore 
 a want of education and literature, which has prevented their rights 
 from being properly advocated. I doubt whether any class of 
 people enjoy, in a higher degree of development, the faculty of 
 
 FF
 
 434 
 
 ON THE FRONTIER. 
 
 utterance, or contrive to make their complaints be heard more 
 clearly, than her Majesty's subjects upon the Eastern Frontier of 
 this Colony. The extension of the Colony in that direction is a 
 cherished notion. But let those who cherish it reflect how each 
 advance of boundary has brought us into contact with new neigh- 
 bours, not less annoying than the old ; how, with Hottentot's 
 Holland as our limit, we had plunderers beyond ; how it was the 
 same with Gamtoos, and with the Fish River ; and let them consider 
 whether, beyond the Keiskamma, or the Kei, we should not still 
 find plunderers ready to create, by their depredations, the assumed 
 necessity of another movement. I admit that the Fish River is a 
 worse natural boundary than the Keiskamma. But if you conceive 
 of the necessity of a war, and of the certainty that all the turbulence 
 of Kafirland would, after that war, be found raging upon the other 
 side of your new Frontier, you will doubt whether the moral dis- 
 advantages would not outweigh the physical advantages of the 
 Keiskamma as compared with the Fish. And if I further say, that 
 you could not now, morally speaking, justify such a measure of 
 expulsion or extension, let it not be thought that I am run away 
 with by a false philanthropy, or have formed a romantic estimate 
 of the Kafir character. For myself, Sir, I am bound to say, that I 
 have formed a very humble estimate of the Kafir character. I do 
 not, in these times, look for moral miracles, any more than physical. 
 It were to disparage Christianity and civilization to believe, as some 
 amiable people have believed, that any tribe or nation to whom the 
 blessings of both are comparatively unknown, could exhibit a 
 moral character to be contemplated with pleasure. I believe that 
 both Kafirs and Colonists are, to no small extent, the creatures of 
 t he circumstances by which they are surrounded ; and I therefore 
 consider that, placed as this Colony is, it is by Christianising 
 and civilizing the Kafirs, by religiously respecting our own 
 engagements, by a judicious admixture of firmness and forbearance, 
 reward and punishment, by encouraging the well disposed, 
 and strengthening their hands against the mischievous, and 
 by gradually cultivating amongst them the notion of moral obliga- 
 tion, that it is by such things more than by Commandos,
 
 ON THE FRONTIER. 435 
 
 more than by seizing land, more than by military force, that 
 the ultimate safety of the Frontier farmers is to be secured. I 
 believe that these are sentiments in which the wisest and best men on 
 the Frontier will concur. But there seems to be a small knot of men 
 there who will be prepared to treat such sentiments with scorn. I 
 dislike general insinuations. I name a man. Sir, I have been shocked 
 toy sentiments which Mr. Bowker, upon two occasions, has not been 
 ashamed to utter. Can we forget his famous springbok speech ? 
 The man had been reading Tom Carlyle, and, not understanding 
 that writer's grotesque Germanic manner of torturing common 
 places into paradoxes, he thinks that he also has a fine- thing to say, 
 and out he comes with an elaborated passage which contains a 
 principle that, reduced to action, would produce atrocities in com- 
 parison with which all that Alva ever did in the Netherlands, all that 
 Dundee ever did in Scotland, all that Pizarro ever did in Peru, 
 would be but merciful. " We have seen the graceful springbok," 
 he says (I am conscious that I forget the eloquence, but I recollect 
 the sentiment), " vanish before the useful sheep, and I, who like 
 the picturesque, might almost regret the change ; but that the 
 savage Kafir should be made to sink before, and thus leave room 
 for, the industrious European, could occasion me no feeling except 
 pleasure." Now this profound contempt of colour, and lofty pride 
 of caste, contains within it the concentrated essence and active 
 principle of all the tyranny and oppression which white has ever 
 exercised over black. Mr. Bowker, however, is not alone. A 
 member of the British House of Commons, in one of the New 
 Zealand debates, has lately said that the brown man is des- 
 tined everywhere to disappear before the white man, and that 
 such is the law of nature. It is too true that an induction o{ 
 historical instances would seem to justify this theory. The history 
 of colonization is the record of the dark man's disappearance 
 " But," to use Lord Plunket's well known language, " history un- 
 enlightened by philosophy is no better than an old almanac." And 
 while it is indisputable that the contact of civilization of a certain 
 grade with men uncivilized, has been, and must always be, destruc- 
 tion to the latter, it is yet to be tried whether civilization of a 
 
 FF 2
 
 4.36 ON THE ADMINISTRATION OF JUSTICE. 
 
 higher order, civilization in comparison with which the so-called 
 civilization of former times was itself uncivilized, is not destined to 
 reverse the previous process, and to prove that the tendency of true 
 civilization is not to destroy but to preserve ; and, surely, if this 
 problem still waits for its solution, by no nation so fitly as by 
 England can this great experiment be made. Sir, I have spoken 
 much more than I anticipated. If I have spoken warmly, I have 
 merely warmed with the subject, but not with individuals. I say 
 once again, that I admit the existence of serious evils on the Frontier, 
 and sympathize with those who suffer them. But I must still be- 
 lieve that however bad things may be, they are in a course of pro- 
 gress to what is better, and not to what is worse ; that what are 
 sometimes prescribed as cures would but aggravate the disease ; that 
 the present policy is, in its great principles, the best policy for our 
 people. My advice, therefore, here and elsewhere, to Your Ex 
 cellency is, to avoid extremities as long as you can properly avoid 
 them ; to bear in mind that all improvement is necessarily the work 
 of time ; to give your policy a fair and full trial, and not to be dis- 
 couraged because it cannot achieve impossibilities ; but at the same 
 time to cause the chiefs to understand that forbearance has, after 
 all, its limits, that bad faith will in the end surely meet its punish- 
 ment, and that you will know how to act if, at length, they force 
 the alternative to be, whether they are to behave themselves or be 
 destroyed. 
 
 ON THE ADMINISTRATION OF JUSTICE. 
 
 DRAFT COMMITTEE REPORT DRAWN BY MR. PORTER 
 AND SUBMITTED BY HIM TO THE COUNCIL. 
 
 [Legislative Council, November 13, 1845.] 
 
 Mr. EBDEN : With Your Excellency's permission I would sug- 
 gest, in order that Your Excellency, the Council, and the public
 
 ON THE ADMINISTRATION OF JUSTICE. 437 
 
 may be in possession of the views of those members of the com- 
 mittee who differed from the report read, that my hon. and learned 
 friend, the Attorney-General, should now read the report agreed 
 to by the minority. 
 
 ATTORNEY-GENERAL : If Your Excellency and the Council have 
 no objection, I have none. I may mention that at the last meeting 
 of committee the hon. secretary laid on the table and moved the 
 adoption of the report just read ; in amendment whereof, I moved 
 that the following report should be adopted : 
 
 "In the discharge of the duty entrusted to them, your committee 
 proceeded to the examination of such witnesses as were deemed 
 most likely to afford useful information ; and the minutes of the 
 evidence taken, with an appendix containing much additional 
 matter, are submitted with this report. Upon a reference to those 
 annexures, it will be seen that your committee have examined the 
 three judges of the Supreme Court, six gentlemen who hold, or have 
 held, the office of resident magistrate, one clerk of the peace, two 
 advocates of the Supreme Court, and nine gentlemen engaged in 
 mercantile or professional pursuits ; and they have also had before 
 them a large number official or other returns connected with the 
 criminal and civil business of the Colony. 
 
 "As your committee, in stating with as much succinctness as the 
 subject will admit the conclusions at which they have arrived, wil' 
 not feel themselves called upon to discuss or advert to the opinions 
 of any particular witness by whom their inquiry has been assisted, 
 they desire in this place to record their sense of the value and im- 
 portance of much of the evidence obtained, and to recommend the 
 whole of it to deliberate and dispassionate consideration. 
 
 " The principles upon which all legislation regarding the 
 administration of justice ought to be based, seem tolerably clear. It 
 may be assumed, that every sound judicial system should aim at 
 three great ends : first, so to compose the courts of justice that 
 what they administer as justice shall really be such ; secondly, so 
 as to place the seats of justice, that justice shall, as much as may 
 be, be brought home to the inhabitants ; and, thirdly, so to fix the 
 cost of justice, that, upon the one hand, individuals shall not, by
 
 43 8 ON THE ADMINISTRATION OF JUSTICE. 
 
 fear of expense, be deterred from seeking it ; and upon the other 
 hand, that a judicial establishment, rendered unexpensive to in- 
 dividuals, shall not absorb an undue proportion of the general 
 revenue. Of these great ends, your committee are disposed to re- 
 gard the first as greatest. But none of them can, with propriety, 
 be pursued to the neglect of any other of them ; and the first, not- 
 withstanding its importance, must, to some extent, be modified by 
 the other two. Viewing, then, the present judicial system of the 
 Colony with reference to its adaptation to secure, in just propor- 
 tion, the distinct and often inconsistent ends enumerated, your com- 
 mittee are of opinion, that while it is susceptible of improvement, 
 its fundamental principles ought to be preserved. The charge 
 incurred for the judicial establishment unquestionably forms a very 
 large item in the expenditure of the Colony. But when we take 
 into consideration the extent of our territory, and the thinness of 
 our population, together with the fact that no part of the expense 
 in question is, or in all probability for some time to come can be, 
 provided for by local assessment, it will not appear surprising that the 
 burden imposed upon the general revenue should be heavy. It is pre- 
 sumed that no one who duly estimates the importance of an efficient ad- 
 ministration of justice, and the causes which, in this Colony, conspire to- 
 make such an administration of justice expensive, will be disposed 
 to reduce, as disproportionate, the amount now devoted to that 
 object. It appears to your committee that your endeavours should 
 be directed, not to lessen the annual charge of the judicial establish- 
 ment, but to devise, if possible, the means of making that establish- 
 ment more efficient. 
 
 " Entertaining views generally favourable to the present system in 
 its fundamental principles, your committee are indisposed towards 
 the adoption of any extensive alterations of which the expediency 
 may reasonably be doubted. Believing that few administrative 
 questions arc more difficult than those which relate to the constitu- 
 tion, distribution, and gradation of courts, your committee are of 
 opinion that no organic changes regarding such subjects should be 
 made in a system which has been long tried, and which is not 
 unpopular, except after the most cautious enquiry, and upon the
 
 ON THE ADMINISTRATION OF JUSTICE. 439 
 
 clearest reason. Upon the other hand, it will be the duty of the 
 Council to take care that no proved abuse shall be permitted to con- 
 tinue, and that all evident improvements shall be carried into 
 eflect. 
 
 " Your committee will now proceed to arrange under separate 
 heads the several matters upon which they deem it proper to re- 
 port ; and in so doing they propose to advert, first, to the constitu- 
 tion, distribution, and jurisdiction of the superior and inferior 
 courts ; secondly, to the system for the prosecution of crime in 
 those courts respectively; thirdly, to the mode of executing the 
 civil and criminal process of those several courts ; and lastly, to the 
 important subject of police. In pursuing this order, your commit- 
 tee believe that all remarks arid suggestions which they have to offer 
 to the Council, save those relating to trial by jury in civil cases, will 
 be not inconveniently arranged ; and in concluding this report, 
 they will separately advert to that important subject. 
 
 " Supreme Court. 
 
 u In the opinion of your committee the present constitution of the 
 Supreme Court should remain unchanged. They deem a court 
 composed of three judges to be better, at least in a Colony like this* 
 than a court composed of any lesser number ; and, without ad- 
 verting to the peculiar circumstances which have limited the Su- 
 preme Courts of a few Colonies to two judges, and those of a greater 
 number to one judge, your committee are not prepared to recommend 
 any alteration which would reduce the number of judges now form- 
 ing our Supreme Court. 
 
 " Two projects connected with the point now in question have 
 been considered by your committee; one, that of withdrawing a 
 judge from the court at Cape Town, in order to form a separate 
 but subordinate court at Graham's Town ; and the other, that of 
 adding two to the number of our judges, so as to make five in all ; 
 and then leaving the chief justice to be permanent in Cape Town, 
 to divide the Colony into five districts, and place the four puisne 
 judges respectively in Worcester, George, Graham's Town, and 
 GraafF-Reinet.
 
 44 ON THE ADMINISTRATION OF JUSTICE. 
 
 "A full discussion of these projects, and of the several reasons 
 advanced in their support, would greatly, and in the opinion of your 
 committee, unnecessarily, swell out this report. That discussion 
 may, with propriety and advantage, be reserved for council. But 
 some brief reference to the grounds upon which your committee 
 have been led to withhold their assent from both the projects men- 
 tioned seems to be demanded, as well by the nature of the projects 
 themselves, as by the respect for the arguments and authority of 
 those by whom they are respectively supported. 
 
 " With regard to the first proposal, there is no difference of 
 opinion in the committee. The members are unanimous in thinking 
 that no plan has been suggested which would justify the erection 
 of a separate court at Graham's Town by the means proposed. 
 
 " The question is not the naked one, whether a separate court 
 there would or would not be a desirable thing. Provided the court were 
 an efficient one, it may at once be admitted that, considered in 
 itself and without regard to absolute expense and other claims, it 
 would be a desirable thing. But the question simply is, whether 
 *n order to create such a court as that of one judge in Graham's 
 Town, we should leave such a court as that of two judges in Cape 
 Town. Your committee are of opinion that such a proceeding 
 would be most unwise. It would reduce inconsiderably, if at all, 
 any of the present expenses, and would certainly entail some 
 expenses wholly novel. But above all, it would leave the courts at 
 either end of the Colony so constituted that the public confidence 
 in the efficient administration of justice must almost necessarily be 
 shaken. The reasons for this opinion might easily be expanded^ 
 and enforced ; but since, as already observed, no difference of 
 opinion upon the point exists in your committee, it is deemed 
 needless to enter more minutely into the question. The project 
 which is wholly distinct, of creating a new judge at Graham's Town > 
 leaving the constitution of the Supreme Court unaltere d, will be 
 adverted to hereafter. 
 
 " The plan of dividing the Colony into five districts, and placing 
 a judge in each, is one which has been strongly supported in com- 
 mittee. It has been so supported chiefly upon the ground, as your
 
 ON THE ADMINISTRATION OF JUSTICE. 44 1 
 
 committee consider, that it would considerably shorten the delay 
 before trial in all cases, criminal and civil, and that it would remove 
 great and daily increasing difficulties connected with the means of 
 transport for the judges upon their present circuits. That these 
 things would be very advantageous can admit of no doubt. The 
 sooner a man is tried (provided he have had sufficient time to prepare 
 for his trial) the better ; since, if innocent, he is the sooner liberated, 
 and, if guilty, the sooner punished. In the same manner it may 
 readily be shown that no avoidable delay should take place in the 
 determination of civil cases, in which delay always leads to expense 
 and often to injustice. And in regard to the transport of judges on 
 circuit, your committee acknowledge the possibility that if each of 
 five local judges were to perform the circuit of his own district, and 
 no more, some arrangements might be made respecting the number 
 and supply of the necessary wagons and horses, which would be both 
 cheaper and more convenient than any system which can be devised 
 for conveying the judges, with a due attention to their comfort, over 
 so long a circuit as that of the entire Colony. 
 
 " But neither these nor any other advantages which have been 
 suggested, have satisfied your committee that the public welfare, 
 which is inseparably bound up with an intelligent, impartial, and 
 uniform administration of law, would be consulted by breaking up 
 the Supreme Court for the purpose of substituting five separate 
 judges, deciding separately in five separate places, three of those 
 places being remote villages, in which there is not, nor is likely 
 soon to be, a public press, or a public opinion, or professional aid. 
 
 " Your committee are aware that two safeguards against the mis- 
 takes or misconduct of the local judge were meant to be provided ; 
 one, that he should try no question of fact without the assistance 
 of a jury; and the other, that three out of the five judges should 
 assemble once a year in Cape Town, for the hearing of new trial 
 motions and appeals. Under such circumstances, it is supposed 
 that the local judge contemplated would be precisely in the situa- 
 tion of the existing single judge on circuit, except as to that which 
 would give him an advantage, namely, the influence and assistance 
 of jury trial in civil cases.
 
 44 2 ON THE ADMINISTRATION OF JUSTICE. 
 
 "Believing that trial by jury in civil cases would not tend to im- 
 prove the administration of justice if generally adopted in such 
 courts as those proposed, your committee do not regard its intro- 
 duction there as any recommendation. They are of opinion, that 
 such courts have no peculiar fitness for jury trial in civil cases, but 
 rather the reverse. They consider that whenever trial by jury in 
 civil cases shall be introduced into the country districts, it will, at 
 least, in the first instance, be most fitly resorted to in circuit rather 
 than in strictly local courts ; because a stranger judge will be less 
 likely either to overrule or be overruled by the members of the jury, 
 than a person always resident upon the spot, whose strength or 
 weakness all his neighbours know, and because in case of a new 
 trial granted by the Supreme Court, upon the ground that the jury 
 have failed to discharge their functions rightly, that new trial will, 
 in all likelihood, be had before a different judge from him who 
 presided at the first trial, and whose report of the proceedings may 
 have led the court above to set aside the verdict. For such reasons 
 your committee, instead of considering that the contemplated 
 courts as compared with circuit courts present any peculiar facilities 
 for the introduction of trial by jury in civil cases, are disposed to 
 think that the converse is the fact, and since they do not believe, 
 as will be hereafter stated, that even in the circuit courts trial by 
 jury in civil cases can yet be fitly introduced, they would regard 
 the proposal to establish it in the district courts contemplated, as 
 calculated rather to increase than to compensate for any defects 
 under which these courts might labour. 
 
 "Your committee would also observe, that whenever trial by jury 
 in civil cases shall be introduced in any part of the Colony, the 
 principles of our law, and the nature of our pleading, will require 
 in every instance the decision of a previous question, viz., whether 
 or not any, and, if so, what questions in the particular case be- 
 fore the court are proper to be tried by a jury ? and that, where 
 the decision of this question, always one of delicacy, must rest with 
 a single judge, who will be liable to the suspicion of either unduly 
 grasping at jurisdiction, or of getting rid unduly of individual 
 responsibility, it will necessarily become peculiarly delicate.
 
 ON THE ADMINISTRATION OF JUSTICE . 44J 
 
 "Viewing, therefore, the courts referred to as they would exist 
 without trial by jury in civil cases, your committee are compelled 
 to regard them as a retrogade movement in the administration of 
 justice, and to state their impression, that the public in general 
 would view such a change in our present system with well-founded 
 apprehension. 
 
 "It is conceived that, in their practical operation, such local courts 
 would differ widely, and for the worse, from the existing circuit 
 courts. Appeals from the circuit courts now come on for argument 
 immediately after the conclusion of the circuit. Appeals from the 
 local courts may, upon the system proposed, lie over for a year. The 
 circuit courts will, in general, furnish an inducement for the attend 
 ance of something like a bar. The business before the local courts, 
 or most of them, could never furnish any such inducement. In 
 cases of difficulty evidence can now be taken on circuit, and the 
 case then removed for argument before the full court. No such 
 beneficial practice as this could obtain in the local courts referred 
 to. The circuit judge is now enabled to keep up or increase his 
 professional knowledge, by the discussions of the bar, and by con- 
 ference with his brethren. It is conceived that annual re-unions 
 of three out of the local judges would not have the effect of pre- 
 venting those functionaries from gradually losing whatever law 
 they might originally have possessed. 
 
 "But if the circuit courts, as they stand, have advantages which 
 the suggested local courts would not possess, the constitution of the 
 Supreme Court, as it now exists, would by the establishment of those 
 local courts, be wholly changed. It is intended that it should be a 
 court of appeal from the local courts, and nothing more. The Su- 
 preme Court is now a court before which all cases may be brought in the 
 first instance. If the parties agree, all cases brought in the Supreme 
 Court, no matter from what part of the Colony, may be there deter- 
 mined. If the question be one merely of law, the case can, bv either 
 party, be always retained there. 
 
 "If facts be disputed, and the witnesses distant, so that they may 
 more readily be heard elsewhere, the case is removed to the most 
 convenient circuit court, to come back, if need be, to the supreme
 
 444 ON THE ADMINISTRATION OF JUSTICE. 
 
 for further argument, and final determination. Motions in bank- 
 ruptcy, provisional cases, special verdicts in criminal cases, and 
 matters of a like nature are now decided in Cape Town by three 
 judges, with the assistance of a bar, in the presence of a public at 
 least comparatively intelligent, and under the observation of a 
 vigilant press. Your committee conceive that an annual meeting 
 of three out of the five suggested judges, for the purpose merely of 
 hearing appeals from judgments separately pronounced by those 
 judges, would be a very indifferent substitute for the present Supreme 
 Court. A court of appeal is doubtless necessary. But no court 
 of appeal, however competent, can remedy half the mischief which 
 may be done by defective courts of first instance. Had the suggested 
 system presented anything that could be deemed to be counter- 
 balancing advantages, your committee, while admitting its incon- 
 veniences, would have nevertheless embraced it. But they are 
 unable to discern any such advantages. 
 
 "If viewed in relation to expense, it may safely be asserted that 
 the suggested system, giving it credit for every saving that it could 
 possibly effect, would, upon the supposition of but two circuits in 
 the year through his district by each local judge, cost more than 
 the present system at the present rate of trans port. And, indeed 
 without such circuits the expense would be greater than with them 
 to say nothing of she great hardship and inconvenience to which all 
 witnessess would be subjected by being compelled to resort to the 
 distant seat of the local judge, instead of to their district town. 
 
 "It is maintained that the present mode of obtaining transport 
 cannot continue, and that the judges must be conveyed by contract. 
 Your commiitee are not in possession of the evidence upon which 
 this allegation is founded. But assuming for the sake of argument 
 that she system of contract must be resorted to, and that the result 
 would be a considerable increase in the expense of transport, your 
 committee do not see why the greater distance to be performed by 
 the five suggested judges in their circuit should, by contract, cost 
 much less than the transport of the present circuit judge. It re- 
 mains to be proved that one wagon only would be demanded by 
 the district judge, as well as that if one wagon be sufficient for him,
 
 ON THE ADMINISTRATION OF JUSTICE. 445 
 
 one wagon would not be sufficient for the circuit judge, now that 
 fresh supplies may be had in so many towns and villages throughout 
 the Colony. 
 
 "Your committee are disposed to doubt whether any accurate 
 estimate of the comparative expense of the present and proposed system 
 can now be framed. It is needless to remark that in comparing the 
 expense of the two systems, all reductions equally competent to 
 both must be thrown out of the calculation. It is only upon the 
 items necessarily peculiar to each, that the relative cost can be 
 determined. And your committee feel some confidence that, upon 
 an accurate examination of the present system of a Supreme Court 
 of three judges, and tvvo circuits in the year, with the proposed 
 system of five judges, with their establishments, performing two 
 circuits in the year, it will be found that the latter will be the more 
 expensive. 
 
 <l For what objects, then, should a certain, and, as your committee 
 believe, a considerable, additional charge be placed upon the public 
 revenue, and all the cases now decided in the first instance by 
 three judges be declared in the first instance by but one ? 
 
 " These objects have been already stated. That they are desirable 
 objects your commitiee have admitted. But that they are of para- 
 mount importance your committee cannot perceive, and in reference 
 to one of them, namely, speedier trial of criminal and civil cases, 
 they can perceive as little how ihe suggested system could be ex- 
 pected to accomplish it, unless at an expense which would still more 
 increase the comparative cost of the proposed system. 
 
 " With two circuits in the year, the average detention of prisoners 
 before trial in the circuit courts may be stated to be about 120 days. 
 Two circuits in the year through the district of the local judge 
 would give the same average detention in every place except his 
 place of residence. Upon this supposition nothing is gained except 
 in reference to prisoners at that place. In order to shorten the de- 
 tention in the other places, the judge must either cause the pri- 
 soners and witnesses to be brought to his residence, or he must go 
 circuit more frequently than twice a year, and in either way much 
 additional expense must be incurred. If a sense of what is due to
 
 446 ON THE ADMINISTRATION OF JUSTICE. 
 
 untried men requires that we should incur that additional expense, 
 let it be incurred. But when it is remembered that in England 
 there are but two circuits in the year to try men committed by 
 magistrates, who are not always stipendiary, and men whose cases 
 no disinterested and responsible public prosecutor examines, it will 
 be admitted that the practice in this Colony cannot be justly deemed 
 regardless of what is due to be the liberty of the subject. No man 
 can be committed for trial in this Colony except upon evidence that 
 satisfies a salaried magistrate, whose duty it is to understand the 
 law and apply the evidence. As soon as any man is committed, it 
 is the duty of the Attorney-General to consider the evidence taken ; 
 and should it appear insufficient, to order the man to be discharged. 
 And, finally, twice every year there is a general gaol delivery. Your 
 committee cannot admit that, under such circumstances, it is neces- 
 sary to break up the Supreme Court, and to incur an additional 
 expense, in order to have such general gaol deliveries oftener than 
 twice a year. 
 
 "Your committee are disposed to think that, considering the 
 paucity of criminal cases in this Colony, and particularly in the coun- 
 try districts, criminal sessions may possibly be held too frequently. 
 Except in so far as by the trial and punishment of offenders, the 
 minds of the mass are educated into a state in which, anterior to 
 all reasoning about consequences, crime comes, by a sort of moral 
 instinct, to be regarded as a thing not to be committed, trials and 
 punishments entail an almost useless amount of suffering and ex- 
 pense. The trial, therefore, as well as the punishment, should be 
 public, and should be witnessed by the public. When solemn sit- 
 tings are held at intervals, during which such a number of cases has 
 arisen as will attract an audience and fix attention, salutary lessons 
 may be given, which could not be inculcated if cases were to be 
 disposed of pretty much as they come in, in the presence merely 
 ot the parties interested, the officers of the court, and such loungers 
 as might straggle in. 
 
 " Your committee do not advocate long imprisonment previous to 
 trial. But it is only to innocent men, or, to speak more properly, 
 to men who are finally acquitted, that such previous imprisonment
 
 ON THE ADMINISTRATION OF JUSTICE. 447 
 
 is really a hardship. The returns before the committee go to show 
 that in this Colony the number of acquittals amounts to less than 
 9 per cent of the committals. By parliamentary returns for 1834 
 and 1835, which are all that your committee have had an opportu- 
 nity of consulting, it appears that the committals in England and 
 Wales in those years amounted to 43,182, and that the acquittals 
 were 12,412, being rather more than 28^ per cent of the commit- 
 tals. This difference, arising, as your committee conceive, from 
 the exercise of the office of public prosecutor, should not be 
 neglected when we are reasoning about the evils of confinement be- 
 fore trial. 
 
 " Your committee, therefore, are of opinion that the Supreme 
 Court should not be broken up in the manner which has been pro- 
 posed, and that two circuits in the year should continue to be 
 made as usual. 
 
 " Additional Judge at Graham's Town. 
 
 ( ' The general question regarding the creation of a separate but 
 subordinate judge in Graham's Town, has been fully considered by 
 your committee. Assuming his salary to be equal to that of a 
 puisne judge in Cape Town, the establishment of a court of the most 
 economical description would necessarily entail a considerable ex- 
 pense. Your committee believe that the amount which wonld be 
 required may be more beneficially applied in adding to the existing 
 magistracy. With two circuits in the year to the eastern districts, 
 and two posts in the week from thence to Cape Town, where the 
 Supreme Court sits, your committee conceive that the reasonable 
 necessities of the inhabitants of Albany are sufficiently consulted 
 In regard to the eastern districts other than Albany, your committee 
 have reason to conclude that whether the court is placed at Graham's 
 Town or Cape Town is to them a matter of indifference. But 
 that the non-local court to which they have recourse, should be 
 composed of three judges or of one, is by no means a matter of 
 indifference. Your committee, while they have no doubt that the 
 inhabitants of Albany would gladly possess a court of equal efficiency 
 with the present Supreme Court, are by no means certain that
 
 ON THE ADMINISTRATION OF JUSTICE. 
 
 the general feeling amongst them would be favourable to the erection 
 of a court consisting of but one judge, to whom, and whom only, 
 they could, in the first instance, look for justice. Related as the 
 Supreme and Circuit Courts at present are, suitors can, when so dis- 
 posed, combine, in a great degree, the cheapness of a local inquiry 
 nto facts with the advantage of a more remote but, at the same 
 time, a more satisfactory determination of the law. Your committee 
 are disposed to question whether the inhabitants of Albany would 
 exchange these advantages for a single judge, even with an appeal 
 to Cape Town. But were this otherwise, your committee could 
 not recommend that so large an addition to the charge of administer- 
 ing justice should be made for the sake of placing any one frontier 
 district, however important, in a different position from that of 
 every other. 
 
 "' Resident Magistrates' Courts. 
 
 " Your committee recommend that a considerable increase should 
 be made to the number of the resident magistrates. Upon the para- 
 mount importance, or, to speak more properly, the urgent necessity, 
 of such an increase, your committee believe that all are cordially 
 agreed. It may be safely said that additional magistrates are one of 
 the chiefest wants of the Colony. Important districts, and large 
 numbers of people, lie upwards of one hundred miles from any 
 magistrate. The extreme remoteness of the existing seats of justice 
 induces very serious social evils ; questions between master and 
 servant are left unsettled ; crimes are compounded in some instances; 
 in others the supposed criminals are summarily subjected by the 
 injured parties to severe corporal punishment ; in a greater number 
 complete impunity is enjoyed by criminals who are well known to 
 be such ; and the ultimate effect is a general vitiation of the 
 moral sentiments of our distant population, leading, in its turn, to 
 the commission of fresh crimes. To furnish the means of supplying 
 new magistrates without impairing by any injudicious retrenchment 
 the efficiency of the existing administration of justice, has been an 
 object to which your committee have directed much of their attention. 
 
 " It appears to your committee that means may be found of adding
 
 ON THE ADMINISTRATION OF JUSTICE. 449 
 
 to the number of existing magistrates, so as to make their whole 
 number thirty, without sensibly, if at all, diminishing the efficiency 
 of any part of the present system. The sites at which the new 
 magistracies should be established seem to be pretty generally agreed 
 upon, and will not be difficult to determine. 
 
 " In reference to the convenience of the inhabitants and ineffi- 
 ciency of the magistrates, it has occurred to your committee to sug- 
 gest that a complete revision of the limits now assigned to the 
 several magistracies in the Colony, for the purpose of making the 
 position of each magistrate as central as possible, would probably 
 be attended with very beneficial consequences. 
 
 " Your committee are aware that none of the purely fiscal arrange- 
 ments of the Colony come within the scope of their inquiry, but they 
 submit, for their consideration in the proper quarter, that if every 
 such district were separated from the rest, as well for financial as 
 magisterial purposes, the convenience of the inhabitants would be 
 very much promoted. Your committee do not see any sufficient 
 reason which should prevent the Government from equalising, as 
 vacancies occur, the salaries and duties of all magistrates, or why, 
 in other words, the offices of magistrate and civil commissioner 
 should not be universally combined. The slight multiplication of 
 public accountants, which would be the consequence of such a 
 change, ought not, your committee think, to stand in the way of 
 an improvement which would relieve great numbers of our rural 
 population who desire to pay transfer dues or land rent, from the 
 necessity of undertaking, with one public functionary in their 
 immediate neighbourhood, long, harassing and expensive journeys 
 to another public functionary placed at a distance. 
 
 " Your committee are of opinion, that the time has come when it 
 behoves the Colonial Government to take upon itself the mainte- 
 nance of the four magistrates hitherto paid by Her Majesty's 
 Government, namely, the magistrates of Wynberg, the Paarl, 
 Malmesbury, and Caledon. While it is true that a principal part 
 of the late slave population is still to be found in the vicinity of the 
 places above enumerated, it has not appeared to your committee 
 that that circumstance can justify a call upon the Home Government
 
 ON THE ADMINISTRATION OF JUSTICE. 
 
 to provide longer for magistrates whose special services were in their 
 nature temporary, who have already been supported for nearly 
 seven years, and whose duties are not distinguishable from those 
 of resident magistrates in general. 
 
 " Jurisdiction of the Resident Magistrates' Courts. 
 
 " Your Committee are not prepared to recommend that the juris- 
 diction of the courts of resident magistrates should be largely in- 
 creased. 
 
 A purely summary trial has certainly many obvious advantages. 
 It saves the expense of supporting the prisoner previous to con- 
 viction ; it saves the expense of the double journey of witnesses; 
 it strikes the minds of the people by the suddenness with which 
 the punishment may be made to overtake the crime. But your 
 committee are disposed to think that these advantages could not, 
 in practice, be altogether realized by a large extension of the 
 summary jurisdiction, or that, if realized, it must be by the sacrifice 
 of still greater advantages. A prisoner brought in immediately 
 upon his apprehension, may not be prepared to take his trial ; and 
 if, in such a case, the magistrate should, as soon as he had evidence 
 which could warrant a committal for trial, instead of committing 
 for trial, find the prisoner guilty, and pronounce a serious sentence, 
 say two years' imprisonment, it is to be feared that mischiefs might 
 ensue, against which no system of appeal or supervision could 
 effectually guard. Upon the other hand, if the commitment and 
 the trial are still to be distinct proceedings, the double journey of 
 the witnesses would continue to be necessary ; and from the same 
 causes the other anticipated advantages would likewise be 
 diminished. To allow the witnesses to depose and then retire to 
 their homes, leaving the prosecutor or prisoner to bring other 
 evidence afterwards, but before judgment, would let in another 
 serious inconvenience : for no trial can, in general, be satisfactory 
 in which there is not, during its progress, a constant power of 
 recalling and confronting witnesses. A summary jurisdiction, by 
 which the double journey of the witnesses is dispensed with, appears 
 to your committee to involve difficulties of so grave a nature, that
 
 ON THE ADMINISTRATION OF JUSTICE. 451 
 
 it can only be allowed under two conditions ; one, that the cases 
 submitted to it shall be of the simplest class j and the other, that 
 the punishments to be inflicted under it shall be so limited as to 
 make the consequences of an error of judgment comparatively un- 
 important. 
 
 " Influenced by such considerations, your committee are not pre- 
 pared to recommend that the resident magistrates should have 
 jurisdiction in any criminal cases other than those of which they 
 can now take cognizance, nor that their power of punishment 
 should exceed three months' imprisonment. But such a moderate 
 increase they conceive would be decidedly expedient. It would 
 not, in fact, throw a much greater number of cases into the court 
 of the resident magistrate than ihose on which he now adjudicates ; 
 but it would enable him to pronounce, in some of those cases .a 
 more fitting punishment, and also to discriminate between different 
 degrees of guilt more strongly than he can do when, as at present, 
 he can in no case imprison for a longer period than one month. 
 
 "Assuming that the number of resident magistrates will be 
 augmented, and their criminal jurisdiction increased, in the manner 
 pointed out, it may become worthy of consideration whether means 
 may not be devised for securing or promoting the legality, uni- 
 formity, and efficiency of their proceedings. For this purpose your 
 committee are disposed to think that the several resident magistrates 
 in the Colony (except, perhaps, those of Cape Town and Graham's 
 Town) should be called upon to transmit to some competent 
 authority the record of every criminal case summarily disposed of by 
 them, whether it shall have terminated in a conviction or an 
 acquittal, and containing a statement of the charge, the evidence 
 and the judgment. This record it should be the duty of the authority 
 referred to, to peruse, for the purpose of ascertaining whether any 
 irregularity, or apparent error, had crept into the proceedings 
 Should such be found in any case where a conviction had been had* 
 the convict should be pardoned, and where any acquittal seemed to 
 have proceeded upon a wrong principle, such a representation might 
 be made to the magistrate as would have the effect of preventing a 
 recurrence of the mistake. In the same manner a certain degree of 
 
 GG 2
 
 ON THE ADMINISTRATION OF JUSTICE. 
 
 uniformity in the sentences of the various magistrates might be ex- 
 pected gradually to arise from the influence of such a superintending 
 authority as that which the committee have in view. That 
 authority might be either the Attorney-General, or a separate officer 
 who, like the Attorney-General, should be permanently resident in 
 Cape Town. But your committee are of opinion that, should such 
 surveillance be deemed by the Council to be salutary, it should be 
 given to the judges of the Supreme Court ; a course which would, at 
 once, secure the highest degree of qualification, and be attended 
 with no expense. 
 
 "An extension of the civil jurisdiction of the resident magistrates 
 is not open to the same or equal objections as an extension of the 
 criminal. It is therefore recommended that the civil jurisdiction 
 should be increased. 
 
 " The resident magistrate of Cape Town has, at present, jurisdic- 
 tion in civil cases where the cause of action does not exceed twenty 
 pounds in value. In the country districts the resident magistrates 
 cannot decide cases involving an amount of more than ten pounds. 
 Your committee are of opinion, that if any difference should exist 
 between the jurisdiction in Cape Town and the jurisdiction in the 
 country districts, the jurisdiction should be greater in the country 
 than in town ; because, while the Supreme Court is always open to 
 such suitors in Cape Town as cannot proceed before the resident 
 magistrate, suitors in the country, whose cases the resident magistrate 
 cannot hear, must wait for circuit. But your committee recommend 
 that the jurisdiction of all resident magistrates should be equalised, 
 and that they should (subject of course to the restrictions now by 
 law provided, which prevent them from trying titles to lands or 
 offices, or any cases in which their judgment could bind rights in 
 future) be competent to adjudicate in every instance in which the 
 sum or matter in dispute shall not exceed the amount or value of 
 thirty pounds. 
 
 "Liquid documents, by which are understood unconditional 
 promises to pay money, or absolute acknowledgments of debt, are 
 in their nature such clear evidence of a claimant's right, that the 
 law of this Colony, like that of most countries, gives to the holder of
 
 ON THE ADMINISTRATION OF JUSTICE. 
 
 them peculiar facilities for realizing their amount. Your committee 
 were, atone time, of opinion that, in regard to such documents, the 
 jurisdiction of the resident magistrates might with safety be in- 
 creased to forty pounds, and that in all illiquid cases the limit of 
 twenty pounds should be prescribed ; but as questions might occur 
 regarding what were liquid and what illiquid cases, we hive come 
 to the conclusion that a general jurisdiction to the amount of thirty 
 pounds should be bestowed. 
 
 Prosecution of Crime. 
 
 "Your committee are of opinion, that to provide, as our judicial 
 system does, a responsible public prosecutor, is not merely sound as 
 a principle of general application, but that, in practice, it has 
 worked well in this Colony. 
 
 " If crime, as in some countries, must be prosecuted by the partie 8 
 injured, it will, in many instances, be either prosecuted vindictively, 
 or not prosecuted at all, to say nothing of the hardship of declaring 
 that those who have for the most part already lost by the crime, 
 8 hall come forward to prosecute the criminal, regardless of time, 
 trouble, odium or expense. If crime, as in some other countries, 
 can never be prosecuted but by the public prosecutor, that officer 
 is invested with an arbitrary power which may be abused by inca- 
 pacity or corruption. When the public prosecutor is required to 
 examine every case, and prosecute or not as he sees cause, but, at 
 the same time, the party injured is at liberty to proceed, after the 
 public prosecutor has declined to do so, both the evils which have 
 been specified are avoided. And this is the system established in 
 this Colony. 
 
 " Entertaining so favourable an opinion of the office of public prose- 
 cutor, your committee conceive that none of the powers or duties 
 now belonging to it should be interfered with, and that it should 
 continue to direct, as heretofore, all prosecutions before the colonial 
 courts. 
 
 " The public prosecutor is, at present, represented in each district 
 by the clerks of the peace. Your committee are of opinion that 
 such officers are not an essential part of the system of public prose
 
 4T4 ON THE ADMINISTRATION OF JUSTICE. 
 
 cution ; that the duties performed by them are shown by the returns 
 to be wholly incommensurate with the incurred expense ; that those 
 duties may more cheaply, and as efficiently, be performed by other 
 officers ; and that the clerks of the peace should be abolished. By 
 this means a saving of 3,966 per annum would be effected, which 
 would go far towards covering the expense of the new magistracies 
 so much required. 
 
 " If the principle of clerks of the peace in all seats of magistracy 
 is to be maintained, your committee do not discern any practicable 
 mode by which the means of paying any considerable number of 
 new magistrates can be provided, without materially increasing 
 the annual expense of the judicial system. Upon this supposition, 
 you cannot create a new resident magistrate without creating a new 
 olerk of the peace, and thus an obstacle of a nature almost, if not 
 altogether, insurmountable is thrown in the way of the most eminent 
 improvement of which the administration of justice in this Colony 
 is susceptible. But if, on the other hand, it be found that the duties 
 of new magistrates can be discharged without the assistance of such 
 officers as clerks of the peace, then the question arises, whether 
 the duties of the present magistrates may not be charged with such 
 aid ; and your committee are of opinion, that they can be so dis- 
 charged ; and that the office of clerk of the peace may be discon- 
 tinued without leading to diminished efficiency in any magistracy, 
 new or old. 
 
 " Your committee are cf opinion, that the resident magistrate should 
 Himself receive the report of crimes, and take the preparatory exa- 
 mination. The intervention of an officer between the committing 
 magistrate and the witnesses, appears to your committee to be, in a 
 great degree, a useless form. Every magistrate who is competent 
 to estimate the weight of the evidence, must be presumed to be 
 competent to elicit it by the necessary questions. It is true that 
 two investigating officers will, in general, if equally zealous and 
 intelligent, investigate more thoroughly than one, and that by being 
 relieved from the duty of conducting the whole investigation him- 
 self, the magistrate may be supposed to have his attention less 
 distracted, and his judgment mere unbiased. But it appears to
 
 ON THE ADMINISTRATION OF JUSTICE. 455 
 
 your committee that, in the face of a pressing necessity for as many 
 magistrates as can be procured, to incur a heavy expense for the 
 6 ake of such advantages as they have now alluded to, would be to 
 refine too much, and sacrifice practical utility to systematic perfection. 
 
 " Your committee consider thai there is nothing in the taking of a 
 preparatory examination which it could be improper or incongruous 
 for the magistrate to perform, and that the examination, when 
 taken, may be transmitted to the Attorney-General's office by the 
 magistrate as fitly as by the clerk cf the peace. 
 
 " Another portion of what may be termed the court duty of the 
 clerk of the peace, is to prosecute in summary cases, [s is conceived 
 that the interference of such a functionary with such cases is not re- 
 quired. By hearing the parties concerned, the magistrate will be 
 able to attain a perfect knowledge of the case, and he does not seem 
 to stand in need of assistance from any one in the character of advo- 
 cate or agent. 
 
 " The remaining duties of the clerk of the peace which regard the 
 administration of justice, are two ; one connected with the first 
 stage of each criminal case, and the other with the last ; the first 
 being to trace out the crime, the criminal, and the evidence against 
 him, previous to the preparatory examination, and the second to 
 conduct the case in the circuit court after the indictment. 
 
 "Your committee conceive that between these different duties, 
 the one being that of a police officer, and the other that of an advo- 
 cate, there is no natural connexion, and that their union in the same 
 officer is not desirable. In all probability the person by whom one 
 of them is performed with singular ability, will be, on that very ac- 
 count, deficient in the other. Your committee are of opinion, for 
 this amongst other reasons, that those duties ought to be divided. 
 
 "In regard to the tracing of crime and criminals, this, being a 
 police duty, should, in the opinion of your committee, be performed 
 by police. An inspector of police, acting under the resident 
 magistrate of the district, will, it is anticipated, be more competent to 
 discharge the peculiar function now in question than officers charged 
 with, and competent to, the other functions of the present clerks of 
 the peace. Indeed, \\ithout such a head of police the clerks of the
 
 ON THE ADMINISTRATION OF JUSTICE. 
 
 peace could scarcely act efficiently while engaged in tracing crimes 
 and criminals ; and with such a head of police, acting under the 
 magistrate's orders, it appears to' your committee that the clerks of 
 the peace may themselves be dispensed with. The subject of police 
 in the country districts will be afterwards adverted to under a 
 separate head. 
 
 "The manner in which prosecutions in the circuit courts should 
 be conducted after the abolition of the office of clerk of the peace, 
 has been much considered by your committee ; and while the 
 members are not in all respects unanimous in matter of detail, they 
 are generally agreed upon the principle which it will be expedient 
 to introduce. They are of opinion that by the employment of a 
 circuit prosecutor (one, or more than one, should it be found 
 desirable) whose head quarters should be Cape Town, and who 
 should be, while there, in personal communication with the Attorney- 
 General relative to the country cases to be tried, the duty in ques- 
 tion may be efficiently performed. Whether the circuit prosecutor 
 should be chosen out of the present clerks of the peace, and should 
 receive a stated salary, and be debarred from other practice, or 
 whether the office should be filled by an advocate willing to under- 
 take the duty together with his private business, or whether, in 
 order to prevent too many demands from being made upon the 
 attention of one advocate, and to encourage, for public convenience 
 the attendance of at least two advocates on circuit, it would be ad- 
 visable to arrange that the public prosecutor should be represented 
 by different advocates in different towns, all these are questions 
 upon which it will be for the Council to decide. Your committee 
 will, at present, only say that any one of the modes above suggested 
 is, in their opinion, capable of working well. It nay confidently be 
 assumed that the prosecutor, or prosecutor's depu ty, whoever he or 
 they may be, will, in intelligence and legal kn owledge, be superior 
 tc the average of clerks of the peace ; that in regard to the majority 
 of cases personal communication with the department of public 
 prosecutor will have imparted ample information as to the circum. 
 tances of the case ; and that in the rare instances in which, for 
 the purposes of challenging jurors, a certain degree of purely local
 
 ON THE ADMINISTRATION OF JUSTICE . 457 
 
 knowledge is demanded, the necessary knowledge can always be 
 obtained upon the spot. Your committee must also observe that as. 
 there is rarely minute local knowledge without some little local pre- 
 judice or prepossession, they do not deem it desirable as a general 
 principle that the prosecutor who conducts the case in court should 
 possess that minute knowledge. 
 
 " Should the recommendations of your committee, in regard to 
 the office of the clerk of the peace, be carried into effect, the course 
 which will be pursued with respect to the tracing and trying of 
 criminals will, in its main features, be as follows. There will be 
 the chief of the district police, who, besides directing his energies 
 to the prevention of crime, will be bound to make every exertion 
 when crime is committed to secure the perpetrators. Acting under 
 the orders of the magistrate, and when practicable in conjunction 
 with the field-cornet, he will cause the prisoner, with the necessary 
 witnesses, and if possible none but the necessary witnesses, to be 
 brought to the district town. Arrived there, the magistrate will 
 proceed, should the case be one above his summary jurisdiction, to 
 take a preparatory examination. When this shall have been com- 
 pleted and the prisoner committed for trial, the magistrate will 
 transmit the depositions to the Attorney-General. Should this 
 officer consider that the evidence is in any respect defective, he 
 will communicate with the magistrate upon the subject, pointing 
 out what is defective, and suggesting the best mode of supplying 
 the deficiency. When the case is one which the public prosecutor 
 feels it his duty to indict, he will, in due time, transmit the indict- 
 ment to the magistrate, in order that it may be served upon the 
 prisoner, and that the witnesses may be summoned. The manner 
 in which such service and summoning are to be made will be re- 
 ferred to in another part of this report. In the meantime, the 
 circuit prosecutor will have read and considered the depositions 
 and communicated with the Attorney-General in regard to any 
 difficulties which may be presented by the case. When the circuit 
 prosecutor reaches the circuit town, the magistrate, through his 
 clerk, will hand him, as a brief, a copy of the depositions, and the 
 magistrate's clerk and the chief of police will confer with the circuit
 
 45 S ON THE ADMINISTRATION OF JUSTICE. 
 
 prosecutor regarding any matter connected with any of the cases 
 which may appear to any of the parties to be important, [n court 
 the circuit prosecutor will, as counsel, conduct the case. The duty 
 of having the witnesses in readiness, and of afterwards paying their 
 expenses, will be divided between the chief of police and magistrate's 
 clerk. When the circuit has qlosed, or sooner if convenient, the 
 circuit prosecutor will furnish to the Attorney-General's office a 
 report of the cases tried, exhibiting the result of each, and offering 
 such remarks upon any error which may have been committed, 
 either in the preparation of the indictment or any other part of the 
 getting up of the case, as may serve to improve the practice of the 
 office. 
 
 " Your committee are of opinion that according to the system now 
 described, the functions of the public prosecutor and those of the 
 magistrate are in no way unconstitutionally blended ; that under it 
 the magistrate cannot, in any just or even intelligible sense, be said to 
 be under the control of the Attorney-General; and that, in so far as it 
 tends to impose upon the magistrate an undivided responsibility for 
 the state of his district in regard to the prevention and prosecution of 
 crime, it is preferable to a system which divides that responsibility 
 between the magistrate and the clerk of the peace, in proportions 
 not clearly defined either by law or common opinion. 
 
 Grand Jury. 
 
 " The existing grand jury system in the Cape division may be 
 regarded as a part of the present system of prosecution of crime. 
 Your committee, without saying that this institution is necessarily 
 mischievous, look upon it as a useless anomaly which ought to be 
 abolished. It is calculated to do ill what the petit jury can do 
 well. It presents no check upon the public prosecutor which the 
 petit jury and an open trial would not more effectually present. 
 It decides in secret upon evidence taken in secret, where there is 
 neither judge to expound the law, nor machinery to bring out the 
 facts, nor a public audience to witness their proceedings and judge 
 their judgment. It has no sense of responsibility sufficient to 
 control any prejudice or prepossession which may exist amongst the
 
 ON THE ADMINISTRATION OF JUSTICE. 459 
 
 members. It was introduced into this Colony from England, where 
 its ancient function was that of public prosecutor, namely, to en- 
 quire into rumoured offences, and determine what parties should be 
 proceeded against, and where, in all probability, it never would 
 have been known had another official and responsible prosecutor 
 been provided. It arose in the mother country long before the 
 practice of commencing criminal cases by a preparatory examina- 
 tion before justices of the peace was known, and in the opinion of 
 eminent authorities might well have sunk into disuse when that 
 practice became universal, inasmuch as it then ceased to be, what 
 it had been before, a preliminary inquest. It never existed in 
 Scotland, where the officer of public prosecutor is established ; and 
 has not been adopted in France, which borrowed from England 
 her system of petit juries in criminal cases. It is found in the 
 metropolis of the Colony, where abuse of the authority of the 
 public prosecutor is least likely to pass unnoticed or uncensured ; 
 and is not found in the country district, where there is no 
 weight of public opinion to control the public prosecutor, and 
 where, if there were such, the public prosecutor is too distant to 
 regard it. It deprives the petit jury list of the Cape division 
 of a number of gentlemen who would constitute its best members. 
 "Believing that the grand jury system should, for the sake of 
 consistency, be either extended or abolished, your committee, for 
 the reasons given, recommend its abolition. 
 
 Execution of Process. 
 
 "All summonses of the Supreme and Circuit Courts in civil and 
 criminal cases, and all writs, of execution in civil cases, are served 
 and executed by the sheriff of the Colony, or his deputies. 
 
 "The sheriff receives a fixed salary, but his deputies in the 
 country districts are paid by fees. 
 
 " By a return which has been obtained from the sheriff's office, 
 and which will be found amongst the proceedings of your committee, 
 it will be seen that the amounts received by the deputy sheriffs 
 vary considerably, and that, in the aggregate, they amount to 
 4,846 175. 4d. per annum.
 
 ON THE ADMINISTRATION OF JUSTICE. 
 
 " Circumstanced as this Colony is, we must seek the means of 
 providing for new officers by consolidating the duties, and so 
 reducing the number, of the old. 
 
 " It may, therefore, become worthy of the consideration of His 
 Excellency and the Council, whether the clerks of the resident 
 magistrates, who are at present very poorly paid in the various dis- 
 tricts, might not act as deputy sheriffs, receiving a fixed but increased 
 salary, and paying over all fees into the treasury. 
 
 " In the performance of the duties of deputy sheriffs by the 
 magistrates' clerks, the police force already mentioned, and which 
 will be more particularly adverted to under the next succeeding 
 head of this report, might, perhaps, be made to afford efficient and 
 comparatively speaking inexpensive aid. 
 
 " It appears, however, to your committee that no such change 
 could be properly effected without relieving the sheriff of the Colony 
 from his responsibility for persons whom he had ceased to appoint, 
 and without a guarantee, on the part of Government, for the due 
 performance by its officers of the duties to be imposed upon them. 
 As the matter now referred to was not made the subject of any 
 examination of witnesses in the course of our enquiry, and as your 
 committee do not feel that they have sufficiert information before 
 them to entitle them to form any positive opinion, they wish to be 
 understood as merely suggesting for further consideration the plan 
 which has now been indicated. 
 
 " Your committee are of opinion that the duty of summoning 
 jurors and witnesses in criminal cases should be discharged by the 
 police of the district. By this means it is conceived that the work 
 will be at least as efficiently performed as at present, and that a 
 saving will thereby be effected, which will materially contribute 
 to the support ot the police force, without diverting its members 
 from any of the duties more immediately belonging to them as 
 constables and conservators of the peace. 
 
 Police in Country Districts. 
 
 " Your committee conceive that the presence of a small but in- 
 telligent police force in each cct ry district would prove very useful.
 
 ON THE ADMINISTRATION OF JUSTICE. 461 
 
 "The constables should act under a head, to be called inspector, 
 and the entire force should be placed under the orders of the resi 
 dent magistrate. 
 
 " The number of policemen required would vary with the re- 
 quirements of the various districts, but an average of four, including 
 the inspector, would seem, at least in the first instance, to be as 
 many as it would be expedient to appoint. Should it be found 
 that a larger number was required, and the means of maintaining 
 it exist, an addition could readily be made. The inspector and 
 two constables should be mounted. 
 
 " It is conceived that competent inspectors could be found who 
 would, providing and keeping their own horses, serve for 100 per 
 annum. Constables might be had for 40 per annum. The in- 
 spector, it is believed, would provide and keep horses for such of 
 these constables as were to be mounted for an annual allowance of 
 25 for each horse. 
 
 " If such a police were placed in each district, it might be worthy 
 of consideration whether the number of field-cornets and assistant 
 field-cornets might not be reduced with advantage to the public 
 service. 
 
 " Your committee are of opinion that the inspector of police 
 might also act as messenger of the magistrate's court, so as to effect 
 a saving, should no change be made by which the duties of messen- 
 ger should be consolidated with those of deputy sheriff, and the 
 whole be then performed by the resident magistrate's clerk or by 
 some other salaried officer. 
 
 Trial by Jury in Civil Cases. 
 
 " Your committee have now reached the last point to which, in 
 the outset, they proposed to advert. It is one of great importance 
 and acknowledged difficulty. 
 
 " The benefit of trial by jury in criminal cases is almost uni- 
 versally admitted. Your committee consider that it has in this 
 Colony worked well. Cases very rarely occur here involving strong 
 popular excitement amongst the classes of which the juries are 
 composed, and, consequently, there are as rarely witnessed those
 
 4.62 ON THE ADMINISTRATION OF JUSTICE. 
 
 blind convictions and those equally blind acquittals which now and 
 then in other countries have tended to bring trial by jury into 
 disrepute amongst impartial men. It is believed that the instances 
 in this Colony in which the presiding judge has seen cause to be dis- 
 satisfied with the finding of the jury have been very few indeed. 
 
 " The advantages of the system are not confined to the delivery 
 of true verdicts. Its indirect influence is very beneficial. It may 
 be admitted that a judge whose education has been directed to legal 
 objects, whom long practice has taught the art of eliciting evidence 
 and the mode of estimating its weight, is more likely to come to 
 a right conclusion than an ordinary juryman taken from his farm or 
 his shop. But no judge, however able or upright, is likely to decide 
 criminal cases so correctly as a number of such jurymen of opposite 
 pursuits and habits of thinking, who are assisted by the professional 
 views of the judge, but who at the same time can correct that 
 tendency to become too technical which professional views 
 occasionally exhibit, and who bring to the determination of the 
 question "guilty or not guilty," more sympathy with the sentiments 
 of the society from which they are indifferently taken than could 
 be secured in any other way. When to this are added the protec- 
 tion which, in general, the accused enjoys from trial by jury, the 
 advantage of exercising the intellect and increasing the information 
 of the jurors, and the importance of giving to our upper and middle 
 classes themselves some knowledge of the laws which they are 
 privileged to administer, it will not appear surprising that trial by 
 jury should be popular in this Colony, and that an extension to civil 
 cases of that mode of deciding questions of fact, should number many 
 advocates. 
 
 " It might, at first sight, appear that if trial by jury in criminal 
 cases be desirable, trial by jury in civil cases must be desirable 
 too. It may be urged, and with truth, that the questions of fact 
 occurring in the one class of cases are not in general more difficult 
 than those occurring in the other, and that the consequences of 
 error are, for the most part, more serious in the cases which we try 
 by a jury than in those in which we try without it. But your 
 committee, while favourable to the pla/* r ntroducing trial by
 
 ON THE ADMINISTRATION OF JUSTICE. 463 
 
 jury in civil cases, cautiously and as an experiment, are yet of 
 opinion that its fitness for criminal cases does not necessarily prove 
 Us fitness for civil cases : and that to introduce it generally and at 
 once throughout the whole Colony, might be productive of serious 
 ^convenience, not to say of positive injustice. 
 
 " One very obvious difference between criminal and civil cases 
 in regard to jury trial arises from the difference in the principles 
 by which, in each case respectively, the finding should be governed.. 
 When the public prosecutor is plaintiff, and the prisoner is defendant, 
 the law requires that the plaintiff should not have a finding in his 
 favour so long as there exists a reasonable doubt of the defendant's 
 guilt. In civil actions the rule is otherwise. There the plaintiff is 
 entitled to a verdict upon the bare preponderance of proof, and 
 cannot without injustice be put out of court upon a mere doubt, 
 however reasonable, of the defendant's liability. If jurors in civil 
 cases were always to find for t-he defendant when the evidence is 
 in that state in which in a criminal case they would properly 
 find for the prisoner, the consequences would be disastrous. Under 
 these circumstances it is conceived that, in general, much less acumen 
 is necessary to act as juror in criminal than in civil proceedings, 
 since it is easier to see when evidence preponderates so overwhelm- 
 ingly as to leave no reasonable doubt, than to see when it simply 
 preponderates, and does no more. It certainly is difficult, in 
 some cases, to define or determine what is a reasonable doubt. But 
 in practice it is found that the same humane considerations which 
 have led to the establishment of the rule itself govern the appli- 
 cation of it also, and that in almost all cases of a difficult nature the 
 jury relieve themselves from embarrassment by acquitting the 
 accused. 
 
 " Another, and perhaps more important, distinction between 
 criminal and civil cases in regard to jury trial in this Colony, arises 
 from the smallness of our population, coupled with the difference 
 which exists between the class of persons usually interested in 
 criminal proceedings as contrasted with the class of persons usually 
 interested in civil. 
 
 " For the most part prisoners arc persons in the lower rank of
 
 4.64 ON THE ADMINISTRATION OF JUSTICE. 
 
 life. They are either unknown to, or unconnected with, the per- 
 sons who compose the jury. The humanity of our jurymen is a 
 safeguard, in every case, against undue convictions. But in most 
 Instances there is nothing in the social position of the accused to 
 prevent a conviction when justice calls for it. If in case the ends 
 of public justice shall not be fully secured by our colonial juries, it will 
 not be by convictions of the innocent, hut by acquittals of the guilty. 
 
 "With suitors in civil cases the matter would be very different. 
 There are few places in this Colony in which it would be possible 
 to empanel a jury to try any civil case of a certain importance, arising 
 "in the district, who had not more or less prejudged the question, or 
 who did not stand in some relation to one or other of the parties 
 Inconsistent with complete indifference. 
 
 " It is true, indeed, that cases may be supposed in which the judge 
 may be known to be on terms of intimacy with one or other of the 
 parties. But when the judge is non-resident, as our circuit judges 
 are, those cases must be very rare. And if any case do arise, the 
 judge's sense of undivided responsibility for his judgment, to say 
 nothing of more exalted motives, is a great safeguard against 
 favouritism. The judge, moreover, is constrained by a practice, 
 which has become a principle, to give his reasons in open court. 
 The jury, on the other hand, gives no reasons whatever ; and in the 
 opinion of your committee, the necessity of stating in the presence 
 of an audience, who have heard the evidence, the grounds upon 
 which the judge rests his judgment, affords a security for right deci- 
 sions of which it would be difficult to over-estimate the value. 
 
 "The time will probably come when trial by jury in civil cases 
 may, with safety, be introduced into the circuit courts and country 
 districts. But your committee are not prepared to recommend at 
 present such a sweeping measure. 
 
 " It is in the Supreme Court that the experiment may most con- 
 veniently be tried. The number of the population of Cape Town 
 and its neighbourhood, and the other securities for impartiality 
 which there exist, appear to your committee to warrant the belief 
 that jury trial in civil cases may be introduced in the Supreme Court 
 with a reasonable prospect of success.
 
 ON THE ADMINISTRATION OF JUSTICE. 465 
 
 " Every disputed question ought to be tried by a jury upon the 
 application of either party in all cases in which the court should be 
 of opinion that the question in dispute was purely one of fact. 
 Matter of law should be reserved for the decision of the court. 
 Mixed questions of law and fact should, if possible, be separated so 
 as to send the fact to the jury and leave the law for the court. 
 
 " The nature of our jurisprudence, which does not divide law 
 and equity into separate systems, much less administer law and 
 equity in separate courts, and the nature of our pleading, 
 which does not necessarily end as pleading at common law in Eng- 
 land for jury purposes always does, namely, in the extrication of 
 some fact or facts directly asserted on the one side and directly 
 denied upon the other, will render some provisions necessary for 
 determining clearly the question to be tried. 
 
 "For this purpose your committee consider that the parties 
 under the direction of the court should settle between them the 
 issues for the jury. 
 
 " The jury list in regard to civil suits should comprise only 
 such persons as were by education and intelligence presumed to be 
 qualified to act; and the principles upon which special juries are 
 struck in England should, in all cases, be applied. 
 
 " Your committee conceive that, under the circumstances now 
 set forth, no evil can in any case be reasonably apprehended from 
 the introduction of trial in civil cases; and they are of opinion 
 that in a certain class of cases the introduction of that form of 
 trial would be of public benefit. If found unserviceable, the 
 measure may be abandoned. Should it work well in Cape Town, 
 it may gradually be extended to other parts of the Colony. 
 
 " Your committee deem it to be their duty to recommend, in 
 regard to trial by jury in civil cases, a cautious and gradual rather 
 than a sudden and general change. In criminal cases they con- 
 sider juries to be wholly indispensable, and they regard with just 
 admiration that noble form of trial. But in reference to jury trial 
 in civil cases, they cannot but recollect that great difference of 
 practice and opinion prevails in Europe; that in France, while 
 trial by jury in criminal cases has existed since the revolution, it 
 
 HH
 
 466 ON THE DUTCH REFORMED CHURCH. 
 
 has never been in civil cases ; that the great majority of those 
 numerous continental legislators and jurists who have of late years 
 discussed the question, are adverse to the system ; that in Scotland 
 the policy of the Act of 1815, which, for the first time, established 
 a rather restricted system of jury trial in civil cases, is still much 
 questioned ; that in England the opinions of jurists are much 
 divided, and that there seems to be an increasing disposition on the 
 part of suitors there to resort to those courts which try without a 
 jury, rather than those in which jury trial prevails." 
 
 ON THE DUTCH REFORMED CHURCH. 
 
 [Legislative Council, November 24, 1845.] 
 
 The ATTORNEY-GENERAL said that the Church Ordinance, which 
 he had prepared under the directions of His Excellency's prede- 
 cessor, had appeared, and justly appeared, to Her Majesty's 
 Government to involve some large questions. They had accord- 
 ingly called for a full report upon the principles and policy of the 
 measure, either from the Governor, or the Attorney- General of the 
 Cape. Being commanded by his Excellency, he (the Attorney- 
 General), had prepared as complete a report as he was able, which had 
 been transmitted to the Secretary of State. The last communica- 
 tion received from His Lordship by His Excellency stated that if the 
 5th Section were altered so as to vest the appointment of ministers 
 of the Dutch Reformed Church in Her Majesty directly, instead of 
 in the Governor, the Queen would be advised to allow the Ordi- 
 ancc. The matter was one rather of form than substance, and 
 the present Bill went to make the change required by Lord Stanley, 
 He moved the second reading.
 
 ON THE WILLS ATTESTATION ORDINANCE. 467 
 
 ON THE WILLS ATTESTATION ORDINANCE. 
 
 [Legislative Council, November 24, 1845.] 
 
 The ATTORNEY-GENERAL said that it would be unnecessary to 
 detain the Council long upon this Bill. It would be recollected 
 that he had brought in a Bill in 1843 for retrospectively establish- 
 ing the validity of certain wills and powers of attorney not duly 
 witnessed by seven witnesses, and for settling the mode of attesta- 
 tion which should apply after the 1st of January, 1844. Her 
 Majesty's Government had disapproved of the restrospective section, 
 and in Lord Stanley's Dispatch to His Excellency of the 18tk 
 October, 1844, His Lordship said : "You will therefore propose 
 to the Legislative Council of the Cape of Good Hope the repeai 
 of the first clause. ]f that proposal should not be accepted, it will 
 become my unwelcome duty to advise Her Majesty to disallow the 
 Ordinance altogether, although I entirely concur in the wisdom of 
 the prospective enactment it contains." In obedience to this direc- 
 tion, the Ordinance No. 1 1, of 1845, was introduced repealing .the 
 first section. The Secretary of State, however, had again intimated 
 his opinion that the law even thus altered, was still, in certain, 
 cases, retrospective ; and he has directed the present mode to be 
 adopted. That mode was a very convenient one, and he, the 
 (Attorney-General) advised the Council to pass the Bill. In a 
 memorandum addressed to His Excellency, he had explained more 
 at length his views upon the law as it now stands, and he would 
 not trouble the Council further. He moved that the Bill be read 
 a second time. 
 
 HH '
 
 ON THE JUDICIAL SYSTEM. 
 
 ON THE JUDICIAL SYSTEM. 
 
 [Legislative Council, December 15, 1845.] 
 
 The-ArTORNEY-GENERALsaid : May it please Your Excellency 
 I- rise for the purpose of moving a series of resolutions by way of 
 amendment to the re solutions proposed at our last meeting by my 
 hon. friend, the Secretary to Government. In order to put Your 
 Excellency and the Council in possession of the principles upon 
 which my resolutions are based, it will be necessary, I fear, that I 
 should occupy not a little of your time. Under these circumstances 
 I rely upon experiencing this day, what I have never asked for in 
 Tain, and never yet stood more in need of, the kind indulgence of 
 Your Excellency and the Council. The difficulties of the task 
 which has devolved upon me are manifold and great. Perhaps Sir, 
 no subject which can come under discussion is less suited for viva voce 
 discussion than that which I am about to examine, demanding, as 
 it does, a degree of clearness and precision in statement which 
 few men can extemporaneously command ; whilst the admitted 
 difficulties of the subject itself are increased, in the present instance, 
 by the consideration that the views which I am to offer to Your 
 Excellency and the Council are diametrically opposed to those 
 which are supported by my brethren of the Executive Government. 
 Nor is this all ; for I am placed under the additional embarrass- 
 ment of being called on to reply to a speech delivered, upon this 
 question, by the chief Executive officer of Government in the Colony, 
 which will demand much comment. But, having thus alluded to 
 that speech, allow me here- to say, that although, when I heard 
 it, I did consider that it contained some passages which it 
 would have been better to have modified, and some which 
 it would have been well to have suppressed, I am now, upon further 
 consideration, and making those liberal allowances to my hon. friend 
 which he, I am certain, would be prepared to make to me, very 
 happy to feel that there was nothing in that speech which should in the
 
 ON THE JUDICIAL SYSTEM. 469 
 
 smallest degree disturb that perfect harmony and excellent understand- 
 ingin which we have lived since his arrival here ; nor anything which 
 will require me to make a single observation calculated to wound his 
 feelings. With these few prefatory remarks I pass at once into 
 the argument. 1 am here, Sir, to show cause against the changes 
 sought to be made in our judicial system, changes most fitly termed^ 
 in the resolutions of my hon. friend, " organic," for certainly, 
 whatever may be thought of their principles or policy, to whatever 
 extent their necessity or wisdom may be questioned, all must un- 
 reservedly admit that if in any plan, or at any time, any changes in 
 any judicial system were ever proposed to which the phrase 
 " organic " was truly applicable, that term does accurately describe 
 the changes which are recommended in the report of the com- 
 mittee. Sir, I understand the chief of those changes to go to this 
 extent, that we should substitute the principle of a number of local 
 courts for the principle of a central Supreme Court with circuits ; 
 and no one at all conversant with the subject can require to be told 
 that in the principle of that substitution are involved some of the 
 most important considerations which jurists or legislators can con- 
 template. This sweeping innovation, this truly organic change, is 
 confessedly based upon two foundations, and but two : one being the 
 length of time during which prisoners are now confined before trial ; 
 and the other being the alleged grievance connected with the trans- 
 port of the judges by means of the impressment system. Now I at 
 once and fearlessly give my opinion, formed after the best considera- 
 tion which my faculties allow me to bestow on any subject, that it 
 those evils were to the full as great as they have been represented 
 to be in the report of the committee, and in the able and ani- 
 mated speech of my hon. friend, T should still, while regretting 
 their existence and desiring their removal, be prepared to contend 
 that it was capable of a demonstration as complete as any of which 
 the moral sciences admit, that the mischiefs which would be 
 remedied by the system proposed by the majority, would be infinitely 
 more than counterbalanced by the mischiefs which that system would 
 inevitably create. Sir, it has been lately said or written, that the judi- 
 cial Committee was proposed by Your Excellency in consequence of
 
 47 ON THE JUDICIAL SYSTEM. 
 
 public complaints. Upon this subject I may be allowed to say 
 that, mixing a good deal with the public, taking an interest in the 
 prodnctions of the press, keeping as well as I can my eyes and ears 
 cpen to see and hear what passes, I was wholly unaware, until I 
 jcad that statement, that any such complaints existed. I do, indeed> 
 remember to have seen in a paper of which the principles seem to 
 roe to be generally sound, and the literary ability such as to be a 
 credit to the Colony, some facetious and not unfair remarks touch- 
 ing the unknown nature of the law administered, a law supposed to 
 be contained in a number of books of which the public knew 
 nothing, so that what her Majesty's loving subjects were to receive 
 as law depended upon the state of the digestion of two gentlemen 
 hi Cape Town, and one who lives at Green Point. But of the 
 judicial system of the Colony, of the machinery by which justice 
 is administered, of the principle of a Supreme Court, of the consti- 
 tution of Circuit Courts, I cannot, I repeat, call to mind any com- 
 plaints whatever. What is the true history of our inquiry ? I 
 allude to this point, because it seems to me important to recall the 
 point from which we started, seeing that we have really been so 
 urged, by wind and wave, out of our course, and have so utterly 
 lost sight of our original destination, that lying here without compass 
 or rudder, it is most necessary that we should take an observation, 
 and see where we find ourselves at last. Your Excellency's Finance 
 Minute of the z8th May, 1844, which was the origin of the com- 
 mittee, is now before me. I shall not read its words. But every 
 one who refers to it, will see at a glance that is conversant with the 
 expense of the judicial system, and not with its alleged unpopularity? 
 that the thing proposed to be done was to reduce the charge of that 
 system without impairing its efficiency. Next came Your Excel- 
 lency's Minute of the 3 1st March, 1845, which is printed with the 
 proceedings of the committee, and in which Your Excellency was 
 pleased to recommend to the consideration of the committee 
 "whether the present circuit system, by which there are two 
 periodical circuits in the year, and which costs 3,000 per annum 
 in transport, is attended with beneficial consequences commen- 
 surate with its expense, or whether it may with advantage
 
 ON THE JUDICIAL SYSTEM. 471 
 
 modified." No one, Sir, who reads those two papers, and who 
 remembers the circumstances of the case, can fail to be convinced 
 that so far from its being supposed that gaol deliveries occurred too 
 seldom, it was rather supposed that they occurred too often ; that 
 the alleged hardship of" impressment and previous imprisonment were 
 matters never thought of, and that, but for quite opposite conside- 
 rations, the committee would never have been appointed, and the 
 report which I am presently to observe upon, would never have 
 been made. The views then taken were of quite another nature. 
 It was said "be your judicial system what it may, be its symmetry 
 ever so perfect, and its working ever so satisfactory, it is proved 
 by our Estimates to be a very expensive system, and it therefore 
 becomes the duty of the Executive Government to endeavour to 
 reduce the charge." The inquiry took its rise in no public com- 
 plaints whatever, much less in any public complaints connected 
 with the points upon which the report is based. But there is more 
 than this. Many witnesses were examined by the committee, 
 some by myself, more in my presence, and others when I had 
 the honour to attend Your Excellency in another place. The whole 
 of this evidence I have attentively considered, and I take upon me 
 to assert, that within the four corners of this blue-book no single 
 question will be found directed towards either of the points on 
 which the report is founded ; and that the askers and answerers 
 were alike innocent of any idea that the committee was to 'consider 
 and report upon either of these points. A great deal we had about 
 trial by jury in civil cases in Cape Town and Graham's Town ; a 
 great deal about district sessions ; a great deal about a 
 judge for the Eastern Province ; a great deal about additional 
 magistrates and increase to their jurisdiction ; a great deal 
 about the use of a grand jury, and the abolition of the clerks 
 of the peace ; but about the evils of previous detention 
 of prisoners before trial, or the complaints regarding impressment for 
 judges' transport, we had nothing. An inquiry, commenced as I 
 have stated, was most laboriously conducted for a long space of time ; 
 and was at length closed without a single syllable having been 
 breathed by any member, or by any witness, in reference to the
 
 47 2 ON THE JUDICIAL SYSTEM. 
 
 mischiefs now relied upon as demanding changes, or as to the 
 organic changes which are said to be demanded. Is not this extra- 
 ordinary ? Can any parallel for it be produced ? With me, even 
 had I no other objection to these changes, this objection would be 
 fatal. We examined largely, we put all sorts of questions to all 
 sorts of people, we had much important evidence, we had much 
 more surplusage, a matter of which I do not complain, since 
 in an inquiry of that kind you can never have enough without having 
 too much ; bur if it had, at any period of the investigation, crossed 
 my mind that such a change as the suppression of a Supreme 
 Court, and the substitution of five local courts instead, cou*ld 
 be seriously contemplated, I would have said, " Do not close 
 yet, you are awfully precipitate ; let us have back the wit- 
 nesses, let us hear what they have to say to these evils 
 let us hear what they have to say to your remedies, let us 
 call again for the judges, let us summon our capital ists and merchants, 
 let us have the opinions of the bar and the attorneys, before we 
 determine on organic changes such as those which have been 
 broached ; let us not spare another month, or three weeks, in order 
 to be accurately informed of their nature and effect." But we are 
 spared all that, and, behold, at the eleventh hour up starts a report 
 based upon two points not inquired into, and suggesting organic 
 changes to the character of which we did not examine a single 
 witness. In truth, sir, the whole proceeding, though I had nothing 
 to do with it, seems most Irish ; and a report founded, not upon 
 what was in evidence, but what was not, may be called, with great 
 propriety, an Irish report. It is curious to perceive the quarter from 
 whence the light seems to have first broke. Mr Justice Menzies was 
 examined by my hon. friend the Secretary to Government touching 
 an increase in the jurisdiction of the resident magistrates. In his 
 evidence upon this subject he referred to certain returns formerly 
 obtained by him, by which it appeared that prisoners were detained 
 in custody previous to trial upon an average ic>5-|- days. I have never 
 heard that the learned judge who afforded this evidence blushed 
 as he gave it in, nor does it seem to have struck any member of 
 the committee with instant astonishment and horror. Upon the
 
 ON THE JUDICIAL SYSTEM. 47J 
 
 l8th of May Mr. Menzies made this statement. What immediate 
 effect did it produce ? Did it even strike the members as proving 
 that at least two circuits were indispensable ? It would appear not,, 
 and I advert to this because, when I am labouring to reduce things 
 to their true proportions, it is important that I should call upon my 
 hon. friends to examine their own minds, and see whether they 
 may not have allowed themselves to magnify unduly certain matters 
 which have thus come to occupy a space in their contemplation 
 which they do not naturally fill. Sir, on the a6th of May, ten days 
 afterwards, the examination of Mr. Menzies was resumed ; and then,, 
 with the 105^ days in evidence before him, my hon. friend the 
 Chairman's first question was, "Will you favour the committee with 
 your opinion as to the expediency of reducing the circuits to one 
 in the year ?" Now it is quits true that my hon. friend while 
 asking this question, may have been himself quite convinced that 
 instead of one circuit being sufficient, four circuits were essential. 
 But at the same time, seeing that the next question had reference 
 to special commissions instead of any regular circuits, and knowing 
 the fearless, candid, and straightforward way in which my hon.. 
 friend always comes to his point, I am of opinion that the revelation 
 made by Mr. Justice Menzies, instead of seeming to require such 
 organic changes as he now advocates, did not appear to call impera- 
 tively for the continuance of two circuits in the year. Now under 
 those circumstances I must say, not by way of imputing blame, but 
 in the exercise of that freedom which my sense of duty requires me 
 to use, that the conduct of the majority is chargeable with undue 
 precipitancy. Mr. Menzies had produced returns prepared 1 3 years ago.. 
 These returns showed an average previous detention of 1 05^ days. That 
 detention had not, for a considerable time, attracted notice. But 
 for myself I will say, if further reflection had at length opened my 
 eyes to the iniquity of that which I had not, at first, felt to be a 
 grievance, I should, I think, have said, " Before resorting to 
 organic changes, let me get further returns ; let me ascertain how 
 the results obtained thirteen years ago harmonize with the results 
 which are now experienced ;" and not all my respect for the 
 majority of the committee can withhold me from saying that it seems
 
 474 . ON THE JUDICIAL SYSTEM. 
 
 not a little rash and ill-considered, first to assume the accuracy of 
 those old returns, and then to assume that what was true thirteen years 
 ago must be true now ; and then to come in with organic changes, 
 based avowedly on these assumptions, without taking one tittle of 
 evidence upon the nature and probable operation of those changes. 
 Further returns, I believe, are now ordered. When they shall 
 have been prepared, Your Excellency will doubtless submit them 
 to this Council ; and until then, it will be prudent to avoid 
 speculating upon the results which they will probably disclose- 
 But in regard to the evils of detention previous to trial, I cannot 
 hesitate to say, at once, that they have been, in my opinion, much 
 exaggerated. This, Sir, is an important point, and I shall proceed 
 to give my reasons for the opinion I advance. I begin by sub- 
 mitting that it is only to innocent men that this previous imprison- 
 ment can be considered as a hardship. To guilty men, to men 
 finally sentenced to a further and more severe punishment, in the 
 measurement of which this previous punishment is taken into 
 account, to such men, I say, it would be absurd to argue that their 
 confinement before trial is a hardship. What, then, is every sound 
 system of justice bound to do ? It is, I conceive, bound to do this : 
 to make a most searching, complete, and impartial inquiry into th e 
 charge brought against the accused party, so as not to incarcerate 
 any man without due proof of guilt ; but having done that, and 
 elicited such proof of criminality as might, in general, almost 
 warrant a final sentence, I am slowtoseehow a few days' detention, 
 more or less, can bedeemed to be an object of such importance as to 
 call for organic changes. How does the system of this Colony fulfil the 
 condition spoken of? I think completely. England has been referred 
 to, and comparisons have been thence derived very unfavourable to the 
 Colony. But I contend that the practice in England is not, in refer- 
 ence to confinement before trial, so careful of the liberty of the sub- 
 ject as the practice here. Why? Because in England the committing 
 magistrate is usually not s-.tipendiary, but one of the class whom the 
 newspapers call " the great unpaid," and whatever my hon. friend the 
 Secretary to Government may say, unpaid magistral es have not the 
 same sense of responsibility as magistrates who are salaried. When
 
 ON THE JUDICIAL SYSTEM. 475 
 
 the magistrate has once committed the man to gaol, there he lies until 
 a bill of indictment is preferred against him before a grand jury, and 
 he is either discharged by their finding, o r sent at once to the petit 
 jury. Contrast with this the course of proceeding in this Colony. 
 The clerk of the peace, a public officer, appointed, not to get con- 
 victions or to press points against accused men, as private prosecutors 
 will, but to be as careful that the innocent are protected as that the 
 guilty are brought to justice, has his duties defined by Ordinance 40, 
 section 30. He is enjoined to bring before the investigating magistrate 
 not merely all witnesses against the accused, or such witnesses 
 as shall suffice to establish a prima fade case against him, but all 
 witnesses who know anything about the case ; in order that the 
 magistrate shall have, when he comes in his turn to do his duty, as 
 much evidence on every side as can be obtained. No such functionary 
 as our clerk of the peace exists in England. I have said that if any 
 clerk of the peace should forget that he acts for public justice and 
 not against alleged criminals, he violates his duty. But a sort of 
 professional feeling may be imparted to him by his ordinary duty ; 
 he may 'insensibly lose his impartiality by acting as a prosecutor ; 
 and lest he should do so, there is the magistrate to check him. He 
 is responsible, he is calm, he has nothing to pervert his judgment, 
 and even if the clerk of the peace should press him to commit, he will 
 not commit, unless he sees good grounds. Is this all ? No. As soon 
 as the preparatory examination is completed, it is laid before the 
 Attorney-General for his consideration. Should it appear to him 
 that the evidence is defective, he orders at once the liberation of 
 the prisoner. Is any such practice known in England ? Sir, the 
 Attorney-General of England would stare if he were called upon to 
 read all depositions taken in every case in which the prisone r 
 was committed for trial. But the law of this Colony imposes upon me 
 the duty discharged by the Lord Advocate in Scotland, a duty dis- 
 charged inefficiently perhaps, but I will say honestly and anxiously, and 
 with a constant care to perform what are, in fact, the functions of a 
 grandjury, not, give me leave to say, at the railway rate at which, at 
 home, grand j uries frequently find bills, but with all possible crcumspec- 
 tion and deliberation. Why, Sir, there have been times and countries,
 
 47^ OH THE JUDICIAL SYSTEM. 
 
 and those neither distant nor unenlightened, in which such a severe 
 and satisfactory inquiry as I have described would have been deemed 
 sufficient to justify the pronouncing of a final sentence of con- 
 demnation. Allow me to say, then, that however plausible it may 
 sound to expatiate upon the grievance of so long confining untried 
 men, the nature and magnitude of that grievance cannot be fairly 
 represented or fully understood unless the safeguards which we 
 provide against oppression and injustice are also taken into account. 
 Innocent men, it may be safely asserted, are very rarely, almost 
 never, kept in prison in this Colony. Test this, Sir, by comparing 
 the committals with the acquittals. In the report which we of the 
 minority proposed, we state that the only English returns we could 
 find were for the years 1834 and 1835, and that in those years 28^- 
 per cent of the numbers committed for trial were ultimately 
 acquitted, while, owing to the precautionary practice of this Colony, 
 the proportion of acquittals to committals, so far as we had returns, 
 was under 9 per cent. In his able speech the other day my hon. 
 friend (the Secretary to Government) fell foul, to use a vulgar 
 phrase, of this calculation, and he argues that in giving 9 per 
 cent, we are much under the truth, and that the real proportion is 33 
 per cent. I was somewhat startled to hear this ; but when my hon. 
 friend proceeded to make out his 33 percent, I became comfortable, 
 for I found that his first step was to charge against me as acquittals 
 all the cases which, after reading the depositions, the Attorney- 
 General had remitted for trial under the summary jurisdiction of the 
 magistrate's court. Now, I must express my wonder at the process 
 by which these cases came to be considered as acquittals, because it 
 is notorious (I speak in the hearing of several magistrates and 
 clerks of the peace) that acquittals in remitted cases are almost 
 entirely unknown. They are always plain cases of the pettier sorts 
 of crime. Doubtless if my hon. friend will insist upon counting these 
 cases against me, that is, if he will add to his acquittals a number 
 of cases in which there were convictions, and then call the sum total 
 all acquittals, he may undoubtedly make out his 33 per cent. But 
 I say that the proper way of estimating the matter is not to charge me 
 with, but to give me credit for, the remitted cases, to account them
 
 ON THE JUDICIAL SYSTEM. 477 
 
 to be, what they really are, convictions ; and then the proportion 
 of acquittals to convictions, instead of being 9 per cent, will be 
 reduced below 7 per cent. But besides charging me with the re- 
 mitted cases, my hon. friend charged me also with all untried 
 cases. Prisoners die ; prisoners escape from custody ; prisoners 
 whose guilt is manifest are discharged because witnesses have died 
 or left the Colony. But all such cases my hon. friend claims as 
 acquittals. I wholly deny the justice of his claim. But if I were to 
 make him a present of the untried cases, the acquittals would still, 
 instead of 33 per cent, be under 17 per cent. Sir, 1 hold in my 
 hand a return which has been prepared in my office, to which I 
 shall presently call the attention of the Council, in reference to the 
 number of days for which prisoners were, for the last two years, con- 
 fined previous to trial, but appended to the table is a memorandum 
 relative to the circumstances under which prisoners are sometimes 
 not tried, sometimes acquitted, which I shall, with Your Excel- 
 lency's permission, read to the Council : 
 
 " Of the 215 prisoners confined in the country districts for more 
 than 100 days during the three years alluded to, 166 were con- 
 victed ; 2 escaped from custody ; 3 died in jaol ; 4 remained in 
 custody, their trial having been postponed ; 16 were not brought to 
 trial, and 24 were acquitted. 
 
 " Of the 1 6 not brought to trial, 3 were ordered to be liberated 
 upon the instant that certain depositions in their favour were received 
 2 were reluctantly discharged, the evidence being considered 
 insufficient legally to establish almost manifest guilt ; i, although 
 indicted, was not proceeded against, a joint-offender having pleaded 
 guilty, and the previous imprisonment of the other being con- 
 sidered a sufficient punishment in this case, in which there were 
 mitigating circumstances ; I (a case of perjury) was ordered to be 
 liberated, the public prosecutor considering the imprisonment 
 already suffered a sufficient punishment under the circumstances of 
 the case ; I (a case of malicious injury to property), although in. 
 dieted, was ultimately liberated, the witnesses not appearing at the 
 trial, bail being therefore given for the accused, and the injured 
 party interfering in his favour on the ground of subsequent good
 
 478 ON THE JUDICIAL SYSTEM. 
 
 conduct ; 4 were discharged after indictment, the witnesses upon 
 whose evidence they were indicted failing to appear at the second 
 sitting of court subsequent to commitment ; 2 were liberated with- 
 out trial, after indictment, there being no sufficient evidence to 
 establish the fact that they were British-born subjects, so as to render 
 them liable for undeniable offences committed by them beyond 
 the boundary, Against one the indictment was withdrawn, a 
 theft of wine having been charged, instead of a theft of brandy 
 He might have been tried again but he was liberated at once, it 
 being considered that further imprisonment would be a hardship. 
 In the 1 6th case, one charging the receiving of stolen goods, it 
 transpired that the accused was the reputed wife of the thief, and 
 she was allowed an advantage not claimable by law. 
 
 "Of the 25 acquittals, one was the consequence of the evidence 
 on the trial varying in some degree from that given before the magis- 
 trate, together with a doubt as to whether the accused had had that 
 kind of possession of the article which is necessary to charge theft. 
 
 "In another case the witnesses could not identify the prisoner 
 (a soldier), although they swore to him before the magistrate. 
 
 "In another case, including two prisoners, the indictment alleged 
 the property (a cow) to be that one Roux (a wandering trader) or 
 otherwise of some person or persons to the prosecutor unknown. 
 The court said that the prosecutor should have alleged the owner- 
 ship in the one way or the other, and suggested that a verdict of 
 not guilty should be returned, especially as the evidence was 
 circumstantial. 
 
 "In another case the acquittal was consequent upon the non-attend- 
 ance of the principal witness. 
 
 "In another, where two prisoners were indicted for a joint act^ 
 the principal witness was found the reputed wife of one of them, 
 and it was considered that her evidence should not be used against 
 him ; and he was acquitted, while his brother thief was convicted. 
 
 *'In a case of rape the evidence fully substantiated the assault. 
 But the injured party (a child) not being able to swear that there 
 was emission as well as penetration, the criminal was acquitted. 
 
 " In another case (rape also) the complainant admitted that she
 
 ON THE JUDICIAL SYSTEM. 4.79 
 
 had continued to reside under the same roof with the accused (who 
 was the reputed husband of her aunt) after he had twice assaulted 
 her against her will, and this naturally threw so much discredit 
 upon her character, that the prisoner was acquitted. 
 
 " In a case including three prisoners, there was an acquittal, 
 although the evidence left very little moral doubt of guilt. The 
 remains of a heifer were found and by it the spoor of three persons 
 which answered exactly to that of the three prisoners, who had, 
 moreover, been seen near the spot on the day in question. Beef, 
 too, had been seen in their possession, a fact which they at first 
 denied, but which was afterwards admitted by one of them, in the 
 presence of the others, saying that it was flesh of a heifer that they 
 had found vultures devouring. 
 
 " In a case of assault with intent to murder, the indictment stated 
 the injured party to be Damon, instead of Jacob Damon, and of 
 course there was an acquittal. The offender might have been 
 indicted afresh. But he was young, and his imprisonment had been 
 a lengthened one ; and on these grounds the court considered that 
 he should be discharged. 
 
 " In one case the acquittal was the consequence of the destruc- 
 tion of a coffee bag. The prisoner and another (both soldiers) 
 were seen on a certain night carrying a bag evidently containing 
 coffee, in the direction of the barracks at Colesberg, and there a 
 bag of coffee was subsequently found concealed. No report was- 
 made to the clerk of the peace ; the coffee remaining for some time 
 in the guard room, awaiting a claimant. It was then used up by 
 the men, and the bag was thrown away. The owner of the pro- 
 perty, who had been beyond the boundary, discovered his loss on 
 his return to Colesberg ; inquiry being instituted, the prisoner was 
 apprehended (the other alleged offender having made his escape), 
 He was brought to trial ; and upon the evidence there was no doubt 
 whatever that he had stolen a bag of coffee. But through the non- 
 production of the coffee-bag, it could not be made incontrovertibly 
 clear that the property stolen was that of the party alleged in the 
 indictment ; and the rogue was acquitted. 
 
 "In two cases of murder, there were acquittals although the
 
 .480 ON THE JUDICIAL SYSTEM. 
 
 circumstances were of a very grave nature as they affected the 
 accused. In one of these the jury came to the conclusion that the 
 deceased had stabbed himself in the course of a quarrel with the 
 a ccused, who had induced the other's reputed wife to cohabit with 
 him. Note. It is now remembered that the other party acquitted 
 on the charge of murder was bailed by the Supreme Court, and 
 that he was imprisoned for much less than loo days. 
 
 "In a case of arson, one of the prisoners was acquitted. She was 
 alleged to have spirited up the two others (children) to commit the 
 offence. But the evidence on the trial was materially different from 
 that before the magistrate. 
 
 "In eight cases the grounds of acquittal arc not stated. 
 
 "The average detention of prisoners confined for periods exceed- 
 ing 100 days is by the returns already printed, 180.87 > by the 
 returns for the last two years, 151.14. The greatest number of 
 days of detention, according to the former, is 465 : by the latter 
 the highest case appears to be 368. This excess of twelve months 
 by three days, was owing to the fact that the spring circuit court 
 for Graaff Reinet sat in the September of one year, and in the 
 October of the next ; there having been a postponement of the 
 particular case in question at the intermediate sitting." 
 
 So far as this memorandum goes, it throws, I think, some light 
 upon the hardship of previous confinement in this Colony. Another 
 point should not pass unnoticed. In the three years embraced in 
 the return in my hand there were 51 acquittals, and out of these 
 no fewer than 28, or 55 per cent, of the whole, were cases in which 
 the accused were bailed in the first instance, and never committed 
 at all. In all probability more were bailed after commitment ; but 
 of these cases I have no cognizance, since it is only when the 
 party is bailed at the moment that I learnt the fact; but not to 
 insist upon this, it is enough to say, that if your acquittals are below 
 9 per cent of your committals, and if at last 55 per cent, of your 
 acquittals are cases in which there never was an hour's imprison- 
 ment, it may well be doubted whether the facts can be deemed to 
 bear out all the strong statements of the report of the committee, 
 and of my hon. friend in his animated speech the other day. To
 
 ON THE JUDICIAL SYSTEM. .4*81 
 
 guilty men, I repeat, that previous imprisonment is no hardship. 
 It is invariably taken into account by the presiding judge in passing 
 what he considers a fitting sentence. Were there actual convictions 
 in every case, no man could gravely speak about a grievance, arid 
 taking into account the actual state of things, I must say -that we 
 must put our sympathies to the torture before we can be moved, to 
 such a degree as to disorganize established, important, and' useful 
 institutions, in order that such prisoners as we are speaking of - shooH 
 be tried some days earlier than they are at present. So^mucL *s to 
 the class of men, now as to the time of their detention. ^Returns* 
 as I have already said, are called for, and in course of preparation, 
 intended to take up the subject where Mr. Justice 'Menzies left 
 it, and to exhibit the working of more modern practice. Here f 
 refer again to the return cdmpiled from the records in my office, 
 which I have already quoted for another purpose. It shows the 
 number of days, prior to trial or enlargemernt, for which each. 
 prisoner was confined for the two years ending with the close of 
 last circuit. This return will lie on the tabl-e for the infonnaliom 
 of the Council ; but, in the meantime, I shall give its results. Im 
 Albany, the majority assume an average of 141*9 days. This return 
 gives 106*16 days, being a difference of 34*93. In Uitenhage the 
 majority assume an average of 1 1 5*56 days. This return gives 84-91 
 days, being a difference of 30*65 days. In Somerset the majority 
 assume 1 53*8 days. This return gives 1 1 5*43 days, being a difference 
 of 37*65 days. In Graaff-Reinet the majority assume 133*4 days. 
 This return gives 1 11*50 days, being a difference of 21*5 days. Im 
 Stellenbosch the majority assume 98 'I days. This return gives 
 8 1 '88, being a difference of 16-13 days. In George the majority 
 assume 83*9 days. This return gives 77*50 days, being a diffe- 
 rence of 5*59 days. In Swellendam the majority assume izyx 
 days. This return gives 70*95 days, being a difference of 56-7 
 days. In Beaufort the majority assume 178-13 days. This retro* 
 gives 84*66, being a difference of 93-47 days. In Clanwilliam the 
 majority assume 181 6 days. This return gives 105*27, beings 
 difference of 75*79 days. The only casein which the majority's 
 average is sustained is that of Worcester, and then, for special 
 
 it
 
 ON THE JUDICIAL SYSTEM. 
 
 reasons which it would be tedious to explain, the average of this 
 return gives two days imprisonment more than the average of the 
 majority. Now, Sir, having shown you the sort of characters 
 who are subjected to this previous imprisonment, and given you 
 some reason for believing that the length of that imprisonment 
 is less than has been represented, I put it to this Council, I 
 put it to this Colony, whether, in order by four circuits to save some 
 thirty or forty days of such confinement (should it be possible to 
 save so many, which I doubt), it is expedient to destroy the whole 
 judicial system of the Colony, and introduce organic changes ? But 
 I shall be told, "you have talked only about criminals ; what do you 
 say to witnesses r" Sir, I have very little to say to witnesses. By 
 an ordinance of this Colony passed while there were, as now, but 
 two circuits, and passed I believe without opposition, it is provided 
 that when any important witness, in any important case, is a per- 
 son who, from wandering habits, probability of being corrupted, or 
 other cause, is not likely to be forthcoming at the trial, it is 
 competent for the magistrate to require some security for the wit- 
 ness's appearance ; and, in default of such security being given, 
 to commit to prison. Such is the reason of the law, and such is the 
 e-xtent of the law. If you do not like the reason, repeal the law. 
 But, in my opinion, it will be far Simpler, and far better, to repeal 
 the law than to repeal the Charter of Justice break up the Su- 
 preme Court and change the whole judicial system of the Colony. 
 And here, Sir, I complain that my hon. friend has fallen into 
 unintentional exaggeration. I think that more is made of the im- 
 prisonment of witnesses than the circumstances will warrant. By 
 the return inserted in the proceedings of the committee, it will be 
 seen that in Wynberg no witnesses ever were committed ; in 
 Malmcsbury none ; in Clanwilliam none ; in Beaufort none ; in 
 Swellendam none ; in Caledon none ; in Port Elizabeth none, and 
 in Albany none, for the last three years, In all the districts 
 d-uring 1842, 1843, and 1844, 79 witnesses were imprisoned, 
 of whom no fewer than 35 were imprisoned in Cradock, where, the 
 resident magistrate states, " nearly the whole of the abovenamed 
 individuals were allowed to remain outside the prison, some on
 
 ON THE JUDICIAL SYSTEM. 483 
 
 bail, and others in charge of the gaoler." Now, however bad in 
 principle the confinement of witnesses may be, and I for one con- 
 sider it to be very bad, I put it to any man who hears me, whether or 
 not the mischief is not exaggerated ; in truth, the evil, considered 
 in itself, is not, and would not be deemed to be such a mighty 
 mischief, but for circumstances which have no natural connection 
 with confinement. But my hon. friend, in one of the most striking 
 passages of his speech, described in detail, as applicable alike to 
 prisoners and witnesses (I hope with some inaccuracy as regards 
 the latter), a course of treatment in the prisons of the Colony against 
 which the feelings of every humane man revolt. He described the 
 fetters, the chain, the bar, to which men, innocent or untried, were 
 fastened, and the misery of the position in which they were com- 
 pelled to be kept each night, in order to prevent them from escap- 
 ing. Now all this is very bad. But what has all this to do with 
 the judicial system ? Sir, it has nothing to do with the j udicial system, 
 but is a matter for which, if any party be responsible, it is the 
 Executive Government. And while I deplore such a state of the gaols 
 as renders such treatment necessary, while I deem it to be a great 
 and gross grievance, and while I look forward to some speedy measuro 
 for abating the monstrous nuisance, a sense of justice to the Govern- 
 ment and the public which have tolerated such a state of things so 
 long, will not allow me to refrain from alluding to the slow advance 
 of improvement in regard to prisons and prison discipline in Eng- 
 land. It was in 1783,! think, that Howard gave the world his 
 book, revealing the melancholy state of the prisons as well in Eng- 
 land as on the continent. From that time much attention was de- 
 voted to the subject in connection with which the illustrious author 
 has made his name immortal in the annals of benevolence. But 
 till a comparatively late period, much remained to be accomplished. 
 In a work which its unpretending title does not prevent me from 
 quoting, a work of much convenience to persons who have not 
 access to parliamentary papers and reports, and from which I infer 
 my hon. friend obtained the table, showing the average duration 
 of imprisonment in England to which he referred, the Penjsy Cyclo- 
 pedia, I find the following passage under the title " Transportation." 
 
 II 2
 
 4.84. ON THE JUDICIAL SYSTEM. 
 
 Sir, I am disappointed. I have, unfortunately, brought with me a 
 wrong volume. But I can remember enough of what I read to tell 
 you that in 1823 there were many prisons in England in which 
 there was no separation between males and females, many in 
 which the inmates were miserably overcrowded, many in which 
 prisoners on their first reception were fettered with double irons, 
 from 10 Ib. to 14 Ib. weight, and chained to the floor all nrght. 
 The description of my hon. friend, strong as it was, would be scarcely 
 strong enough for what was common, even in England, so late as 
 1823. Sir, such things in England are better ordered now. How 
 came the change to pass ? Was it by dismembering Westminster 
 Hall ? Was it by cutting up the country into twelve judicial circles, 
 and putting one of the twelve judges into each ? No such thing. 
 They took another course, too obvious and old-fashioned, perhaps, to 
 please the majority of the committee, but yet upon the whole a 
 good one ; they improved their prisons, Sir, and brought them into- 
 such a state that prisoners might be detained without being tortured. 
 This matter concerning our public prisons has been often before this 
 Council. It will be in the recollection of several members, that 
 when the then Executive endeavoured to prevail upon Her Majesty's 
 Government to consent to the re-issue of a part of the colonial 
 paper money for the promotion of public work, General Bell drew 
 up an able memorandum, in which he showed, amongst other things- 
 that money was imperatively needed in order to raise from their 
 disgraceful state the prisons of .the Colony. Since then the subject 
 has been often mentioned. I myself remember to have called 
 attention to it in reference to such scenes as my hon. friend has 
 himself depicted, and to have illustrated the condition of our prisons 
 by an absurd extract I had read from some American paper, to the 
 effect that a prisoner in a certain gaol, which was specified, had 
 written to the sheriff, stating that unless something were done with- 
 out delay to the walls, he would unquestionably stay no longer, as it 
 was with the utmost difficulty he could keep himself confined. The 
 story is not worth repeating, except to recall the conversation. Now, 
 from the nature of the case, might we not have expected from the 
 majority some movement towards the improvement of our gaols ? But,
 
 ON THE JUDICIAL SYSTEM. 485 
 
 no. The mischief is mentioned in the report, but the report is silent 
 as to a remedy ; and the allusion to the subject in the able speech 
 -of my hon. friend is equally unpromising. " If it is necessary/' 
 he says (I quote from the Cape Town Mail), " that persons should 
 be so secured when apprehended, and our poverty will not enable us 
 either to maintain a sufficient police to guard them, or to build 
 some secure gaols for keeping them in without resorting to such 
 means, the next best thing to be done is to take the most effectual 
 means for keeping them there the shortest possible period." I do 
 not consider that we are in such poverty as my hon. friend supposes ; 
 and it certainly does strike my humble understanding that it would 
 have been more safe, more rational, and more practical, to have 
 determined to improve the gaols, rather than leaving them as they 
 are, to give four circuits. Premises are stated from which I, as an 
 Irishman, and so, I suppose, given to blundering, would have de- 
 duced the necessity of building prisons; but no, rather than build 
 prisons we prefer to break down courts. What will be the con- 
 sequence ? Why, were you to create your local courts to-morrow, 
 and to give four circuits, even then, if there is to be a reference 
 of the case to the Attorney-General for the preparation of the 
 indictment, a previous imprisonment of at least forty days will, upon 
 the average, still take place. Now are you prepared to allow 
 untried men to be fettered each night, in order to be loosed each 
 morning, for an average of forty days ? Can you satisfy yourselves by 
 saying that you will reduce the term of torture illegal torture, I 
 call it, upon the authority of Lord Coke but that for the reduced 
 term it shall continue ? Sir, if circumstances were altered, if our gaols 
 were a credit to the Colony instead of being a disgrace, if we had the 
 means of classifying the inmates, if we could show separate apart- 
 ments for witnesses, if we could keep criminals of one description 
 free from contact with criminals of another, then I should feel that 
 my task this day was greatly lightened, having no longer to contend 
 against the impression which the manner of confinement in our 
 prisons, although a matter wholly beside the judicial system, is cal- 
 culated to produce. But many persons who will not pause to 
 weigh and consider the real merits of the case, will be carried
 
 486 ON THE JUDICIAL SYSTEM. 
 
 away by their just dislike of stocks and fetters, and forget that 
 such things are no part of any judicial system whatever, and should 
 not be tolerated for an hour after they can be spared. Upon this- 
 subject I appeal to you to act as men of understanding. Build 
 gaols, I implore you, before you build castles in the air ; build 
 gaols, I implore you, before you build breakwaters in the sea ; build 
 gaols, I implore you, before you Ireak down strong courts. Sir, 
 one of the resolutions which I shall propose before I sit down, will 
 be directed to this subject ; and I shall now leave it to the favour- 
 able consideration of Your Excellency and the Council, with only 
 this further remark, that while it clearly is a subject deserving of 
 immediate attention, it is one which has no legitimate connection 
 with the judicial system now established in the Colony. Reverting 
 to the question of previous confinement, and the comparisqn in- 
 stituted by my hon. friend between England and this Colony, I 
 would caution the Council against looking exclusively to ratios and 
 averages, instead of to absolute numbers. When we say that in 
 England there are but two circuits in the year, we are told that 
 we forget the large powers belonging to the courts of quarter 
 sessions, and the large proportion of criminal cases of which 
 those courts dispose. My hon. friend falls back upon comparative 
 percentages, and tells me that a much larger proportion of prisoners 
 is detained in this Colony for a given space of time than is detained 
 in England for the same space of time. This certainly is one 
 way of considering the subject. Eut, for the purpose of the present 
 argument, I do not consider it to be the only way. There are in 
 England certain cases which are sent to the assizes and not to 
 sessions. The assizes are held but twice a year, and in the four 
 great northern counties, with their dense population and large amount 
 of crime, the assizes, until a comparatively recent period,were held 
 but once. Now looking to percentages and proportions, my hon. 
 friend may show me that a larger ratio of our prisoners are detained 
 for upwards of 100 days than is the case in England. But he 
 cannot show me that for one man who is, in this Colony, detained 
 on account of half-yearly circuits, there are not ten men in England 
 detained on account of half-yearly circuits. Now, when this matter
 
 THE JUDICIAL SYSTEM. 
 
 is pressed upon us as a matter of principle, as a matter independent 
 of expediency, and in which justice is involved, I ask whether 
 the crime of England is not, .in the face of men and angels, ten. 
 times greater than the crime of this Colony, considering how 
 carefully our judicial system confines committals to the almost 
 necessarily guilty ? Compare, again, the effects likely to be pro- 
 duced by the imprisonment of untried men in England, with the 
 effects likely to be produced by the imprisonment of untried men 
 in this Colony. Can it reasonably be doubted that such imprison- 
 ment is more felt by prisoners in England than i: is by prisoners 
 here ? Let me not be misunderstood. I should be sorry to be thought 
 to view with indifference, much less contempt, the feelings of men of 
 any class or colour. Do I forget my principles, which are those of a 
 thoroughgoing philanthropist, as we commonly call them, when 1 say 
 that the circumstances and condition of our lower order in this Colony 
 are such as to make previous confinement in a prison, with prison 
 rations, by no means so irksome a thing as it Is felt in England ? 
 Let it not be said that I am reflecting upon the poor man, or care- 
 less about the treatment of Hottentots, or late slaves. Not * . 
 'Far from it. Why, in my own country, the question ofprisoi 
 rationing has been notoriously embarrassed by the difficulty of 
 fixing it upon such a scale as should g've good and sufficient food 
 and at the same time such as should not diminish the dislike of 
 going to gaol. As an Irishman, I grieve for this ; but I do not 
 reproach my countrymen with their poverty. I cast no imputation 
 upon Hottentot or late apprentice when I say that to be supported 
 in idleness is not felt by them generally to be a grievance, evea 
 though supported in prison ; and I conceive that the Secretary to 
 Government was correct in stating that they did not deem the 
 previous confinement a positive hardship. The statement of 
 my hon. friend has attracted the notice of the able writer 
 to whom I alluded in a previous part of this address. He 
 holds it to be absurd to say that men do not dislike gaols whom 
 you fetter to keep there. This is certainly plausible, and perhaps 
 sound. But I have two answers to offer to it ; one, that although 
 it were perfectly certain that a large majority of prisoners would
 
 ON THE JUDICIAL SYSTEM. 
 
 wish to escape, yet that for the sake of the one or two who 
 desert, you must indiscriminately secure the whole ; and the 
 otter, that a man who feels his present state, considered in itself> 
 ot to be a bad one, may yet wish to escape from it in order to 
 avoid some future punishment which he apprehends ; so that he 
 wbo would not object to be the idle guest of the gaoler, may very 
 consistently object to an introduction to t he judge. But am I argu. 
 ing that previous confinement is not an evil? By no means; I am 
 wsJy endeavouring to reduce the evil to its real magnitude. I admit 
 Aatit is an evil, to be still farther reduced by every safe and pro" 
 ycr mode that we can devise. I know that in the eye of the law 
 erejy man, no matter how careful our preliminary processes, is to 
 be deemed innocent until he is proved guilty, and therefore that 
 K* confinement before his final sentence should be as short as 
 possible. I know that when the interval in question is much pro- 
 tracted, evidence sometimes escapes, and the ends of justice are 
 defeated. I know that a long delay between commitment and trial 
 is injurious, because it interposes a gulf between delinquency and 
 KfonisKnient. But taking into account all the circumstances of the 
 case,- I must say, as a practical man, that while I should gladly 
 diminish the period of previous imprisonment, I cannot consent to 
 <fiminish it by the dangerous means which my hon. friend suggests. 
 Sir, in reference to this subject the minority of the committee have 
 stated, ia the report proposed by me, that considering the few 
 criminal cases- in this Colony, criminal sessions may possibly be 
 keld too frequently. I need not say, what is very well known, that 
 fcrthe passage in question I am exclusively responsible. This pas- 
 sage had the misfortune to attract the attention, and I think I may 
 *rp, to excite the indignation, of my hon. friend, who made some 
 cry strong remarks upon it. He will not think, nor will Your Ex- 
 cellency or the Council think, that I overstep the wholesome limits 
 within which it is my wish to walk, when I give my opinion that> 
 ia saying that he would not, for the whole Colony, have signed a 
 aeport containing such a passage, that he would rather have lost his 
 Itamd than have done so, and so on, he fell into the error of con- 
 founding things which common justice requires to be kept separate ;
 
 ON THE JUDICIAL SYSTEM. 489 
 
 and visited what he should have deemed, at worst, an unintentional 
 mistake, with a severity of censure that ought to be reserved for 
 some wilful violation of the laws of morality and honour. I was the 
 more sorry for the tone which my hon. friend assumed in icference 
 to this passage, because it seemed to me to have led him to lose 
 sight in some degree of his usual fairness, and, while abstaining 
 from reading the whole clause, to have fastened on one phrase, in 
 a manner usual enough - with opposing parties in the House o* 
 Commons, but which is not customary amongst public servants* 
 and which I therefore had not expected from my hon. friend. I 
 shall now, Sir, read the passage which had the misfortune to strike 
 my hon. friend as so disgraceful. " Your committee are disposed 
 to think that considering the paucity of criminal cases in this 
 Colony, and particularly in the country districts, criminal session 8 
 may possibly be held too frequently. Except so far as by the tria 
 and punishment of offenders, the minds of the mass are educated 
 into a state in which, anterior to all reasoning about consequences, 
 crime comes, by a sort of moral instinct, to be regarded as a thing 
 not to be committed, trials and punishments entailed an almost use- 
 less amount of suffering and expense. The trial, therefore, as well 
 as the punishment, should be public, and should be witnessed by 
 the public. Whe n solemn sittings are held at intervals, during which 
 such a number of cases has arisen as will attract an audience and 
 fix attention, salutary lessons may be given, which could not be 
 inculcated if cases were to be disposed of pretty much as they come 
 in, in the presence merely of the parties interested, the officers of the 
 court, and such loungers as might straggle in." And now, Sir, having 
 read the whole of the obnoxious paragraph, I am not prepared to say 
 that there is anything in the sentiment or spirit of it of which I 
 ought to be ashamed. But I now perceive that it contains a very 
 infelicitous expression. I allude to the words "attract an 
 audience." These words have unhappily a theatrical sound, and 
 are associated with scenes got up for public entertainment. They 
 look as if we were viewing trials in which the lives and liberties of 
 men are involved, as we would view a play to be performed for 
 amusement. Need I assure you, Sir, that this notion, which was at
 
 49 ON THE JUDICIAL SYSTEM. 
 
 the bottom of all the Secretary said, was far, very far, from my 
 mind when I penned the passage? But it speaks fcr itself, and 
 I shall say no more of it than this, that I should have expected 
 from my hon. friend a more candid construction of my meaning, 
 and that I feel more comfortable as the writer of the passage so- 
 severely criticized than I should do as its not very fair or very 
 formidable critic. Sir, I have done with the point regarding the 
 previous detention of prisoners. I now come to the other point,, 
 on which the plan of the majority is based, transport of the circuit 
 judges by impressment. It is at once admitted that impressment 
 is, in principle, a most objectionable mode of obtaining transport. 
 The nature of the thing is arbitrary. All that can be said about 
 it is, that from the very beginning, from time whereof the memory 
 of man in this Colony runneth not to the contrary, horses and oxen 
 have been impressed for the public service. I am no advocate 
 for sending the judges circuit by means of impressment. I do 
 not, however, regard impressment for the circuit judges as different 
 from impressment generally. The mischief of impressment is- 
 general ; and if remedied at all, should be remedied as a whole. I 
 am not about to enter into minute calculations to show the amount 
 of impressment transport for the circuit judges as compared with 
 impressment transport for other purposes, but I have seen a return 
 of the 
 
 SECRRTARY TO GOVERNMENT : Allow me to say that the return 
 to which you are about to refer is erroneous, and has been 
 retuined to the officer who furnished it for amendment. It is- 
 inaccurate from beginning to end, or nearly so. 
 
 ATTORNEY-GENERAL : In the face of such statement, I shall 
 make no further reference to the return in question. I shall 
 confine myself to notorious facts. It will be for the able 
 functionary who framed that return to give such explanation 
 here or in another place, as he may deem to be required. In the 
 meantime, I advance it as a matter incapable of dispute, that much 
 other transport is impressed as well as the judges' transport ; and 
 without stating anything about absolute amounts, I shall be much 
 surprised if it do not prove, after the most sifting inquiry, that the
 
 ON THE JUDICIAL SYSTEM. 49! 
 
 impressment for the circuit judges shrinks into very small propor- 
 tions when compared with the impressment made for other public 
 purposes. I have travelled over the Colony twice, once with the 
 Chief Justice in 1840, and again, Sir, with yourself during the 
 present year, and, upon both occasions, I endeavoured to ascertain 
 the notions of the Boers upon such matters ; and although 1 have 
 heard complaints of the inadequacy of the tariff, I never heard 
 complaints of the system of impressment generally ; and much less. 
 any complaints that impressment for the judges was particularly 
 oppressive. But I am favourable to contract instead of impress- 
 ment service universally. To apply the contract, or any other non- 
 impressment principle, to the conveyance of the judges, and then 
 say that impressment was abolished, would be fallacious, and I 
 would not have you keep the word of promise to the ear to break 
 it to the hope. Some power of impressment, however, must exist.. 
 I will not purchase a cheap popularity by saying that when a 
 public functionary is travelling in this Colony, and horses die, or 
 wagons break down, or any of those accidents occur which the 
 roads here render so frequent, notwithstanding the improvements 
 in that way which my hon. friend has the mind of promoting, that 
 the functionary so situated must shift as he can, still he is to 
 possess no power of requiring the inhabitants to furnish, for fair 
 remuneration, the means of transport. But I would make impress- 
 ment the exception, and contract the rule ; agreeing beforehand 
 for every service capable of being so agreed for, and leaving 
 emergencies, against which there was no providing, to be met by 
 the power of impressmen t. I have now, Sir, traced the history of" 
 the recent inquiry, contrasted its commencement with its close* 
 examined the two points upon which the report is based, and 
 shewn that the evils alleged either admit of other modes of removal, 
 or are not of such magnitude as to justify violent remedies. Upon 
 an accurate investigation it will be found, I think, that those 
 evils greatly diminish, though they may not wholly disappear,, 
 and it now becomes my duty to direct the attention of the 
 Council to the nature of the cure proposed by the majority 
 of the committee. The evils being considered, the remedies
 
 492 ON THE JUDICIAL SYSTEM. 
 
 come next ; and to these I shall, at once, address myself. 
 Sir, I am now to observe upon that able document, the report pre- 
 sented to the Council by my hon. friend. Tt is, in many respects, 
 -a very well drawn paper. My hon. friend, it will be remembered, 
 made some fair remarks upon what we call the report of the mino- 
 rity. It seemed to him, I think, to contain too much philosophy, 
 and too little figuring. To me, upon the other h and, it appears 
 that the report of the majority contains too much figuring and too 
 little philosophy. Mr. Canning once said, that in the debates of 
 Parliament there was only one thing more suspicious than a state- 
 ment of facts, and that was, a table of figures. But my hon. friend 
 luxuriates in figures, and holds his footing over a Serbonian bog 
 in which I can scarcely keep myself from sinking. Figures are so 
 numerous in the report that I can scarcely see the reasoning, nor 
 how the premises and conclusions arc sought to be connected. We 
 .have the number of horses used on circuit, the number of oxen, 
 the number of drivers, the number of leaders, the number of 
 guides. I should have had no objection to further returns, shew- 
 ing the number of people with whom the circuit judge shook 
 hands, distinguishing the Heeren from the Vrouws, the number 
 of cups of tea poured out for him, and how often upon an average 
 Jie daily uttered, Go'en dag ! Such a return I should have re- 
 garded as an interesting addition to the statistics of the Colony, 
 though not, perhaps, of any very great importance in reference to 
 the matter in hand. But while the report seems to me to be in 
 some respects redundant, it is, in others, singularly meagre. The 
 .report ought, I think, to cover and fortify the whole ground which 
 the committee was determined to take up. This it does not do. 
 Devoting a most undue proportion of it to figures and returns, the 
 majority leave a number of most important points wholly undis- 
 -cussed ; merely reciting, in regard to them, the resolutions which 
 were passed. The increase in the number and jurisdiction of the 
 resident magistrates rests in this position. No defence of the 
 abolition of clerks of the peace is attempted, although the 
 must acute and powerful reasoner in the Colony had in his evidence 
 given elaborate arguments for continuing the office. We, of the
 
 ON THE JUDICIAL SYSTEM. 49J 
 
 minority, consider that the subject should not be passed over in that 
 way ; and, in consequence, I myself, impar congressus Acbilli 
 ventured to break a lance upon this ground with Mr. Justice 
 Menzies. But the majority had their heads so full of one subject 
 that they could see no other. Again, they resolve against the 
 grand jury system. But they state no reason why. Perhaps this 
 was prudent, for in consequence of our discussion of the point, we, 
 have, to our no small consternation, brought down the Chief 
 Justice upon us, in such a way as to impress us with deep regret for 
 our rashness. Above all, I should have thought that the changes 
 projected in the sheriff's department would have been fully ex- 
 plained and defended ; but they rest upon a simple assertion of the- 
 opinion of the committee, that public officers should not be paid by- 
 fees. And finally, Sir, a most difficult, and what they themselves 
 consider a most important, point is left in the same position ; I 
 need scarcely say that I allude to trial by jury in civil cases. The 
 majority resolve, out-voting the minority, that trial by jury in civil 
 cases should be adopted throughout the Colony ; but in their reports- 
 they give neither facts, nor figures, nor argument, in support of the 
 conclusion, I admit, however, that what the report wanted, the- 
 speech of my hon. friend supplied ; for his discussion of the sub- 
 ject seemed to me to be the most laboured and elaborate part of his 
 able address. And now, Sir, before applying myself to the main prin- 
 ciple of the committee's plan, I shall take the opportunity to dispose 
 as well as I am able, of this subordinate but connected question regard _ 
 ing the extent to which trial by jury in civil cafes should now be 
 introduced. My hon. friend took the minority pretty sharply to task in 
 reference to their treatment of this question. I considered, at the time, 
 that he was imputing something discreditable, and felt somewhat in- 
 dignant, which led to the little ebullition with which I concluded 
 the debate. I am now, Sir, not indeed as cool as an icicle, for the 
 heat of the chamber and the exertion of speaking wholly preclude- 
 that ; but, at the same time, quite good humoured, and in the most 
 perfect charity with my hon. friend. I dispute, indeed, the jus- 
 tice of his remarks. We are not conscious of either "vibrating," 
 or tf oscillating," or being " counsel for the bench and bar," or of
 
 494- ON THE JUDICIAL SYSTEM. 
 
 not being able " to afford to be explicit." On the contrary, we 
 think our views to be as clear and consistent in themselves as we 
 know them to be fairly and honestly entertained. We considered 
 ourselves to be walking very steadily, and nothing which we have 
 faeard from my hon. friend has shaken that impression. The majority 
 obviously regard trial by jury as an important part of their system ; 
 and I hope I give them no offence by saying that they cannot like 
 it the less because it is supposed to be popular, and is calculated to 
 render popular any plan of which it forms a part. My hon. friend 
 exerted himself very much, and was not a little ingenious, in refer- 
 ence to this question. We of the minority are for keeping the peo- 
 ple of this Colony in a " state of apprenticeship," my hon. friend 
 offers them "immediate emancipation." In regard to this I shall 
 merely observe, that with all my fondness for freedom, I am not 
 disposed to grant any liberty which would prove plainly prejudicial 
 to the parties themselves ; that I do not see how trial by jury in 
 civil cases can properly be called " emancipation," or a continu- 
 ance of the present mode of deciding facts, " apprenticeship ; " that 
 I think, therefore, the metaphor is violent ; and that I remember, 
 at all events, that a metaphor is no argument at all. My hon. 
 friend also ranged so far as to refer to the emigrants from Eng- 
 land whose arrival is now looked for. He fears that they will be 
 discontented when they find that they have come to a degraded 
 Colony, by which he means a Colony where trial by jury in civil 
 cases does not exist. I confess, for my own part, that I do not 
 partake upon this subject the apprehensions of my hon. friend. 
 When the parties have communicated with the emigration agent 
 about their wages, and their food, and their probable habita- 
 tion, they will never stop to enquire, " Do they try by jury in civil 
 cases ?" In the opinion of some people, ihe emigrants would pro- 
 bably be more interested in ascertaining how criminal cases are dis- 
 posed of in the Colony. Then, my hon. friend referred to resolutions 
 passed at a public meeting in favour of a Representative Assembly- 
 When the question of a Representative Assembly comes before me, 
 hall give my opinion upon it ; merely remarking at present, that 
 ne of my principles would lead me to oppose any safe extension
 
 ON THE JUDICIAL SYSTEM. 495 
 
 of rational liberty, and that I can see no natural connexion between 
 a Representative Assembly and trial by jury in civil cases. Now, 
 instead of going so far a-field for topics, I could have wished that 
 my hon. friend had applied himself to the two arguments put for- 
 ward in the feport of the minority ; but of these he took no notice 
 whatsoever. One of those arguments is to this effect. Admitting 
 the competency of our colonists to serve as jurymen in criminal 
 cases, it will not follow that they are competent to act as jury- 
 men in civil cases. We admit, indeed, that the questions in 
 the one are not necessarily more difficult than the questions in 
 the other. But in criminal cases the defendant is to have a 
 verdict where the evidence leaves a reasonable doubt, while 
 in civil cases the defendant is not to have a verdict where the 
 plaintiff's evidence at all preponderates. No judge, in charging 
 a jury in a civil case, could say, "Gentlemen, the plaintiff has given 
 such and such evidence, and the defendant such and such ; if the 
 plaintiff has satisfied you beyond a reasonable doubt that his case 
 is good, you will find a verdict in his favour, but if, on the other 
 hand, you entertain a reasonable doubt of the defendant's liability 
 it will be your duty to give him the benefit of the doubt." But 
 this is the way to charge the jury in a criminal case. What is the 
 inference ? Why, as it is easier to distinguish between white and 
 black than between two shades of grey, so it requires less acumen 
 to see when evidence preponderates to the degree required by 
 law in criminal cases, than to see when it just preponderates, and 
 does no more. I trust, Sir, that I am not falling into philosophy. 
 I must, I feel, be very careful in this matter, or I shall be pointed 
 at as a philosopher in the very streets. But I shall be asked to 
 distinguish between a reasonable doubt and a doubt which is not 
 reasonable, and how a juryman in a criminal case is to tell what 
 sort of doubt he has ? I am not metaphysician enough for this. 
 But in practice I know that embarrassment is rarely caused by any 
 such consideration, for where there is a doubt about the sufficiency 
 of a doubt, humanity carries it, and the prisoner is acquitted. 1 
 conceive, as we have stated in our report, that the importance of 
 jury trial in criminal cases cannot be over-estimated. But have its
 
 ON THE JUDICIAL SYSTEM. 
 
 principles been ever yet fully exercised in the country parts of this 
 Colony ? Do we not see in many instances, that instead of fixing 
 their minds wholly upon the evidence, so as to form an independent 
 judgment upon its effect, they are watching the judge, in order to 
 be guided by him ? With the bench filled as it is at present, no- 
 evil is to be reasonably apprehended ; and at all events the influ- 
 ence of the jury makes the judge careful, whilst there is every 
 reason to believe that, with practice, our jurymen will improve ; 
 and as it would be absurd to abstain from going into the water till 1 
 one had learned to swim, so it would be improper to withhold 
 juries in criminal cases in which cases that mode of trial has 
 constitutional advantages, until the people had acquired a fit- 
 ness which can never come but by experience. But when I see so- 
 much leaning upon the bench in criminal cases, in which the jurors 
 are from their circumstances more competent, and in conscience 
 more obliged to form an independent judgment, I cannot doubt 
 that trial by jury in civil cases would, in general, have no other 
 effect than to allow the judge to give a verdict for which he was 
 not responsible, except in the cases, perhaps many, in which some- 
 influence has made its way into the jury box which it would have 
 been better to exclude. Considering the distrust of their own 
 judgment in such matters which our country farmers entertain, and 
 their profound respect for the judge's opinion, I can scarcely doubt 
 but that the verdict of the jury would have been the verdict of the- 
 judge, or that, on the other hand, some undue influence was in 
 operation. I come now to the second difficulty mentioned in the 
 minority's report. Looking to the country districts of this Colony^ 
 to the truly curious extent to which the several families are inter- 
 mixed by marriages and descent, the multiplicity of relationships, 
 of which a genealogist might in vain attempt to get to the bottom, 
 and the thinness of the population generally, we consider that 
 it would be impossible to empannel a jury of boers to try any case 
 between boers, in which some at least of the jurymen would not be 
 so connected with one or other of the litigants as to make their 
 impartiality suspected by the party against whom the verdict was 
 returned. This objection has been set forth and explained in the
 
 ON THE JUDICIAL SYSTEM. 4.57 
 
 minority's report. It demanded, I conceive, to be observed upon 
 by my hon. friend, being an important point, and one well merit- 
 ing observation. It was also in evidence by several witnesses^ 
 But it appears to me that the majority, instead of looking the evi- 
 dence in the face, instead of adhering to it to any extent, have 
 made it but a starting post to run away from, and have come for- 
 ward, in regard to jury trial in civil cases, with a proposition un- 
 sustained by the statements of the witnesses examined. Mr. Le Sueur 
 who was the first witness upon the point, thinks trial by jury would be 
 beneficial in mercantile cases. Major Longmore would allow a jury 
 to try commercial questions, and questions of a like nature, but, oddly 
 enough, he would keep libel and slander for the bench, fearing, I pre- 
 sume, that juries would be too severe, and desiring to place the liberty 
 of the press under more secure protection. The Chief Justice seems 
 to leave the question of jury or not to the preference of the suitors 
 themselves. Mr Justice Musgrave considers that upon certain 
 questions of a commercial nature a jury might sit with advantage 
 but speaking generally, is not in favour of the principle as regards 
 this Colony and its laws. Mr. Justice Menzies is entirely against 
 the system. But lawyers may not be trustworthy witnesses. Turn, 
 then, to mercantile men. Mr. Eaton says : " I think trial by jury 
 in civil cases would be very beneficial (to a qualified extent). I 
 think that if trial by jury were adopted in all civil cases it would 
 entail an amount of inconvenience on the jurors that would be in- 
 sufferable." I pray the Council to weigh this last remark. Summon 
 jurors for all civil cases throughout the Colony, and the number 
 annually required will be immense. If they are to be paid for their 
 attendance, the costs of suit will be much increased. If they are 
 to serve for nothing, there will be a great grievance to a great num- 
 ber, who will scarcely see why they are to lose their time and be 
 put to expense for the sake of other people. This, however, -is 
 incidental. Proceeding with the witnesses, I come to some 
 very proper observations made by Mr. Sutherland : '* I think that 
 in commercial cases and cases of account, trial by jury would be 
 beneficial, and better than the present system of trying them 
 before -three judges without a jury. But I doubt whether, in thij 
 
 KK
 
 ON THE JUDICIAL SYSTEM; 
 
 community, a sufficient number of persons could be' fo'und to try 
 the cases who have not heard the subject discussed ou(T of court, 
 *nd who consequently would go biassed into the jury box'. The 
 want of the English language I also consider a great drawback, A'nd 
 also that there is not a sufficient number of persons here capable 6f 
 forming an opinion upon commercial matters." Mr. John SmufS 
 nates : "I am not an advocate for trial by jury in civil cases, not 
 even in Cape Town ; I prefer the trial cf all civil cascsbyihree judges. 
 I should be sorry at present to see trial by jury in civil cases established. 
 iBut in order to see the system tried, I should have no objection to 
 aee it introduced by means af special juries in particular cases, 
 -w^feere parties require it. My reason for the objection I have to 
 'tket^uestion of trial by jury in civil cases is, that I think our popu- 
 llatioc. is not sufficiently large, and that they are too much connected 
 VKHh-:each other, and also that many of the petit jurors are depen- 
 dentnu'pcn capitalists, and that it wiH work great inconvenience to 
 t h-eanhzbkants to sit on such juries, to which they would object, as 
 ittterfenkig with their ordinary business." My learned and esteemed 
 friend isu'diformer predecessor, Mr. Daniel Denyssen, says: "In 
 r egardr to l&e expediency of introducing the principle of trial by 
 jury iircivilocases, I feel the question to be one of great difficulty, 
 but if I -were 'to give my impression, I should say that, under the 
 circumstancee of this Colony, trial by jury in civil cases would not 
 be likely to work so well as at present, unless, perhaps, in mercantile 
 cases." Mr. John Coenraad Gie considers "that this community 
 is not quite ripe for trial by jury in civil cases at this moment." 
 Mr. Rutherfoord says : " In principle, I think jury trial is the best; 
 but m.yidea is,-that our community is too limited to allow us to 
 expect -that cases could be determined by jurymen, all of whom 
 were completely unconnected with the parties, and unbiassed with 
 regard to the subject matter to be tried." Mr. Gadney : "With 
 respect to trial by jury in civil cases, I think it might be introduced 
 beneficially in special cases, but not generally for all trials. I think 
 there is not sufficient intelligence for that purpose. I also think 
 that the large family connections here would create another diffi- 
 culty with regard -to -such trials which might leave a bias for or
 
 ON THE JUDICIAL SYSTEM. 499 
 
 against the litigating parties." I have now gone over the evidence 
 of all the witnesses, except two, who were examined to the point. 
 I submit that the effect of the evidence is to induce care 
 and caution, and a gradual advance, rather than a sudden 
 alteration. But I admit that two highly respectable witnesses 
 go the other way ; one, a most intelligent gentleman, engaged in 
 mercantile pursuits, and the other, in my opinion, as good a civil 
 lawyer as any in this Colony (I speak sentiments I am well known 
 to entertain, and have no temptation to flatter). I allude to Mr. 
 Stephanus Watermeyer and Mr. Advocate Brand. The opinions of 
 those gentlemen are entitled to much weight. But I do not disparage 
 them when I say they cannot be allowed to outweigh the opinions 
 of so many other most competent witnesses, and that the weight of 
 evidence is entirely against their views. However plausible and 
 however popular the advocacy of jury trial in all civil cases through- 
 out the Colony may be, and I am aware that it is both, I put it to 
 the Council whether the preponderance of evidence is not greatly 
 in favour of the cautious policy of the minority who are disposed to 
 introduce trial by jury at once in Cape Town, and afterwards 
 extend it as fast and as far as circumstances will allow. My hon. friend 
 quoted largely from the commissioners of inquiry. I am not pre- 
 pared to say that their opinions upon this point are eniitled to any 
 extraordinary weight. I have heard the law report of the com- 
 missioners spoken of in the Colonial Office in London in a manner 
 which induced me to believe that it was not there regarded as a 
 very serviceable document. How far does my hon. friend go with 
 the commissioners ? They arc against requiring unanimity, and 
 think that a majority of two-thirds should give the verdict. I 
 should like to know my hon. friend's opinion upon this very knotty 
 but important point, a point intimately affecting the whole princi- 
 ple of jury trial. I am aware that much may be said on both sides. 
 M. Arago, in France, has considered it on mathematical principles ; 
 Mr. Bentham, in England, has considered it on metaphysical prin- 
 ciples ; but be unanimity or a majority the rule to be established 
 J should have wished to hear the rule announced, in order to be 
 able to discuss its probable effects. I imagine, however, that the 
 
 KK 2
 
 5OO ON THE JUDICIAL SYSTEM. 
 
 majority of the committee will dissent from the commissioners, and 
 favour unanimity, in which case they weaken the authority which 
 they quote. And let it be borne in mind, that after the report of 
 the commissioners had been considered, the Charter of Justice was 
 sent out, in which the recommendations of the commissioners were 
 not embodied. I put the charter against the report, and submit that 
 the former, framed after the perusal of the latter, is clearly entitled to 
 the greater weight. But this is not all. The Secretary of State, in what 
 we call the Judicial Dispatch, adverts to the subject. " The charter,'' 
 says Lord Goderich, " contemplates the possibility that trial by 
 jury might, hereafter, be properly established even in civil cases, 
 and enables the Governor in Council to make provision for that 
 purpose. It is scarcely necessary to remark that such a change in the 
 law should not be introduced except with the greatest caution " (we 
 have been much taunted about the word " caution " in our report) 
 "and after the most mature deliberation with the judges of the 
 court. " Such were the views of the Secretary of State, writing 
 with the report of the commissioners before him ; and it does 
 appear to me that they are both sound and judicious. The judges 
 ought, upon a point of this nature, to be recognized as high authority.. 
 I do not, indeed,, counsel you, in regard to this or any other question 
 to put yourselves supinely into rhe hands of the judges, or surrender 
 your right of deciding for yourselves, which were to abandon your 
 duty ; but I do counsel you to pay a most respectful attention to 
 the views of the judges regarding the matter now in hand. I have 
 now, Sir, stated everything that occurs to me in reference to the 
 introduction of trial by jury in civil cases throughout the Colony, a 
 measure which the majority regard as an important part of the 
 system, and one the discussion of which formed, perhaps, the most 
 striking, leading, and eloquent part of the speech of my hon. friend, 
 The way is now cleared for the consideration of the main question 
 on which we are divided, the great organic change to which I am 
 opposed. And here I state at once that granting for the sake of 
 argument all their evils, I am deliberately of opinion, that for every 
 evil which their system tvould remove, it would substitute a hun- 
 dred greater evils, and inevitably entail consequences of a most
 
 ON THE JUDICIAL SYSTEM. 5<3I 
 
 injurious character upon the Colony at large. In the report of the 
 minority, we have endeavoured to show how the proposed system 
 would change the character of the present circuit courts, and change 
 still more the character of the'present Supreme Court; and have given 
 our reasons for thinking that one court of three judges, sitting to- 
 gether constantly, communicating with each other, capable of correct- 
 ing each other's deficiences and peculiarities, having constant access to 
 the records of the old court as well as their own, deciding in Cape 
 Town, in the presence of a public comparatively intelligent, and of 
 a bar, small indeed in numbers, and if measured by him who 
 chances to be its head smaller in capacity, but still a bar not wholly 
 incompetent to aid in the dispensation of justice, that such a Supreme 
 Court furnishes securities for the intelligent, impartial, and 
 uniform administration of law, which you will vainly seek to find 
 in the system suggested in its stead ; by which, instead of judges 
 united in the way I have described, will be substituted five separate 
 judges, placed in remote districts, and small communities, without a 
 bar to assist or control, or any stimulus to extend their knowledge, 
 or even to retain whatever law they may originally have possessed 
 My hon. friend has said that the public has no sympathy with the 
 Supreme Court, a remark the justice of which I am not prepared to 
 admit, for though no judgments ever please the losing party, I am 
 not aware that the decisions of the Supreme Court have generally 
 given dissatisfaction; but be that as it may, of this I am quite certain > 
 that however small may be the public sympathy with the Supreme 
 Court, it will be much smaller with any of the courts proposed by 
 the majority, courts to be formed of local judges, exposed to local in- 
 fluences, who will soon sink in the estimation of their little neigh- 
 bourhoods, and be regarded as mere village vendors of unsound law. 
 This is my notion of the probable effects of such a change as is 
 suggested, irrespective entirely of ihe particular nature of the law 
 to be administered. But the nature of that law should not be over- 
 looked. It is, and I presume is for ssme time to remain, the 
 Roman Dutch Law. It is not a system of principles, like the 
 Code Napoleon, though, by-the-bye, the authoritative commen- 
 taries on that code have nearly swelled into the "bulk of the camel
 
 5O2 ON THE JUDICIAL SYSTEM. 
 
 loads which were digested by Justinian. It is not such a code 
 as you might take from Mr. Bentham. It is a complete and 
 elaborate system ; and where do you find it ? Preserved in two 
 languages, Latin and Dutch. Pray tell me in what manner 
 you expect that your district judge of George, or Worcester, or 
 GraafF-Reinet, is to have his attention directed to any authorities- 
 couched in Latin ? Dutch, indeed, he may have quoted ; but is 
 your district judge to be conversant with Dutch ? With agents, 
 who are ignorant of Latfn, and judges who are ignorant of Dutch, 
 I confess I anticipate with amazement, not unmixed with 
 mirth, the manner in which some such questions as I have myself 
 been lately arguing in the Supreme Court are to be discussed and 
 decided in these country jurisdictions. But my hon. friend intends 
 to go further, and to make the law easy. He has found out that 
 our system of pleading is much too technical, that there is a great 
 deal in it that serves no useful purpose, that in fact written plead- 
 ings are unnecessary, and that the judge should hear the parties state, 
 orally, the nature of their dispute. And by way of a lively illustra" 
 tion, and in order to secure attention, I won 't say to " attract an 
 audience," he put the case of a cow distrained for rent, and cer- 
 tainly reduced the case to very narrow limits. " You took my cow,'* 
 says the complainant, " I did," replies the defendant, " because you 
 owed me rent." And so, says my hon. friend, you may drop the cow 
 altogether, and confine yourself to seeing whether or not any rent is 
 in arrear. But suppose the question to be started, by what law was 
 the cow distrained , ? Were the demised premises an urban tenement 
 of 4 fustic tenement ? and is there a tacit hypothek in both in- 
 differently, for rent in arrear ? In the Supreme Court we should re- 
 fer at once to our great authority Voet (for I may observe, Sir, that 
 no matter how much law a colonial lawyer may have in his head, 
 he is certain to have much more in his Voef), and so perhaps, settle 
 all these points, but I fear the Worcester agents might be gravelled; 
 with them. But to get on, we shall concede it to be settled that by 
 some law, in fact by a law of nature, cows are distrainable for rent- 
 But then, says the defendant, " I admit your hypothek, but you 
 ought to have had the previous leave of the Court before asserting
 
 ON THE JUDICIAL SYSTEM. 503?. 
 
 it." The Worcester judge is late from England. He does -not jan- - 
 derstand such practice, and is about to overrule- the- 
 objection. "But the judge in the next circle hoMs- the - oh*~ 
 jection good." "That maybe," replies the judge, "such may bfe- 
 the law in the next circle, but it is not law here ; ea<rli> judge, I ' 
 hope, is to be at liberty to decide as he thinks proper. 9 * ***(Zfc]!' ' 
 " says the plaintiff," at last, " I don't owe the rent ; I paid iid*" 
 " Did I give you a written receipt ? " asks the defendant. " You 
 did." " Where is it ? " ' Why, it's at home, of course !" " Then 
 you can't give parole evidence of it? contents," urges the defendant 
 "Where do you find that law ?" cries the plaintiff, " it is much 
 too technical, J call upon the Court to let my witness prove the 
 payment." The judge, perhaps, is puzzled ; but my hon. friend* 
 comes to his assistance, and gives the puzzled judge a jury of nine- 
 Boers, judges of law and fact, relying that their profound sagacity- 
 will relieve the case of all possible embarrassment. I throw these 
 things out, to show that cases may not always prove so simple as they 
 seem, and that even out of things which may appear, at first sight,, 
 free from difficulty, a number of unexpected points may arise. My 
 hon. friend admitted, as I understood him, that an intelligent, im- 
 partial, and uniform administration of law was an object of the last 
 importance. But he says that intelligence and impartiality arc in- 
 dependent of localities, and that uniformity we have not at present 
 got. I cannot admit any of these conclusions. I cannot admit that in- 
 telligence is independent of localities, because intelligence results 
 from practice, from emulation, from regard to reputation, from the- 
 shame of being ignorant of what those who surround you feel that 
 you ought to know. In regard to law, it is especially the case. It 
 is a study which must be stimulated. A secluded student may live 
 on literature j a retired surgeon may find pleasure in pursuing ana- 
 tomical investigations ; but no one ever heard of a lawyer; 
 in England, who, except when urged by circumtances, 
 ever sat down to delight himself with the term reports^ 
 or of any lawyer in this Colony, who, when tire^ 
 world without had wearied him, sought for solace in Yost's 
 Commentaries ad Pandectas. The very idea of such a thing i&
 
 504 ON THE JUDICIAL SYSTEM. 
 
 laughable. And believe me, Sir, that judges will be like all other 
 lawyers ; and having little to do, and no auditory to which they 
 could deliver a learned judgment without justly incurring the 
 charge of pedantry, they will become careless of their professional 
 attainments ; take, perhaps, to sheep-farming, and let their wits go 
 " a wool gathering" when they should have them directed to doc- 
 trines of law. At present, things are otherwise. In the locality 
 in which the Supreme Court is placed some stimulants are presented 
 which are not, I think, without their influence. I think, for in- 
 stance, that 1 do not arrogate too much for the bar when I say that 
 our opinion of the manner in which business is transacted is of 
 some consequence, and that no judge will, if he can help it, talk 
 nonsense in our presence. So much as to the judge's intelligence ; 
 now as to his impartiality. The topic is delicate, and to be delicately 
 handled ; but of this I am certain, that local jurisdictions have 
 always been attended by this calamitous result, either that the local 
 judge, living in a small society, has become subject to partialities 
 and prejudices ; or what is nearly as bad, that he has been liable 
 to be suspected of having become subject to them. Turn to history. 
 Look at England. The whole jurisprudence of England was 
 originally local. Six or seven hundred years ago, circuits were 
 for the first time established, and since then justice, centralized 
 in the Supreme Courts in Westminster Hall, has been administered 
 upon a different principle from that which formerly prevailed. 
 With what effect ? Upon this point I shall call some witnesses. 
 The first shall be a writer of authority, himself a lawyer though 
 not practising, a man not used to panegyrize, but on the contrary 
 a severe though impartial judge of men and institutions : "Henry 
 the 2nd," says Mr. Hallam, in his Middle Ages (the and 
 volume, page 463), " established itinerant justices to decide civil and 
 criminal pleas within each county. This excellent institution is 
 referred by some to the 22nd year of that prince ; but Madox 
 traces it several years higher. We have owed to it the uniformity 
 of our common law, which would otherwise have been split, like 
 that of France, into a multitude of local customs, and we will stil 
 owe to it the assurance which is felt by the poorest and most remote
 
 ON THE JUDICIAL SYSTEM. 55 
 
 inhabitant of England, that his right is weighed by the same incor- 
 rupt and acute understanding upon which the decision of the highest 
 questions is reposed." I shall now quote a man, not of the same 
 calm and dispassionate temperament, but one whose talents fill a 
 large space in the public eye, and who is, moreover, a distinguished 
 legal reformer Lord Brougham. In his law reform speech of 1828, 
 that speech of eight hours' length (I am not, I hope, to talk as 
 long without any of his talents), he thus refers to the Welsh judges : 
 " They become acquainted with the gentry, the magistrates, almost 
 with the tradesmen of each district, the very witnesses who come 
 before them, and intimately with the practitioners, whether counsel 
 or attorneys. The names, the faces, the characters, the histories, o 1 " 
 all those persons, are familiar to them, and out of this too great 
 knowledge grow likings and prejudices which never can by any pos- 
 sibility cast a shadow across t he open, broad, and pure path of the 
 judges of Westminster Hall." What was the language of the same 
 eminent person in moving for leave to introduce his local courts Bill 
 of 1830 ? "Let me not be misunderstood. I am too fully sensible 
 of the great and manifest advantages which result from that arrange- 
 ment which makes the capital the seat of justice, to attempt to alter 
 it, even if I suppose that I could succeed in the attempt." When 
 Chancellor, Lord Brougham afterwards introduce in the Lords his 
 measure for creating local courts. It was opposed and lost. I give 
 no opinion upon that measure ; but merely desire to observe, that 
 instead of dismembering the courts at Westminster, the union and 
 integrity of those courts, and their constantly controlling operation, 
 was assumed by the advocates of local courts as an indispensable 
 condition of their well working. The local judges were to have 
 been paid 2,000 per annum, at home ; not sent out to a remote 
 colony for 1,200 ; and notwithstanding that security for ability 
 and integrity, the measure, as I have said, was negatived. Lord 
 Lyndhurst, in the course of a most powerful speech against the Bill* 
 availed himself of what he calls, and what I ca 11 also, the elegant 
 language of Sir William Blackstone : " The very point of their being 
 strangers in the country, is of infinite service in preventing those 
 factions and parties which would intrude in every case of moment>
 
 506 ON THE JUDICIAL SYSTEM. 
 
 were it tried only before persons resident on the spot ; and as this 
 constitution prevents party and faction from intermingling in the trial 
 of right, so it keeps both the rule and the administration of the laws 
 uniform. These justices, though thus varied and shifted at every assize, 
 arc all sworn to the same laws, have had the same education, have 
 pursued the same studies, converse and consult together, communi- 
 cate their decisions and resolutions, and preside in those courts which 
 are mutually connected ; and hence their administration of justice 
 and conduct of trials are consonant and uniform, whereby that diffu- 
 sion and contrariety are avoided which would naturally arise from a 
 variety of uncommunicating judges, or anyp rovincial establishment." 
 In the same speech there is an extract from Male's History of the 
 Common Law, to the same effect as the passage from Judge Black- 
 stone. Read the instructive debate to which I refer, and you will 
 find in the speech of Lord Brougham much of his wonled power 
 of sarcasm, and in the speech of Lord Lyndhurst much sharp and 
 bitter but strong argumentation, and in the speech of Lord Plunket 
 not a little of his unostentatious force, but you will not find in any 
 of them any support for the principle of a change which would 
 separate judges of unlimited jurisdiction, and place them, up and 
 down, in limited localities ; on the contrary, you will find a cen- 
 tralized seat of justice universally assumed to be a power, without 
 which local courts could not, under any circumstances, be safely 
 entrusted even with a restricted jurisdiction. Now tell me, I be- 
 seech you, what there is in this Colony, in the number of its popula- 
 tion, in the limited society with which the judge must mix, what 
 there is in this Colony, in which, as in all small communities, the 
 great commandment is that you shall never believe your neighbour 
 to be actuated by a good motive if you have ingenuity enough to 
 devise a bad one for him, what there is in this Colony, I say, whieh 
 induces you to consign the unhappy judge to become the victim of 
 anonymous letters to the Colonial Office, of foul, low, petty, vulgar 
 insinuations, of records tracing his judgments to the several places 
 at which he dined out for the last twelve months, or to the 
 different persons with whom he may have been seen shaking 
 hands in the street, and to deny him the right of saying, "I sat
 
 ON THE JUDICIAL SYSTEM. 
 
 one of three, in the presence of the bar, of the public, and the. 
 press, and I call those respectable witnesses to silence all base back- 
 stairs imputations." You will point to the present judge: of circuit.. 
 But I hold the two characters to be distinct. The circuit judge. 
 is a mere bird of passage ; he meets certain people, but only as a< 
 traveller ; he forms no permanent associations, nor is suspected of 
 forming them ; he is altogether secure from the evils which beset 
 the local judge. Again I say, look to the mother country. She- 
 commenced with local judicatures, she ended by centralizing the 
 seat of justice, and she is little likely to retrace her steps. " Repeal 
 the union," exclaimed Canning, "restore the heptarchy !" " Break 
 up the courts at Westminister," it might well be said, " restore 
 the county courts." Mo man, I care not what his talents, were 
 they even greater, aye, ten times greater, than those of my hon. 
 friend, cculd, in my opinion, on account of alleged length of 
 imprisonment, or difficulty of transport, or any matter of a like 
 nature, stand up in the House of Commons to propose placing the 
 supreme judges in separate judicial circles with the slightest chance 
 of obtaining a hearing. I have seen the House on one or two occa- 
 sions in some excitement, and I can well imagine how the member's 
 voice, and the Speaker's call of order, would both be drowned in 
 the derisive shouts with which such a wild proposal would be sure 
 to be received. My hon. friend has spoken of Hong Kong, and 
 colonies with only one judge. But has he been able, after survey- 
 ing, as I know he has done, the whole Colonial Empire of England*, 
 to point out any one Colony in which there now exists, or has- 
 ever existed, such a system as he recommends ? Where is the Colony 
 in which, when you were giving it three judges, you did not 
 centralize them in one Supreme Court ? Much more, where 
 is the Colony in which, having once centralized three judges in one 
 Supreme Court, you afterwards proceeded to divide and localize 
 them ? Witli every variety in the law itself, you have remarkable 
 uniformity in the machinery for its administration. There is scarcely 
 a system of jurisprudence that ever has existed, which is not 
 yet preserved in some Colony of England ; old French law in 
 Canada, modern French law in Mauritius, the Dutch law in one
 
 ON THE IUDICIAL SYSTEM. 
 
 place, the Spanish law is another, Hindoo law in some quarters, and 
 in others, northern customs descended from the time of 
 'Odin ; but, in the midst of all these diversities, you find, I think? 
 the machinery uniform, and invariably perceive, that when you 
 have judges enough to form a strong court, you do not scatter them 
 but unite them. Here is Clark's Colonial Law, look through its 
 pages, or consult any other work you may prefer, and show me 
 anything that resembles the plan proposed by the majority. You 
 cannot do it. The plan is as yet unprecede nted, and 1 trust it will 
 be found that this Colony shall not become a precedent. But 
 coming closer to the point of unformity of decisions, it occurs to 
 me to remark, that the present Treasurer-General of Hong Kong, 
 Mr. Montgomery Martin, in his book upon this Colony, published 
 some ten years ago, says in a foot note, that the inhabitants were 
 then dissatisfied with the circuit court decisions, regarding which, 
 it was observed, that two of the judges, being English, decided one 
 way, and the third, being a Scotchman, decided another way. Is 
 this against me ? Sir, it is for me, and that strongly; because if 
 ten years ago, or better, when the judges were new to each 
 other, when they had but recently become fellow students, when 
 they had not yet succeeded by mutual co-operation in correcting 
 errors, the Colony was suffering from evils which it does not now 
 complain of, the improvement must be traced to the action of the 
 Supreme Court, and to the extent to which discussion in Cape Town 
 has established principles that are recognized as precedents on circuit. 
 But it would certainly be a strange way of counteracting that 
 tendency to variety which arises from the fact that your judges are 
 men bred under different systems of law, ard which nothing but 
 constant communication with each other, in the discharge of the 
 duties of one court, can ever check, to set them down singly, at a 
 distance from each other, and there to require each of them, sink 
 or swim, to lay down such law as he is able. But my hon. 
 friend wholly disputes the fact of uniformity as now existing, 
 and points to certain sentences in criminal cases not in keeping 
 with each other. The discussion of this topic is a matter 
 of delicacy, and I shall not dwell upon it. The Swcllendam
 
 ON THE JUDICIAL SYSTEM. 509 
 
 case, which my hon. friend referred to, I remember well, and be- 
 lieve that the apparent discrepancy could be satisfactorily explained.. 
 In regard to the Kafir cases, I offer no opinion. But this I say, 
 that honest and good men may, from principle, have different 
 standards for the admeasurement of punishment ; that this Colony 
 is not the only place in which such different standards are found to 
 be applied ; that you can scarcely take up an English newspaper 
 without seeing some remark upon the severity of one judge's 
 sentences as compared with the lightness of another's. But such 
 varieties are, I admit, unfortunate. They perplex the ideas of the 
 ignorant and confound the gradations of crime ; and I could wish for 
 greater uniformity than apparently prevails. But while I make this 
 admission, I contend that the state of things on which my hon, 
 friend observed, instead of favouring his system, tells powerfully 
 against it. For if, notwithstanding the opportunities which the 
 judges now enjoy of comparing and correcting their notions, a con- 
 siderable diversity of practice is found to prevail (chiefly in regard 
 to the leniency of the young judge, as 1 have heard him call, 
 himself, Mr. Musgrave), within what limits do you expect to confine 
 the diversity of practice which will prevail when the judges are 
 separated instead of being associated, and when they will neither 
 have the temptation, nor the opportunity, of saying the one to the 
 other, "Your sentences, brother, are so light as to make mine seem, 
 too severe ;" or, on the other hand, " Brother, your sentences are 
 so severe as to make mine seem too light," and so, perhaps end by- 
 striking a diagonal in which both shall coincide. My hon. friend 
 sees here a decided advantage in his own plan. In his own circle 
 Mr. Justice Menzics will be uniform, and in his own circle Mr.. 
 Justice Musgrave will be uniform also. But what sort of uniformity 
 is that which condemns George and Worcester to opposite principles 
 of punishment for ever ? What is gained by congregating at the 
 convict stations men sentenced, in different circles, to different 
 degrees of punishments for the same degrees of crime ? This is a 
 want of uniformity more baneful while it lasts, and more likely to 
 continue, than any which can be presented under the present system. 
 But I now go farther, and ask, why it is that the scale of punish-
 
 ON THE JUDICIAL SYSTEM. 
 
 irients of different judges is found to be so various, while the deci- 
 
 sions of the same judges in regard to civil cases are, in general, 
 
 consistent ? It is becanse the judge has, in regard to the scale of 
 
 punishments, an unfettered discretion, while in regard to civil casesj 
 
 he is controlled by fixed rules of law. But without a Supreme 
 
 Court, which shall be a strong court, and an assisting bar, and con- 
 
 stant comparison of legal principles, and frequent discussion, fixed 
 
 rules of law will become things unknown ; discretion will be substi- 
 
 tuted for them ; and when, instead of the right line of law, which 
 
 Coke praises, you measure with the crooked cord of private opinion, 
 
 when you have introduced oral pleadings in local courts, where there 
 
 will be none of the aids required for the preservation of the science 
 
 of legal judgment, you will begin to find that foundations have 
 
 t>een unsettled, and to perceive the same want of uniformity in the 
 
 definitions of crimes and offences, and the law of debtor and creditor, 
 
 as you now witness in regard to the meting out of punishment. 
 
 Selden, writing against courts of equity, says that to make law oj 
 
 the Chancellor's conscience is as absurd as it would be to make a 
 
 measure of the Chancellor's foot ; one Chancellor has a short foot, 
 
 .-another Chancellor has a long foot, and 'tis all the same, he asserts, 
 
 -.with the Chancellor's conscience. This is a sarcasm, and a sarcasm 
 
 i inapplicable to that rigid system which in England they call 
 
 ( equity. But it is not inapplicable so such a state of things as may 
 
 1 be . apprehended from such courts as the majority contem- 
 
 plate. The Chief Justice has a short foot, Mr. Justice Musgrave 
 
 ; has. along foot, and it is quite possible, notwithstanding the honesty 
 
 rand, gbility of both, that separated from each other, they, as all 
 
 other . persons, may take widely different measurements of law. 
 
 "But my hon. friend may say, "The whole of your language is mis- 
 
 applied ; I do not break up the Supreme Court ; I merely separate 
 
 its members'." Let us not quarrel about words. What you call 
 
 separating the five members of the Supreme Court, I call creating 
 
 five local courts ; and I apprehend that my language is the more 
 
 correct. How. will your annual assembly of three judges correspond 
 
 with the presept Supreme Court ? What is that assembly but three 
 
 . of the five lo,cal judges, united only to hear appeals and new trial
 
 ON THE JUDICIAL SYSTEM. $11 
 
 motions ? The Supreme Court is flow a court of first instance, All 
 cases involving only law, all cases involving law and fact, where the 
 facts are admitted, or are found on circuit, bankruptcy motions, 
 provisional cases, all these, no matter from what part of the Colony 
 they come, arc now triable, in the first instance, in the Supreme 
 Court. Will this be so by the proposed system ? Certainly not. By 
 the proposed system the Supreme Court wholly ceases to be a court 
 of first instance ; so that unless capitalists who lend their money 
 on mortgages in the country districts, require their debtors (as of 
 Course they may) to fix their domiciliitm citandi in Cape Town, they 
 must follow the forum of the defendant, as the attorneys 1ft their 
 petition have clearly pointed out. The administration of justice 
 an the Colony will icst upon local courts, controlled only by a very 
 oansatisfactory appeal to local judges, collected once a year. But 
 if we are lo go so far, why not go farther ? What think you of the 
 iplan <of abolishing all courts except courts of the resident magis- 
 trates, and then once a year assembling five of those functionaries 
 in Cape Town, and five in Graham's Town, to hear appeals ? 
 YO.U .don't like that. You see no chance of preserving in such a 
 system the principles of law. Nothing that could be urged about 
 removing technicality, and allowing the parties orally to tell their 
 stories to the magistrate, and about the corrective provided by the 
 appeal, wouldreconcileyou to such a plan. I am of the sameopinion. 
 But I do conceive that when you shall have clearly fixed upon the mis > 
 chiefs wlich might be apprehended from such a scheme as I have 
 suggested, you will have found, at the same time, reasons differing 
 but in degree for doubting the safety of the plan proposed by the 
 majority. My hon. friend has produced returns to show that 
 appeals from judgment pronounced on circuit are but few, and he 
 thence infers that appeals from the new courts would be but few 
 likewise. If they should be so, so much the worse, because such a 
 fact, instead of convincing me that the local court was satis- 
 factory, would convince me that the appeal court was not looked 
 to with confidence. The rarity of appeals from circuit is easily ac- 
 counted for. Questions of law, the circuit judge reserves for 
 Town whenever they present novelty or difficulty. And
 
 512 ON THE JUDICIAL SYSTEM. 
 
 the circuit judge, moreover, carries with him the knowledge which 
 this Supreme Court practice is calculated to create or keep alive* 
 Where the law is certain, appeals are rare. Lord Lyndhurst, in 
 his speech on local courts which I have already referred to, say:> 
 that Preston, the conveyancer, gave in twenty years 40,000 opinions, 
 not I in 30 of which ever came in any way into question in the 
 way of litigation. How was this ? Because, infinitely complex 
 as English jurisprudence is, an English lawyer knows that he may 
 give opinions carrying authority, and that but little depends upon 
 the particular judge. Even in this Colony, something of the 
 same kind is experienced. I am not prepared to say that I myself, 
 to say nothing of better lawyers, might not, were I so inclined 
 almost double the illiquid cases of the Supreme Court, by giving: 
 encouragement to parties who consult me. But an advocate can 
 yet say, with some degree of confidence, " The law is settled, you 
 have no case ; if you go into court you will lose your money." It 
 is better, as has been often said, that the principles of law should 
 be settled, than that they should be sound. Once render them 
 uncertain, by establishing separate courts of low legal character, 
 and no man can advise, until he knows what judge is to try the 
 case, a state of things in which the preventive check upon litigation, 
 which now exists must be in a great degree withdrawn. The 
 court of appeal proposed by the majority of the committee inspires 
 me with no confidence, for no court of appeal can remedy half 
 the mischief which may be done by defective courts of first instance. 
 The facts will be ill found, and yet nothing capable of being proved 
 may be sufficient to obtain a new trial. The law will be ill given, 
 and yet, in the general uncertainty, no man may wish to risk the 
 costs, and abide the delay, and endure the anxiety of appealing, 
 And I am not without some apprehension that these local judges, 
 not knowing how soon their own decisions may be called in ques- 
 tion, will be exposed to a strong temptation to sustain each other's 
 judgments, that an esprit du corps will arise amongst them, and it will 
 come to be understood that if I support your law to-day, you will, 
 in turn, support my law to-morrow. I see so much danger in the 
 principle which I have discussed, that scarcely any saving in expense
 
 ON THE JUDICIAL SYSTEM. 513 
 
 would reconcile me to it ; but let us now see how stands the matter 
 of expense. My hon. friend gave a comparative estimate of his sys- 
 tem as compared with ours, which shewed a balance in his favour of 
 7,000 and upwards, I am wholly sceptical as to the accuracy of 
 that estimate, and have in turn made out two tables which, as it 
 appears to me, will be found to come closer to reality. Some items 
 in the tables of my hon. friend are obviously erroneous. Agreeing 
 to the position laid down by us, that all reductions equally compe- 
 tent to both systems should be excluded from each, he yet charges 
 me with 2,000 for a Chief Justice, and himself with only^i^oo, 
 forgetting that the salary need not be higher in the one than in the 
 other. In the same manner, he charges us with 1,500 instead of 
 1,200 for one of our puisne judges. Again, he debits me with 
 1,803 for the charge of summoning jurors and witnesses, and 
 charges himself with nothing. He says he will do this work with the 
 police ; but if so, so can I ; or rather, as I pay the sheriff" for doing 
 that work, I can dispense with two policemen, and so diminish the 
 police charge, without impairing the real efficiency of the force. 
 Without going through all the items, but referring generally to Mr. 
 Menzies' letter and tables for explanation, here are the tables to 
 
 which I refer : 
 
 System of Majority. 
 
 Chief Justice jC 1 ^ 00 
 
 4 Circle judges ... ... ... ... ... 4,800 o o 
 
 4 Deputy sheriffs ... ... ... ... ... 1,000 o o 
 
 4 Crown clerks ... .. ... ... ... 1,000 o o 
 
 5 Registrars and judges, clerks (vide table 2 of Mr. 
 
 Justice Menzies) ... ... ... ... 600 o o 
 
 Transport and personal expenses of four crown 
 
 clerks (vide ditto) 330 o o 
 
 Transport and personal expenses of four judges and 
 
 four registrars (vide ditto) ... ... ... 2 J9 o o 
 
 Transport and personal expenses of four deputy 
 
 sheriffs to travel with circuit (same as crown clerks) 330 o o 
 House rent for judges in circuit town (vide table 
 
 2 of Mr. Justice Menzies) ... ... ... 300 o o 
 
 LL
 
 ON THE JUDICIAL SYSTEM. 
 
 Expenses of two judges to form court of appeal 
 
 3o 
 
 o 
 
 
 
 Expenses of witnesses (say less than at present) 
 
 1,200 
 
 o 
 
 o 
 
 Provisions, &c., of prisoners in gaols (say ^ less 
 
 
 
 
 
 I.C3O 
 
 o 
 
 o 
 
 
 > j j 
 
 3OO 
 
 o 
 
 o 
 
 Inspectors of police (30) at 100 
 
 J 
 
 3,000 
 
 
 
 
 
 90 Constables for ordinary duty ) ,. 
 
 6,000 
 
 
 
 o 
 
 60 do. for serving summonses, &c. J 
 
 
 
 
 Forage allowances for 30 constables j 
 
 
 
 
 for ordinary duty... .. ... vat 25 
 
 2,250 
 
 
 
 
 
 Ditto ditto 60 serving summonses, &c. ) 
 
 
 
 
 
 26,630 
 
 o 
 
 o 
 
 Deduct for civil process to be executed by the 
 
 
 
 
 police, and fees paid into the treasury 
 
 3>7 66 
 
 o 
 
 o 
 
 
 22,864 
 
 
 
 o 
 
 System of Minority. 
 
 
 
 
 
 f I. COO 
 
 o 
 
 o 
 
 2 Puisne judges ... ... ... ... ... 
 
 j * O w 
 
 2 4.OO 
 
 o 
 
 o 
 
 3 Clerks and circuit registrars, at 150 .. 
 
 'JT 
 450 
 
 o 
 
 
 
 Transport and personal expenses of judges, &c., on 
 
 
 
 
 circuit, per annum (vide table No. 6 of Mr. 
 
 
 
 
 
 I.77O 
 
 o 
 
 o 
 
 Repairs of wagons, do. do. ... 
 
 '/ / 
 
 IOO 
 
 o 
 
 
 
 
 I 6o7 
 
 IO 
 
 o 
 
 Inspectors of police (30) at 100 
 
 1 ,u\_< 1 
 
 3,000 
 
 o 
 
 o 
 
 
 7 600 
 
 o 
 
 o 
 
 jr *rw 
 
 Forage allowance for 30 constables at 25 
 
 J,uww 
 
 ' 750 
 
 o 
 
 o 
 
 Conveyance of record books 
 
 37 
 
 10 
 
 
 
 Frovisions, &c., of prisoners in gaols 
 
 2,295 
 
 o 
 
 
 
 
 600 
 
 o 
 
 o 
 
 Circuit court prosecutor ... 
 
 1,000 
 
 o 
 
 o 
 
 Summoning jurors and witnesses ... 
 
 1,803 
 
 
 
 o 
 
 20,913 o o
 
 ON THE JUDICIAL SYSTEM. 515 
 
 In round numbers, I conceive that the system of the minority, in its 
 actual working, would prove cheaper than that of the majority by 
 somewhere about 2,000 per annum ; but I do not profess to be a 
 very accurate reckoner, and may, therefore, be shown to be inaccu- 
 rate. How then, Sir, upon the whole is my mind affected in refer- 
 ence to the several plans which have been agitated ? This I shall 
 frankly state. I conceive a Supreme Court of three judges, per- 
 forming two circuits annually as at present, to be the best system 
 that, all circumstances considered, can be devised. No voice has 
 outside this room been raised against it. My hon. friend, or to 
 speak more properly, the majority of the committee, seem to reverse 
 the usual process, and to conclude that the system should be abolished 
 unless some strong manifestation in its favour shall be made. But 
 as my hon. friend beside me (Mr. Ebden) remarked already, it is 
 not customary to agitate for existing institutions. It is considered 
 that in politics, however it may be in morals, Pppe's saying, " What 
 ever is, is right," is a sound sentiment, so as to throw upon those 
 who called for change the proof of its expediency. We apprehend 
 that the agitation should come, if at all, from the other side. But 
 how stand the facts ? The judges are all agains.t you. The Colonial 
 law officer, no man can think more humbly of the individual than 
 I do, but still the Colonial law officer, and three other members of 
 this Council, whose opinions are entitled to far greater weight, form 
 the minority. The attorneys have sent in a well-considered peti- 
 tion, in reference to which my hon. friend had a very fair fling at 
 the lawyers, and a very discreet one too, since it was much easier 
 to suggest that they were interested than to answer their arguments. 
 The capitalists have petitioned against the change, and the mer- 
 chants have joined them. Who have petitioned in its favour ? Not 
 one. The five respected friends who sit before me, without any 
 backing from abroad, devise a most sweeping innovation, and, 
 relying upon their own judgments, oppose themselves to the general 
 opinion so far as that opinion has been expressed. If we were peti- 
 tioned in favour of the proposed change, I will not say that I would 
 therefore sacrifice my own convictions, and destroy what is established ; 
 but when the process is reversed, and we are petitioned not to 
 
 LL 2
 
 5l6 ON THE JUDICIAL SYSTEM. 
 
 make the proposed change, it does, I confess, appear to me extra- 
 ordinary that the matter should be pressed forward as we find 
 to be the case. But as I have said, Sir, I am for the present system, 
 deeming it the best. Should it however be considered by others, 
 though not by me, that what is due to untried men demands 
 more frequent gaol deliveries, I should regard the next best system 
 (not that I recommend it) as being the restoration of the fourth 
 judge to the Supreme Court, the reduction of the terms to three, 
 and the increase of the circuits to three also. Such a change would, 
 indeed, be unfavourable to the judges. It would send each a circuit 
 once every sixteen months, instead of once every eighteen ; and 
 would, besides, throw one of the circuits into a very unfavourable 
 season of the year. I should regret to cause such inconvenience ; 
 but, at the same time, I would be prepared to cause it, for the sake 
 of combining with more frequent circuits the preservation for the 
 public of an efficient Supreme Court. Farther still. With all my 
 dislike of local supreme judges, and I dislike them greatly, I must 
 needs have recourse to them, should it be decided in the proper 
 quarter that there must be four general gaol deliveries in the year ; 
 and then, in a choice of evils as I regard them, I prefer to the plan 
 of the majority, the plan improperly called the judges', by which a 
 judge should be placed at Graham's Town, and another at Graaff- 
 Reinet, who should, together, make four circuits of the Eastern 
 Districts, annually ; leaving the three judges of the Supreme Court 
 to make four circuits through the western division. I prefer this 
 plan to the plan of the majority, because it will not be more expen- 
 sive, and because it keeps open, what the other does not, a real 
 and not a nominal Supreme Court, to which all suitors who please 
 may resort in the first instance, and to which suitors in either of 
 the two local courts may have recourse without delay, in order to 
 correct or control the proceedings in those inferior tribunals. ButI 
 have said that I do not advocate this system, which, while it overcomes 
 some of my difficulties, does not overcome the grave and serious 
 difficulty of localizing single judges, of unlimited jurisdiction, in 
 places where they would not be likely to retain the confidence of 
 the public. And now, Sir, I conclude. I feel that I have exhausted
 
 ON THE JUDICIAL SYSTEM. 517 
 
 myself, and I fear the Council also. Very defectively, I am aware, 
 and in a manner far below the exigency of the argument, I have 
 striven for the preservation of the most important institution in 
 this Colony, its Supreme Court, and contended against organic 
 changes not prompted by public opinion, or public policy, or the 
 practice of any other British Colony. Do not peril a matter of such 
 moment for the sake of the evils which you propose to remedy, 
 evils which may be greatly, if not entirely, abated, without rashly 
 removing land-marks in the manner you propose. A political 
 philosopher has profoundly said, that all that constitutes the pomp 
 and power of the Government of England, her crown, her army, 
 her navy, her parliaments, and her statesmen, serve after all for 
 little else than to enable her courts of justice to arbitrate between 
 man and man. Whatsoever, then, strikes at an intelligent, impar- 
 tial, and uniform administration of justice, wounds the body politic 
 in the very apple of the eye. Reverse the process of civilized socie- 
 ties, abandon the principle of centralizing the supreme feats of jus- 
 tice, localize your judges in remote and obscure villages, and unin- 
 tentionally but inevitably you will deal the administration of justice 
 a deadly blow, to become aware, perhaps, that the life of the law 
 has been taken, by finding when too late that corruption has set 
 in. Let the majority, then, be content with the claim to courage 
 which they have already strikingly established in reference to this 
 question, and not continue to pr ess onward to its disastrous consum- 
 mation a project, the ultimate effects of which I cannot persuade 
 myself that they as yet fully estimate or even clearly foresee. Im- 
 pressed, Sir, with these sentiments, I now move : 
 
 1. "That in the opinion of this Council, an increase in the 
 number of resident magistrates will be found sufficient to supply 
 the principal defects in the present system of administation of 
 justice in this Colony. 
 
 2. "That this Council will he prepared to abridge the period of 
 confinement of prisoners before trial, by every means consistent 
 with the preservation of the constitution of the Supreme Court. 
 
 3. " That the hardship of previous confinement is much aggra- 
 vated by the disgraceful state of the greater number of our public
 
 51 8 ON THE JUDICIAL SYSTEM. 
 
 prisons, which in the opinion of this Council should be repaired 
 and re-modelled as speedily as the colonial finances will allow, in 
 such a manner as to obviate the necessity of using fetters at night 
 as the only means of preventing escape ; and to permit the classifi- 
 cation of prisoners, as well as the complete separation from persons 
 charged with the crime, of any witnesses whom it may be necessary 
 for the ends of public justice to detain. 
 
 4. "That in the opinion of this Council, it will be expedient to 
 obtain the means of transport required by all branches of the public 
 service by contract, instead of impressment, except in such cases of 
 emergency as may imperatively require a deviation from the general 
 rule. 
 
 5. " That pending the completion of arrangements for supply- 
 ing transport for the public service by contract, the existing tariff 
 should, in the opinion of this Council, be re- modelled, so as to raise 
 the scale of remuneration in all cases where it shall seem to be 
 fairly required. 
 
 6. "That no project for lessening the period of confinement 
 before trial, or cheapening the cost of transport for the judges, by 
 substituting Government wagons and horses for those obtained by 
 impressment or contract, which project shall involve the organic 
 change in the existing constitution of the Supreme Court recom- 
 mended in the report of the majority of the judicial committee, 
 could, in the opinion of this Council, be adopted without entailing 
 evils infinitely more serious than any which it was intended to 
 remove. 
 
 7. " That to abolish the Supreme Court of three judges, as at 
 present constituted, in order, by adding two to the present judges, 
 to create five widely separated local courts, to which all suitors must 
 in the first instance resort, subject only to an appeal to three of 
 those local judges annually assembled, would, in the opinion of 
 this Council, soon be found to have shaken public confidence in the 
 intelligent, impartial, and uniform administration of law, and more- 
 over to have entailed upon suitors much practical inconvenience 
 and expense. 
 
 8. " That should Her Majesty's Government consider more fre-
 
 ON THE JUDICIAL SYSTEM. 
 
 quent gaol deliveries to be necessary, this Council will be prepared to 
 support the plan of adding a fourth judge to the Supreme Court, in 
 order that thereby there may be performed three circuits in a year. 
 or any other plan, even.Iess desirable, which shall be consistent with 
 the preservation of a Supreme Court of three judges, to be at all 
 times open to such suitors as may bring the cases there in the first in- 
 stance, as well as to such suitors as may wish to have recourse to it to 
 regulate or correct without delay the proceedings of inferior courts, 
 
 9. " That while this Council is of opinion that the circumstances 
 of the country districts are not such as to make the immediate in- 
 troduction there of jury trial in civil cases expedient, it is at the 
 same time of opinion, that the time has come when that mode of 
 deciding issues of fact should, as a commencement, be adopted in 
 the Supreme Court in Cape Town, from whence, if found to meet 
 the wants and wishes of the public, it may be extended to other 
 portions of the Colony. 
 
 10. " That without entering into any details of the proposed new 
 system of police, this Council is of opinion that it will be found 
 highly inexpedient and detrimental to the public service, to interfere 
 in the manner contemplated by the majority of the committee witl* 
 the useful and long-tried office of field-cornet." 
 
 Let me, Sir, add but two words more. Confining myself to the 
 leading features of the report of the majority, I have not touched 
 upon the question of abolishing the clerks of the peace, which may 
 not yet, perhaps, be deemed to be decided, and respecting which I 
 confess that I am still harrassed with recurring doubts and difficulties. 
 Should I feel it necessary, T shall hereafter take an opportunity of 
 fully considering this interesting question, as well as the equally- 
 interesting question, which is referred to in my last resolution, I 
 mean the utility and importance of the office of field-cornet. At 
 present, I have neither time nor strength for the discussion of these 
 matters ; and expressing my hope that I have said nothing improper 
 or unjust, and desiring that any expression which may be thought to 
 have exceeded the bounds of fair debate may be considered as with- 
 drawn, I sit down, having performed as I was able, what I felt to 
 be my public duty.
 
 1846- 
 
 AS CHAIRMAN AT THE BANQUET TO SIR 
 BENJAMIN D'URBAN. 
 
 \_April 4, 1 846.] 
 
 ON THE PORTUGUESE ALLIANCE. 
 
 The CHAIRMAN said : Gentlemen, the next toast upon my list, 
 is Her Most Faithful Majesty the Queen of Portugal. Gentlemen, 
 the Portuguese alliance is the oldest and the closest that Great 
 Britain has ever formed upon the continent of Europe. It dates 
 from a period even more remote than the accession of the House of 
 Braganza to the throne of Portugal. Through good report, and 
 through evil report, it has been religiously observed. It is an 
 alliance always popular with Englishmen. It deserved to be so. 
 The seamanship of Portugal is widely celebrated, and ought not to 
 be forgotten here, when it is considered that a Portuguese sailor was 
 the discoverer of the Cape ; and the soldiership of Portugal, besides 
 being well known to, and highly appreciated by, our distinguished 
 guest, is memoried by the bones of her brave sons which whiten on 
 many a plain between Torres Vedras and Thoulouse . You will, I 
 doubt not, gladly do honour to the Queen of an ancient and gallant 
 nation, and our Queen's firm ally. Gentlemen, the tribute cf re- 
 spect which you so freely pay will, I hope, call up a gentleman well 
 qualified, from his characters and talents, to represent his sovereign 
 in this or in any other place. Gentlemen, Dr. Moniz has, in his 
 absence, and without any solicitation upon his part, been chosen 
 by the suffrages of Madeira to represent in the Portuguese Cortes 
 that beautiful and important island, and the circumstance is, I fear, 
 to flattering to allow him to decline the honourable, but certainly
 
 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN DURBAN. 52! 
 
 most arduous appointment ; a circumstance which for our own 
 sakcs I regret, because so much learning, urbanity, and gentlemanly 
 .feeling can but ill be spared from our limited society. But when he 
 shall depart for the more stirring scenes of public life, he will, I am 
 certain, carry with him our best wishes, as well ai our conviction, 
 that by efficiently serving his country he will faithfully serve his 
 Queen, whose health without further preface I now give you, " Her 
 Most Faithful Majesty the Queen of Portugal." 
 
 ON SIR BENJAMIN D'URBAN. 
 
 The CHAIRMAN said : Gentlemen, I rise to give you the toast of 
 -the evening, the name of the man in whose honour we are now as- 
 sembled. In discharging, inefficiently I fear, but discharging as I 
 can, that gratifying duty, I persuade myself that I shall best consult 
 your wishes and the manly taste of our distinguished guest, by 
 avoiding everything that might appear at all exaggerated in senti- 
 ment or in language. How this large company comes to be 
 assembled, is soon told. When it became known that Sir Benjamin 
 D'Urban was about to leave the Colony, a strong desire was 
 manifested in many quarters, that he would allow his friends 
 to evince, in such a manner as the present, the feelings 
 which they cherish towards him. My hon. friend right opposite, 
 your vice-chairman (Mr. Ebden), catching and carrying out the pub- 
 lic sentiment, called a meeting, by which certain of us where deputed 
 to wait upon Sir Benjamin, to tell him what our hopes were, and 
 express our trust that he would not disappoint those hopes. The 
 mission prospered ; we came, we saw, and I am glad to say, we con- 
 quered. A nature that utterly abhors all ostentation or display, and 
 habits which lead him not to seek, but to shun, scenes of public 
 exhibition, were found to present no obstacles, for he entered 
 tat once into the motives by which his friends were animated, and, 
 yielding to a good man's reluctance to check a gush of good feeling, 
 he grunted our request, and so he sits, an honoured guest amongst us. 
 jGentiemen, I must have Jeave to say that the strong muster
 
 522 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN DURBAN. 
 
 now before me is creditable to Cape Town and its vicinity. 
 You are not assembled here for any selfish purpose, nor for any 
 factious purpose of mere festivity ; but you are assembled here to 
 show that gratitude is not an empty name amongst you, and to do 
 homage to the noblest work of God, an honest man. Politics 
 this evening we have none, save, indeed, those lofty politics, 
 the noblest far of any older than all party names, and destined, I 
 trust, to live when all party names shall be forgotten politics 
 which teach us that eminent services and stainless character are 
 the best elements of national glory ; politics which teach us that 
 it is the truest patriotism whenever you meet a man of heroic mould 
 to honour him. Did we come here tD promote any sinister 
 purpose, did we come here to sound the shibboleth of a party, did 
 envy, or hatred, or malice, or any uncharitableness, enter into our 
 objects, then, gentlemen, well I know we must have come 
 here without our guest. Why do I say this ? Because his life 
 for the last eight years is before me, and because he that runs may 
 read its lesson. In 1838 he yielded up the Government of the 
 Colony, under circumstances which profoundly touched the 
 general mind, and passed into private life, deprived, indeed, of the 
 outward badges of authority, but not the less on that account, nay ? 
 the more on that account, the most powerful man in the commu- 
 nity. How did he use his power ? A man made of inferior metal 
 giving way to what he might conceive, or christen, a just resent- 
 ment, might behind the scenes have fostered faction and cabal, 
 and used his influence to thwart and harrass his successor, and de- 
 feat or dash his councils and his measures. A man made of inferior 
 metal, while avoiding this error, would have held superciliously 
 aloof from his successor, and taken a paltry pride in parading an 
 ostentatious abstinence from all matters of public concern, when 
 requested as a favour to advise about them. Was such the metal of 
 which your honoured guest was made ? Let those bear witness who, 
 as I do, know the facts ; let those bear witness who know that 
 advice or information was never asked that it was not given in the 
 frankest and most cordial manner ; let those bear witness who in 
 this very room, just two years ago to-morrow, heard Sir
 
 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN o'URBAN. 523. 
 
 George Napier, in his own earnest manner, publicly proclaim 
 that he did not forget, that he could not forget, tha t to the latest 
 hour of his life he never should forget, the noble, disinterested, and 
 unostentatious generosity of spirit manifested towards him at all 
 times, and upon all occasions, by Sir Benjamin D'Urban. Gentle- 
 men, I will not degrade that noble generosity of spirit by talking 
 about tact, and discretion, and hitting a happy medium, and the 
 like. Tact and discretion are doubtless good where there is nothing 
 better, and so is the calculation that can hit a happy medium j 
 but there are things far higher and nobler than these, things of 
 which these are but the poor apes and mimics, things that draw lines 
 where these after all make blots, the soul of a soldier and the feeling 
 of a gentleman. By such has your distinguished guest been governed 
 in life from first to last. He came to this Colony no tyro in either 
 war or politics, but a veteran in both. In that great struggle, of 
 which Dr. Moniz has already spoken, Sir Benjamin D'Urban bore, as 
 you have been told, a leading part. To him, I believe, as Quarter- 
 Master-General of the Portuguese army, may in no small degree be 
 attributed the organization and efficiency of those fine troops, who 
 went shoulder to shoulder with our countrymen through the Penin - 
 sula, and assisted to roll back upon Napoleon and his gallant French- 
 men the tide of conquest. He has mentioned to me, since we sat 
 down, that he was never a day from duty on account of ill-health ; 
 nor did he ever ask leave of absence ; and it so happens that he 
 was present in most of the great Peninsular battles. My friend, 
 Baron Lorentz, who bore at Albuera the colours of the Fusileers 
 until struck down by the " iron tempest," as Napier the historian, 
 in the grand Homeric battle piece which shows for ever that 
 memorable fight, calls the terrible French fire, the Baron, I say,, 
 knows that Sir Benjamin was there, and knows, as every man who 
 fought there knows, how much his services contributed to victory. 
 As long as British soldiers shall revolve the events of that great 
 period, and they will incessantly revolve them, so long will the 
 battle of Salamanca be remembered, and the name of D'Urban be 
 associated with triumph. Gentlemen, it must have been an awful 
 sight to behold while Wellington was in retreat two great armies >
 
 -524 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN DURBAN. 
 
 in a level and open country, moving in parallel lines, in full march, 
 and often within half-cannon shot of each other, each waiting for 
 some favourable moment when some mistake of the adversary might 
 give an opportunity to strike. That moment came, when Marmont 
 trusting to superior numbers, and determined to bring the allies to 
 action, rashly extended his left, discovering a weakened part, a t 
 which then dashed the Cavalry Brigade, led on, by General 
 D'Urban, with such suddenness and success, that the whole French 
 army was overthrown, from left to right, and night alone preserved 
 it from complete destruction. Gentlemen, the conspicuous services 
 rendered by our gallant guest on that important day were not un- 
 noticed, either by his great captain or his companions in arms. 
 From the very battle field that night, an officer whose health I am 
 to give you presently, Sir Henry Hardinge, wrote an account of 
 the victory to a brother officer at a distance. I hold in my hand 
 an extract from that letter, which I shall read to you. How I 
 came to have possession of it may surprise you, and will, I have no 
 doubt, even more surprise our distinguished guest ; but, leaving 
 that in mystery, I shall read it, and, brief as it is, I pray you to 
 note its nature well. "Our friend D'Urban," writes Sir Henry, 
 "led on the Brigade with that intelligence and braver}- which 
 always ensure success ; and he has added to his merit as a 
 staff officer an executive reputation for conducting troops in the 
 -field which alone was wanting to complete his military character." 
 Such, gentlemen, was your guest considered as a soldier. But peace 
 hath her victories no less renowned than war, and these also has he 
 contended for and won. He was called from a most successful ad- 
 ministration of the Government of Antigua to assume that of 
 Demarara, at a time when the latter was surro unded with difficulties 
 of no common magnitude, and there, by wisdom, by temper, and, 
 above all, by even-handed justice, he succeeded in moderating 
 between classes an interest that had long been hostile ; and finally 
 left Demarara loaded with evidences and testimonials of its gratitude. 
 At length he came to the Cape. His story here I need not recount, 
 the Colony has it by heart. It may be read in the respect and 
 affection with which he is ever named in public and in private, in
 
 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN D URBAN. 
 
 the interest taken in everything that concerns him or his, in the 
 alacrity and enthusiasm with which you have rallied round him on 
 this occasion, in the disappointment which is felt that these., walls 
 are not wide enough to admit a greater throng of friends. Gentle- 
 men, he is not reaping where he sowed not, nor gathering where he 
 did not straw. Though his administration of the Government had 
 ended before my arrival in the Colony, I have had abundant oppor- 
 tunies of knowing his assiduity in business, and his untiring zeal in 
 the performance of all his public duties ; while, with regard to his 
 discharge of all his social duties, I may truly say that by the absence 
 of everything hard, or unfeeling, or indicative of a want of sympathy 
 with his fellow men by a happy way of doing a kindness as if he 
 was paying a debt instead of creating one, and by a temper which 
 led him to take that concern in the interests of others which most 
 people reserve exclusively for their own he endeared himself to all 
 ranks and classes, so that his name is rarely mentioned in private 
 companies without bringing out the story of some benefit done, or 
 intended, for those who needed it, by a paternal Governor, who felt 
 for the colonists as for his children. Then came times of trouble 
 and danger, encountered with a promptness, an energy, and a suc- 
 cess, to be expected from a man of his high reputation and proved 
 ability followed by measures which I will not now discuss, but of 
 which it would be base injustice to suppress the fact that the vast 
 majority of the Colony deem them to have been wise, that all with- 
 out exception believe them to have been honest, that they betokened 
 a mind accustomed to take large views, and evince'! a courage which 
 careless of personal consequences, shrank not from dealing with large 
 questions in the manner which a sense of duty dictated. Gentle- 
 men, T speak, I trust, in the spirit of history, and not in the spirit 
 of controversy or debate, from which I am withheld by a feeling of 
 what is due to you, of what is due to myself, and above all of what 
 is due to our illustrious guest. Gentlemen, to the temper in which 
 deprivation of office was endured, a temper equally removed from 
 stoical indifference and theatrical parade, I have already incidentally 
 adverted ; and now, after a twelve years' residence amongs us, he is 
 about again to visit England. Twelve years, gentlemen, is a large 
 segment of the ordinary circle of human life, and such spaces rarely
 
 526 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN DURBAN. 
 
 pass without bringing with them their griefs and their bereavements 
 and of these our honoured guest has borne his share. But amongst 
 his bereavements he certainly has not to reckon the los? of any 
 portion of the public reverence, which year by year has only struck 
 its roots deeper and deeper, and thrown out its branches wider and 
 wider. This meeting is but a small portion of the fruit of that great 
 tree. Sir, we thank you for coming here to-night. We rejoice that 
 God still blesses you with those great blessings, a sound mind in a 
 sound body, and that your faculties and frame, after all your long 
 services, are as vigorous as ever. We entreat you to believe that 
 the heart of the Colony is beating in this room, and that its throbs 
 are throbs of kindness towards you. The acclamations with 
 which your health will be received will be no empty sounds, 
 but sounds with souls in them ; and out of doors they will be re- 
 echoed far and wide. And now, gentlemen, repressing your 
 enthusiasm no longer, I give you the man with troops of friends, 
 and with no enemy, the accomplished soldier, the paternal Governor, 
 the knight without fear and without reproach, the gentleman in 
 word and deed, Sir Benjamin D'Urban. 
 
 ON THE GOVERNOR. 
 
 The CHAIRMAN said : Gentlemen, I rise to give you " His 
 Excellency the Governor." In doing so I shall be very brief. An 
 elaborate panegyric pronounced by the Attorney-General upon the 
 Governor might sound suspiciously, and I shall pronounce none. 
 He needs, I think, no praise of mine. His character is established. 
 He is a man, if I rightly understand him, who has much pondered 
 on the meaning of the term Duty, and has thoroughly mastered that 
 hard word. I need not tell you that he who has done that is raised 
 so high above the common earth that he can look down on many 
 things. His military services, his Canadian administration, his 
 command in India, his manner of losing that command, these are 
 matters that another in my place might touch on with some 
 interest. For myself, I shall say no more of this : that I believe 
 this Colony is now ruled by a man whose heart's desire is, to rule 
 it well. I give you His Excellency the Governor.
 
 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN D URBAN. 527 
 
 ON THE ARMY. 
 
 The CHAIRMAN said : Gentlemen, our next toast is the Army, 
 When I was at school I was whipped, as an elocution lesson, through 
 Pulteney's speech against standing armies ; and to me, as to him, a 
 standing army was a terrible thing. Gentlemen, I have lived to 
 change all that. The liberties of England have never been 
 threatened by the gallant army maintained for her defence ; and 
 nothing can be more certain than that every good soldier is, in the 
 truest sense, a good citizen. Long may the country be proud of the 
 reat actions and high character of her troops, of the reverence 
 for law and order which they discover in times of peace, and of 
 the might and majesty with which, when the trumpet sounds, they 
 move to battle. Gentlemen, I give you the Army. 
 
 ON THE NAVY. 
 
 The CHAIRMAN : My friend, Mr. Justice Menzies, at Sir General 
 Napier's farewell dinner two years ago, gave from this chair, " Bri- 
 tain's right arm, the Navy," and then immediately afterwards" Bri- 
 tain's other right arm, the Army." I remember the expressions 
 because they pleased everybody very much, and myself so greatly, 
 that I deeply regretted, for his own sake, that the utterer of so 
 happy an Hibernianism had the misfortune after all to be only a 
 Scotchman. But, gentlemen, we will now, with all honour, drink 
 that noble service the British Na.vy ; that service so rich in stir- 
 ring recollections and in illustrious names ; that service in think- 
 ing of which every Briton feels, as it were, a sensible enlargement 
 of the heart ; that service which preserves the sacred soil of Eng- 
 land free from the pollution of every foreign foot, by commanding 
 the waters that surround her shores, 
 
 Where Ocean, mid his uproar wild, 
 Speaks safety to his Island child. 
 
 Gentlemen, the Navy.
 
 528 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN DURBAN. 
 
 ON SIR H. HARDINGE AND THE ARMY OF INDIA. 
 
 The CHAIRMAN : Gentlemen, I am now to propose to you, " Sir 
 Henry Hardinge, and the army of India." At any time, and under 
 any circumstances, and setting aside everything but sympathy with 
 the old friendship of two old friends, the friends of Sir Benjamin 
 D'Urban would be prepared to receive with favour the name of 
 Sir Henry Hardinge. The respect and esteem which Sir Henry 
 has never failed to testify for our excellent guest (of a nature not 
 common in these latter times), is characteristic of a warm and 
 generous nature ; while the heartfelt sincerity with which those 
 feelings are returned by Sir Benjamin, are well known to all who 
 know him. Therefore, were Sir Henry Hardinge comparatively 
 an obscure man, were his name and services, instead of being 
 public property but little known to us, we should still be 
 glad to drink his health and wish his happiness, because we should 
 be glad to do anything to gratify our guest ; and because we are 
 sure that a compliment to so true and tried a friend as Sir Henry 
 Hardinge would gratify him very much. But, gentlemen, the 
 toast needs not to stand on any such foundation. By eminent 
 services, military and civil, by gallantry in the field, by sagacity 
 in the Council, by rare capacity for the conduct of affairs, Sir 
 Henry Hardinge raised himself through various grades of office 
 to a position so conspicuous, that when very peculiar circumstances 
 demanded very peculiar qualifications, the eyes of the Govern- 
 ment and the public turned towards him, and he was nominated 1 
 to fill what is certainly the most splendid, and is probably 
 the most important, office in the gift of the British Crown, the 
 Governor-Generalship of India. Gentlemen, it may I believe 
 be safely said that no ruler ever went to India more impressed with 
 the desire of cultivating the arts of peace than Sir Henry Hardinge. 
 To administer, to regulate, to improve, in a word to govern an. 
 Empire won for England by a long succession of illustriou s 
 soldiers and statesmen, he regarded as sufficient for him. Of 
 military glory he had had enough. More extended territories 
 he did not covet. He saw that our Indian Empire had rapidly-
 
 AS CHAIRMAN' AT THE BANOUtT TO SIR BENJAMIN D URBAN. 529 
 
 reached a mighty size, and he knew that nothing but a sound 
 internal administration could consolidate into the strength of the 
 oak what had grown up like a gourd. The Hindoos have a wilid 
 legend which relates how Brama w^s once incarnate in a little fisJi 
 that lived at first in a crystal vase, but grew too large for that, arid 
 was placed in a wide lake, but grew too large for that, and was 
 transferred to the mighty Ganges, but grew too large for that, and 
 had room at last only in .the boundless ocean ; and in some such 
 manner, and by fast degrees, has swelled, and swelled, and swelled 
 again, our Great East Indian Empire. Gentlemen, Sir Henry 
 Hardinge has evinced an anxious desire some may even think an 
 over anxious desire to avoid everything like an aggressive policy. ; 
 but he is a soldier, and an Englishman, and he has yet one arm 
 left to serve his country, and he will not suffer violence any more 
 than he would offer it, and he will teach turbulent and faithless 
 neighbours that where the British standard is planted for protection 
 foreign domination shall not come. Gentlemen, since the death of 
 Runjeet Singh, the old Lion of the Punjaub, who, however 
 terrible towards ethers, always crouched under the great eye of 
 England, that country has presented an unchanging scene of dis- 
 order, massacre, and misrule, and recently the Seiks, in time of 
 profound peace, without provocation, and in violation of treaties, 
 have crossed the Sutledge in great force, and these regions have 
 again become the theatre of war. Gentlemen, it is impossible to 
 contemplate without interest and pride what the Army of India 
 has achieved on both sides of the Indus during the last four years. 
 We can all remember how heavily upon the nation's heaxt fell, in 
 1841, the disasters of Cabul. A whole army was destroyed ; Sir 
 William Nott, a hero now no more, was menaced in Candahar ; 
 Sir Robert Sale, another hero, also gone, was besieged in Jellalabad ; 
 English ladies were prisoners in the hands of the Afghans ; the 
 opinion of our invincibility was shaken, and to shake that opinion is 
 to shake our Empire. But the gloom was transient, and the clouds 
 scon cleared. With a celerity and vigour that reflect credit upocaH 
 concerned, the resources of cur Indian Empire were organized. A 
 brave officer at the head of a brave army pushed across the Indus, 
 
 MM
 
 3O AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN DURBAN. 
 
 forced the terrible Khyber Pass, relieved Jellalabad, and, overcoming 
 many difficulties and a fierce resistance, planted the British 
 standard in triumph on the Bala Hissar of Cabul. That 
 officer was Major-General Sir George Pollock. Gentlemen, 
 to a man who has been honoured with the thanks of Parliament ; 
 who has received from his soveriegn the Grand Cross of the 
 most honourable order of the Bath, which your distinguished guest 
 also has worn and wears, and who, higher yet, enjoys the conscious- 
 ness of having done his duty, our humble meed of approbation 
 could bring no additional renown ; but I regret that the loss of a 
 brave son, who following in his father's footsteps fell fighting in 
 the late action, and as yet but feeble health, have prevented Sir 
 Gorge Pollock from meeting Sir Benjamin D'Urban upon this 
 occasion, as we know from him self he would otherwise have gladly 
 done. Gentlemen, 1843, as well as 1842, was found pregnant with 
 great events upon the Indus. The glories of Clive and Wellesley, 
 of Plassy and Assaye, were equalled or eclipsed at Meanee and 
 Hyderabad, when Sir Charles .Napier, notwithstanding a startling 
 disparity of force, trusting to his own sublime heroism and resolu- 
 tion and the steadiness and determination of his men, broke the 
 strong Beloochee power, and added fccinde as a province to our 
 Empire in the East. And now, further up the great river, the army 
 of India is contending in the Punjaub. Two great battles have 
 been fought and won. They have indeed been purchased by the 
 blood of the brave. The fine, frank, open-hearted veteran Sale is 
 down, and has widowed a lady whose Roman fortitude and courage 
 so. widely celebrated, now meet, and I trust equal, their greatest trial. 
 In the long list of the dead we read tidings which will carry 
 mourning into many a home and many a heart in England. But 
 they have died as soldiers are prepared to die, and have proved 
 again, what was often proved before, that not inequality of 
 members, not disadvantage of position, not inferiority in metal, 
 not the fatigue of forced marches, not the sharp pangs of hungers 
 not the raging of intolerable thirst, can repress the noble 
 ardour of our Indian army, or enable any enemy throughout the 
 East to sustain themselves against its never failing bayonets and its
 
 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN o'uRBAN. 53! 
 
 well directed fire. Gentlemen, of the issue of the struggle in which 
 the Indian army is now engaged, no reasonable doubt can be enter- 
 tained. It would doubtless soon be called to cross the Sutledge for 
 further conquests, and when called to cross it will not fail its general. 
 Two thousand years ago and more, when Alexander the Great was 
 in the Punjaub, he vainly strove, in the neighbourhood of the Sut- 
 ledge, to induce his army to accompany him further. With eyes cast 
 down, and in unbroken silence, they listened to those reproaches of 
 their mighty leader which history has pre served, or has pretended 
 to preserve. " Where," he exclaimed " is your eager shout, the index 
 of your alacrity ? Where are the countenances of my Macedonians ? 
 I do not know you, soldiers !" The British general will never need 
 to address his troops in such a tone as this. Their well-known 
 shout, their English shout, that shout which, rising above the roar 
 of battle, appals the hearts and loosens the knees of foemen, will 
 make itself heard in every danger. In all human probability 
 there is yet more work for them to do. Once over the Sutledge 
 and it is rot unlikely that another great battle will be fought, and 
 another victory added by the army of India, to its long list of 
 triumphs. But be that as it may, I cannot doubt that all opposition 
 is by this time subdued ; and that the English flag is now flying 
 over the city of Lahore. Gentlemen, we couple upon this occasion 
 the name of Sir Henry Hardinge with the army of India. Need I 
 say that we do so through no feeling of disrespect to its gallant 
 Commander-in-chief? We know that a braver man than Sir Hugh 
 Gough never yet, taking his life in his hand, rushed on into the can- 
 non's mouth . But we associate to-night the name of the second in 
 command because we regard the Governor as well as the soldier, and 
 because, also, we desire in this way to mark the friendly relation in 
 which Sir Henry Hardinge stands to our distinguished guest. Gentle- 
 men, I give you " Sir Henry Hardinge and the army of India ! " 
 
 MM 2
 
 532 AS CHAIRMAN' AT THE BANQUET TO SIR BENJAMIN DURBAN. 
 
 ON SIR G. NAPIER. 
 
 The CHAIRMAN : I am now to give you the health of a man 
 never to be named by me without a deep feeling of affection, our 
 late Governor, Sir George Napier. If it be true that out of the 
 abundance of the heart the mouth speaketh, I should have much 
 to say in reference to this toast. But time draws on, and I have 
 spoken much, perhaps too much, and I must not now indulge my- 
 self in dilating on a topic than which none can be to me more 
 pleasing. Gentlemen, Sir George Napier, as might be expected 
 from any member of his gallant family, was as brave as the sword 
 he wore, and he had such a lofty scorn for anything mean or base 
 that he would have lost his remaining hand rather than stoop to 
 tolerate it. Our distinguished guest was not an easy man to suc- 
 ceed as governor, but Sir George Napier nevertheless did what he 
 deemed his duty, with what success it is not for me, as an officer 
 of his Government, to say. Nature had given him an impetuous 
 spirit. It is such men who volunteer to lead storming parties, as 
 he did at Cindad Rodrigo ; but she had also given him a large 
 heart ; and no one can say that he ever triumphed in any man's 
 downfall, or knowingly stood in the way cf any man's fair advance- 
 ment, or descended to job for any man, or refused any man a reason- 
 able kindness which it was in his power to bestow. These qualities 
 earned for him the respect and goodwill of the inhabitants, and when 
 he left your shores I saw the soldier's tear, so much was he touched 
 by kindness showed towards him ; and the additional compliment 
 which you are, I see, to-night prepared to pay him, in which our 
 guest, I know, is ready heartily to join, will reach him in England, 
 and convince him that, as he has not forgotten us, so by us he is 
 not forgotten. Gentlemen, I give the health of Sir George Napier. 
 
 ON THE JUDGES. 
 
 The CHAIRMAN said : Gentlemen, I now call upon you to drink 
 the Judges of the Colony. The station and office of these high
 
 AS CHAIRMAN AT THE BANQUET TO SIR BENJAMIN DURBAN. 533 
 
 functionaries would of themselves demand our respectful notice, 
 even were these functionaries less worthy of our confidence and 
 regard. To your judges mainly are entrusted the decision of some of 
 the most important questions that can affect you as social beings, 
 questions affecting reputation, property, liberty, and life. Gentlemen, 
 a practitioner in the Supreme Court may be allowed to bear his 
 testimony to the learning, uprightness, perfect independence, and 
 obvious anxiety to do justice, by which the bench of this Colony is 
 creditably distinguished. Gentlemen, [ regret that the Chief Justice 
 is not here in body, but I am sure in spirit he is with us. I cannot 
 doubt but that, did public duty permit, he would readily forsake all 
 the charms of the country through which he is now travelling in 
 order to look upon such a muster as the present, collected for such 
 an object. He may now be exclaiming, in the words of Scott's 
 animated couplet, slightly altered, 
 
 'Twere worth ten years of circuit life 
 One glance at their array ! 
 
 But Mr. Justice Menzies is here, and happy to be here ; and so is 
 the worthy connection of our distinguished guest, Mr. Justice 
 Musgrave. Gentlemen, " The Judges." 
 
 ON THE COMMERCIAL AND AGRICULTURAL 
 INTERESTS. 
 
 The CHAIRMAN : Gentlemen, the prosperity of this Colony 
 rests upon two pillars, its commerce and its agriculture. Gentle- 
 men, the great commercial middle classes must by every English- 
 man be regarded as of great importance and as deserving of great 
 respect. Buon'aparte contemptuously called the English " a nation 
 of shopkeepers," but in the long run the shopkeepers of Eng- 
 land got the better of the chivalry of France. I trust that the 
 merchants of this Colony, looking to the rock from which they are 
 hewn, the commercial interest of England, will be always mindful
 
 534 ON EXPENSES OF A MISSION TO ABORIGINAL AND NATIVE TRIBES. 
 
 to uphold that character for high integrity which makes the name 
 of a British merchant respectable throughout the earth, and forms 
 the only sure foundation for commercial prosperity. Nor must 
 our agriculture be overlooked ; your produce determines your con- 
 sumption ; your exports govern your imports ; and it is by your 
 growing agriculture that your growing commerce must be fed. 
 Both are now prospering amongst us ; may both go on and prosper. 
 Gentlemen, I give the Commercial and Agricultural Interests of the 
 Colony. 
 
 ON EXPENSES OF A MISSION TO ABORIGI- 
 NAL AND NATIVE TRIBES. 
 
 [Legislative Council, October 27, 1846.) 
 
 ATTORNEY-GENERAL : I may as well, perhaps, take the liberty of 
 stating to the Council what occurs to me respecting this British 
 Residency. Having been called upon by His Excellency the Gover- 
 nor to accompany him to Griqualand in the course of last year, and 
 having been there employed in aiding him to make those arrange- 
 ments of which this Residency forms a part, I feel in some degree 
 called upon to offer my sentiments upon the subject. The Council 
 will not fail to recollect that we have had, within a very short time, 
 two marches of troops, attended both of them with great expense, 
 for the purpose of pacifying, as it was called, the people beyond the 
 Great River. The necessity of these military movements was a very 
 urgent one, and arose out of a state of things of a very plain and 
 simple nature. Between the Great River and the Dragensberg, and 
 running up nearly as far as the 25th degree of latitude, there are 
 located in greater or lesser fixity of tenure a population of colonial
 
 ON EXPENSES OF A MISSION TO ABORIGINAL AND NATIVE TRIBES. 535 
 
 extraction, numbering several thousand souls, a population in com- 
 parison with which the people for whom the new settlement of Natafl 
 was established were of small account ; the mass of our emigrant 
 farmers being between the Great River and the Dragensberg, and 
 not between the Dragensberg and the sea. Under these circumstances 
 the question was, whether Her Majesty the Queen was to leave 
 those emigrants without protection and control, to allow the painter 
 to be cut, and those who have taken to the boat and left the ship 
 to shift for themselves, and thus to leave room for the introduction 
 of a state of things similar to that which led to all the expense* 
 anxiety, trouble, and excitement, which preceded, and brought 
 about, the establishment of a settled Government at Nalal ? The 
 alternative course was very easy. There could, in one point of 
 view, have been no difficulty in permitting the Boers to assert a 
 virtual independence. But Her Majesty's Government could never 
 take this easy course, because, even if the law of nations allowed 
 us to send our people amongst native tribes, and leave them there 
 alone, the sentiments and feelings of the English nation would never 
 allow us to do so, nor to permit our colonists to invade, with numbers 
 and with strong hand, the territories of men unable to compete wifti 
 the new comers for the possession of the soil. We must, to some ex- 
 tent, follow and control those whom we cannot keep in the Colony. 
 No other principle than this led to the creation of the new settle- 
 ment of Natal. No other principle than this led to the military 
 movements beyond the Orange River. The very great expense 
 of these was incurred in order to settle disputes between the Boers 
 upon the Riet, the Modder, and the Caledon Rivers, and the Gri- 
 qua Captain, Adam Kok. When the Governor was on the spot 
 last year, he soon saw that unless some system were devised for 
 settling disputes, in their first stages, military marches and such 
 things must be matters of frequent occurrence, and he therefore 
 set about considering how such a system could be devised. One 
 essential point of such a system was very evident. It was plain 
 that, situated as the Boers and the natives were with regard ts 
 each other, nothing but the presence upon the spot of some officer, 
 influential frcm his position, from the force at his command, and
 
 53 ON EXPENSES OF A MISSION TO ABORIGINAL AND NATIVE TRIBES. 
 
 from his close connection with the Colonial Government, whose 
 great duty it should be to keep the peace, could avert continual dis- 
 cord, with all its consequences. For how were those parties re- 
 spectively situated ? The Griquas, I speak of them as representing 
 a class, asserting ownership of the soil and social independence, 
 would not sink into serfs, or become hewers of wood and drawers 
 of water for the strangers settled in their country, or submit to 
 them as to a paramount. Upon the other hand, there was not a 
 Boer beyond the boundary who would not laugh 
 to scorn the idea that they, with their Raads and 
 communities, and arms in their hands, were to sub mit their persons 
 to the jurisdiction of Adam Kok and his Griquas, and live like 
 Frenchmen in England, or Englishmen in France. Not Grotius, 
 Puffendorf, and Vattel together, could persuade bodies of men such 
 as our emigrants to recognize the authority cr laws of such a 
 people as the Griquas. And there the two parties were placed, in 
 perpetual contact, and with constant causes of dispute, without any 
 admitted superiority on either side ; the Griqua standing upon his 
 territorial rights, and the Boer upon his positive power. In the 
 absence of all authoritative meditation, every trifle was liable to 
 swell into a war. From very small beginnings, flowing forth from 
 most miserable fountains, there gradually collected amass of waters 
 which threatened extensive devastation, and troops and money to 
 a large extent were finally needed to quell dis turbances, which an 
 active officer at a salary of j6oo per annum, and with arrangements 
 which place at all times a considerable force within his reach, 
 would have entirely prevented. ' What was wante dwas an intelligent 
 and honest man, half magistrate, half soldier, who, whenever dan- 
 ger threatened, could assert an armed intervention, and settle all 
 disputes by his equitable and authoritative mediation. The origin 
 of the war last year, what was it ? Two Basutos, domiciled with 
 the Griquas, were, for some alleged offence, flogged by a Boer. 
 The men thus illegally punished complained to Adam Kok, who 
 summoned the offender to appear and answer the complaint. As 
 was to be expected, no notice was taken of this summons, and when 
 Adam Kok, miscalculating his power, thought to use force, the Boers
 
 ON EXPENSES OF A MISSION TO ABORIGINAL AND NATIVE TRIBES. 537 
 
 drew together into their laagers ; and the result was a general war, with a 
 rapid march of cavalry and infantry, of His Honour the Lieutenant- 
 
 Governor, and of the Governor himself, and a consequent expense 
 of something about .30,000. What would have been the case had 
 there been then a British Resident ? Why, but the other day we 
 had some proof of what such a functionary could effect. Certain 
 Boers, instigated by one Jan Kok, a troublesome personage from 
 Graaff-Reinet, taking advantage of the opportunity presented hy 
 the employment of the troops in conflict with the Kafirs, deter- 
 mined to force Adam Kok to restore the cattle received by him at 
 the termination of last year's war. They put forward a manifesto, 
 conceived in not intemperate language, but which, after all, 
 amounted to a declaration that the Griquas should, if necessary, 
 be spoiled with a strong hand. Had there been no British Resi- 
 dent, had Captain Warden been contending with the Kafirs, nothing 
 on earth could hive prevented the Boers from being out against the 
 Griquas, and the Griquas against Boers, and, in one way or other, 
 either by the Griquas falling back upon the Colony, or by the 
 Boers calling for sympathy from their friends on this side of the 
 river, the peace of the Colony in that direction must have been 
 perilled. What did Captain Warden do ? With admirable spirit 
 and celerity, he called out the native contingents, which by treaty 
 are placed at his disposal, combined with these his own handful of 
 men, pushed forward with promptitude to where the turbulent were 
 assembled, demanded their instant surrender, and on their refusal 
 opened a fire, which, with a trifling loss of life on the part of the 
 disturbers of the public peace, and none upon his own, soon had 
 the effect of quelling all opposition, of sending in several prisoners, 
 and of restoring perfect tranquillity to that quarter of the country ; 
 so that in a few days a conspiracy was nipped in the bud, which a 
 had it been left to itself, would have become most formidable ; 
 and in this way an officer, whose salary is but j6oo a year, saved 
 
 probably some 50,000 
 
 Mr. Ross. To whom ? 
 
 The ATTORNEY-GENERAL . My hofl. friend asks, to whom ? and, 
 speaking frankly, I will not deny that it was the Governor's idea,
 
 ON EXPENSES OF A MISSION TO ABORIGINAL ANTJ NATIVE TRIBES. 
 
 and certainly my own confident hope and expectation, that Her 
 Majesty's Government, considering the nature and operation of tke 
 office, half civil and half military, civil to those who are civil them- 
 selves, military to those who are of another temper, would have seen 
 in it such an obvious saving to the British treasury, which must bear 
 the burthen of most of the charges which the Resident's exertions 
 tend to render unnecessary, as to have decided that the whole ex- 
 pense of the establishment should be taken over and provided for 
 by Parliament. This, however, Her Majesty's Government have 
 declined to do. Such a charge would certainly be a novel one ; 
 and probably there is nothing which the Home Government feels 
 to be matter of more embarrassment than that of proposing novel 
 votes ; for it so happens that the House of Commons, though no doubt 
 a far inferior body, resembles in some degree the august assembly 
 which I have now the honour to address, and is wonderfully given to 
 object to every item which they are called upon to vote for a first 
 time ; whereas expenses which have the stamp of antiquity upon them 
 pass with comparative ease ; and so I take it that the Secretary of 
 State, standing, in regard to the House of Co mmons, in that wholesome 
 awe which my hon. friend the Secretary to Government feels for 
 the scrutiny of this Council, was very unwilling to put such a charge 
 upon the Imperial estimates. Be the cause, however, what it may, 
 certain it is that her Majesty's Government did two things : approve 
 decidedly of the establishment of the Residency, and as decidedly 
 disapprove of paying for it out of British funds ; and while I must 
 clearly and candidly express my regret that the question was not 
 viewed at home as I at one time hoped it would be, I am delibe- 
 rately of opinion that it is better for the Colony to pay for this 
 establishment, rather than that it should not be paid for at all. The 
 question is not whether the charge ought to fall upon the Colony 
 rather than npon the British treasury. Upon that point I have 
 already given my opinion. But the question is, whether, connected 
 as this Colony is with the emigrant farmers, and the country in 
 which they reside, it is not better to support the charge out of 
 colonial funds than to permit the former state of things to be restored- 
 These emigrants are a portion of ourselves ; we are morally re-
 
 ON EXPENSES OF A MISSION TO ABORIGINAL AND NATIVE TRIBES. 539- 
 
 sponsible for them. Friendly tribes in our neighbourhood have a right 
 to expect that they shall not be oppressed by colonists who locate 
 themselves in their territories. It is for your interest that your fel- 
 low colonists should be kept to their good behaviour. Tell me 
 how you would have stood in England, in regard to the present 
 Kafir war, had the Governor's manifesto not exonerated the 
 colonists from every imputation ? You know how the last Kafir 
 war was viewed by many. But with respect to the present war, 5s> 
 there a newspaper in England, is there a public body, is there one 
 from amongst those called contemptuously (for my own part I think 
 and speak of them respectfully) philanthropists, who has come for- 
 ward to accuse you ? None. Think you, then, that the Governor's 
 emphatic announcement that not a single act of violence or outrage 
 had been committed for seven years and upwards throughout all 
 Kafirland has had no effect ? Do you believe that if that announce- 
 ment had been reversed, and we had been obliged to admit that 
 colonists had left us who had seized the lands and oppressed the 
 persons of the Kafirs, there would have been the same sympathy 
 for the Colony which now prevails ? or that we should receive from, 
 the British Government, and the British people, the same support ? 
 No doubt the war is now with Kafirland. But the principle is 
 general, and I make the allusion to convince you how short-sighted 
 would be your policy were you to leave it in the power of any tribe 
 or people with whom you come in contact, to charge upon any of 
 your emigrants the commission of any crimes or offences which we 
 have power to repress. Because this Residency may effect a large saving 
 for the Home Government, is no reason why it should not also be a 
 benefit to us. I do, indeed, think that, had I been Secretary of State, it 
 would have occurred to me to pay the money. But then, looking at our 
 relations with the emigrant Boers and the tribes beyond, to the 
 positive misery of recurring disturbances in that quarter, to the 
 advantage which we must derive from the preservation of our 
 character, and to the comparatively trifling outlay which is required 
 at our hands, I am clearly of opinion that such an arrangement as 
 that which has been made, one involving no claim of sovereignty, 
 no demand of soil, but merely the residence of an officer, competent
 
 54-O ON EXPENSES OF A MISSION TO ABORIGINAL AND NATIVE TRIBES. 
 
 to compose all differences, and who will treat as enemies all persons, 
 white or coloured, who seek by violence or injustice to disturb the 
 public peace, is one so important and so useful as to call upon this 
 Council to support it rather than that it should sink ; and I have 
 therefore thought it right, for the reasons stated in the outset, to 
 make these remarks, in order to explain in some degree the posi- 
 tion of the question, and to justify the vote which I shall give in 
 favour of the grant.