§ On the question being put for going into a committee on this Bill;
§ Mr. Creevey
rose to oppose any further progress of this Bill, which had been miscalled a Bill of Reform. It would, in effect, sanctify all abuses committed 435 against a Bill of which had passed in the 22d of the King. That Bill, which was not, as had been stated, brought into that House by Mr. Burke, originated in the House of Lords, where it was introduced by the late marquis of Lansdowne, then lord Shelburne; it was brought into the House of Commons by lord Kenyon, then attorney general; who said on the occasion, that its intention was, to compel all persons who held offices in the West Indies to reside in the places to which they were appointed. It was true, that in the enacting part of the Bill those offices only were mentioned that were held by patent; but the reason of this was, that it was in the power of the crown to compel those who held by commission, to reside, without the interference of the legislature. Notwithstanding this law, sir E. Nepean, who was governor of Bombay, held an office in Jamaica by patent; and Mr. King, who held an office by the same species of authority, held an office in England, equally incompatible with his residence in the West Indies. There was, it was true, a provision in the Act, by which a leave of absence could be granted by the governor and council of the island in which the office was holden. He was curious to see in the case of sir E. Nepean and Mr. King, what sort of thing perpetual leaves of absence could be: he doubted not, when they were produced, that the learned gentleman (Mr. Stephen) would contend that there was a vested right in a leave of absence, as well as in an office held at pleasure. The hon. gentleman then read a copy of a commission, by which the office of receiver at Berbice was granted to the hon. G. Capell, who is also a commissioner of land tax in the county of Stafford. He contended, that this commission, having, like all others, a declaration that the office was only holden during the King's pleasure, it could not surely be necessary to pass a law to compel residence. The advocates of this Bill (said the hon. gentleman) are suspicious reformers: for, in the first place, it is they who have sinned. [No! from the ministerial bench.]—On looking over the list of the place-holders in question, the names of lord Hobart and lord Castlereagh both occurred several times. Indeed, he would stake his life that the whole anxiety for the present Bill arose from one little passage, viz. "And be it further enacted, that nothing in this Act shall be construed to extend to any existing 436 appointment or leave of absence granted before." By this pretty device, it was intended to support the leaves of absence, which the proposers of the Bill well knew to be too rotten to support themselves. If the Bill was pressed, he should divide the House on it, and propose what be brought would be a much better measure—a resolution that the law had been violated in the letter, in the case of the holders of colonial offices by patent; and in its spirit and effect, by the holders of those offices by commissions.
§ Mr. Goulburn
stated, that when he had first the honour of submitting the present measure to the House, he had in no degree anticipated the opposition which it appeared that he was now to encounter; for, whatever apprehensions he might have entertained of being considered as an intruder on the province of reform, which the hon. gentlemen opposite arrogated exclusively to themselves, they were removed by the general expression of approbation and concurrence with which it was received on its first introduction. He was still less prepared to hear the present Bill stigmatised as one brought in expressly for the purpose of perpetuating existing abuse, and sanctioning the illegal violations of a former statute. As the hon. gentleman thought it necessary to give the history of that Bill (the 22nd of the King), it did not appear to Mr. Goulburn improper to inform the House and the hon. gentleman, that it was brought into the House of Lords, and passed through that House, precisely in the shape in which the present Bill was submitted to parliament. During its progress through this House, it was limited in its operation to patent places: probably in consequence of the suspicions of those who thought, with the hon. gentleman, that the government had no right to meddle with reform; and who therefore proposed an alteration which had the effect of rendering an useful Bill altogether nugatory. That the ground on which the former Bill was introduced was that stated by the hon. gentleman, namely, that of reforming places which were from their tenure out of the reach of the prerogative of the crown, was altogether incorrect; for, as the Bill had only a prospective operation; it was as much in the power of the crown to have introduced a clause of residence into future patents, as to compel the residence of persons holding offices during pleasure. The hon. gentleman had interpreted the former Bill as depriving the 437 absent patentee of all claim to salary while absent, and stated his life on the accuracy of this interpretation. Mr. Goulburn, however, thought that the fact of the salaries having been paid to absent patentees, was evidence that this construction was incorrect. He had never found that any persons were willing to pay sums, sometimes of considerable amount, to those who had no legal authority to demand such payments; and he was still less inclined to believe, that the persons resident in the colonies, from whom the fees were demanded, which constituted the salaries of their officer, would have paid them if the authority of the patentee had admitted of a doubt. There was, however, another circumstance to contradict the hon. gentleman's opinion; which was, that Mr. King's claim to the fees of his office had been contested in a court of law, and had been established by its decision in his favour.
It appeared to Mr. Goulburn, that the measure proposed as a substitute for this Bill, was one of the greatest cruelty and injustice; being no less than to deprive those who had received such offices (on the express understanding of non-residence, and of being allowed to appoint a deputy) of what had been in most cases the only reward which they had received for meritorious public service. He did not believe there was any one in the House who would, in his own case, avail himself of the letter of an agreement in opposition to its understood engagements, with a view of being released from its obligation; and he could not consent to impose either upon the crown or the parliament a line of conduct which would be justly considered, in an individual, to be both unjust and dishonourable.
The hon. gentleman had at length disclaimed his former opinions as to the œconomy of abolishing colonial offices, and appropriating their salaries to home services. Mr. Goulburn was glad to hear this recantation; but even if the measure originally suggested had been feasible, Mr. Goulburn would have thought it unadvisable. The House had often had reason to lament the feelings which were found to be prevalent in the colonies; to observe the distinctions which were made between man and man, not on account of their qualities, but of their colour, and to reprobate the conduct to which such distinctions gave rise. The source of this evil was, the stagnation of all colonial 438 society, arising from the repugnance which was felt to a residence in the colonies. By inducing therefore respectable persons to reside there, more would be done to remedy this crying evil than by any other possible mode; nor could Mr. Goulburn believe, that the House would, for a moment, permit the paltry saving of a few thousand pounds to weight against the adoption of a measure which was essential to the security of the colony, to the happiness of the colonial population, and above all essential to the character of this country.
§ Mr. Creevey
thought an attention to this subject was particularly called for at the present time, from the near prospect we now had of peace; when a number of most meritorious persons, in consequence of the diminution of our naval and military establishments, would be reduced to a scanty half-pay. It was not surely at such a time as this that those places, which might be conferred as an honourable reward on the services of our gallant countrymen, should be disposed of to increase ministerial patronage. The hon. member concluded with moving, as an amendment, instead of the words "that the Speaker do leave the chair," the following Resolution:—"That it appears to this House, that by the 22d of the King, no persons holding colonial appointments are permitted to reside in this country; that nevertheless many persons holding such appointments by patent, do reside in this country, contrary to the express letter of the Act; and many others, not holding them by patent, contrary to its evident meaning and spirit; that this is an abuse and violation of the law, calling loudly for inquiry and correction."
§ Sir J. Mackintosh
said, it was true that there were abuses of non-residence against which it was proper to guard; and was of opinion, that to frame some new regulations, with respect to the granting of leave of absence, would be wise. He did not agree with his hon. and learned friend (Mr. Stephen) in the line he had taken as to the "vested right" which he supposed colonial officers to have in the situations to which they were appointed during pleasure; but at the same time, he thought long established usages ought not at once to be overthrown, to the run of individuals. It appeared to him, that colonial offices might have been conferred on persons, who had formed their plans of 439 life on a belief, that residence would not be required. They had been ignorant of the law on this subject; or at the time they received their appointment, they were possibly of an age not sufficiently mature, to be aware of the condition which accompanied it. That persons thus circumstanced, should lose the income on which their whole plan of life had been formed, was, in his mind, inconsistent with the maxims of wise and liberal government. He concurred with that great man, (Mr. Burke) who had by mistake been said to be the author of the Act formerly passed on this subject, in thinking that "tenderness to an individual cost nothing to a state; that that which was every thing to a man, was nothing to the resources of a nation; so that the principle complained of, was adhered to no longer." To adopt now the resolution moved as an amendment by the hon. gentleman (Mr. Creevey), to compel those holding colonial offices to reside, would be to compel the greatest part of them to resign. Doing this, they would reward the exertions of the present government by throwing into their hands a great deal of patronage, the result of long connivance and abuse in their predecessors. Was it thought that the present administration was so superior to the ministers who had preceded them, that the patronage, improperly exercised by them, would be unexceptionably employed by these, in rewarding that distinguished valour which, displayed by sea and land, had placed this country so high in the estimation of the world. He, for his part, was not disposed to pay their virtue so high a compliment as to assume that they were so much better than all who had gone before them. He could not see the wisdom of placing such boundless confidence in them to the ruin of many unoffending persons. He apprehended, that the objection, made by the hon. gentleman near him, might be obviated, by omitting that part of the clause that he had noticed, which provided that persons holding appointments before the passing of the Bill, should not be affected by it. This provision, as he thought it unnecessary, he could wish to see omitted.
§ Mr. Stephen
said, that at the time this Bill was first brought in, it seemed to be the opinion on the other side of the House, that it was highly honourable to the persons who introduced it, and to the colonial department. The gentleman on that side were then unusually fair and candid—it 440 was a pity that they changed their minds so very suddenly. With all their love of reformation, there appeared something like jealousy, at having a measure of this nature introduced by a young rival. The hon. gentleman (Mr. Creevey) expressed his conviction, that the Bill would frustrate reformation in the colonial offices; and pretended to discover some plot for this purpose in the concluding proviso of the Bill, which took away its application to existing appointments. In the Bill formerly introduced by the member for Corfe Castle, there was a saving clause of the same kind; and it was the ordinary and parliamentary mode of proceeding in cases of this kind; and yet it was in such a clause that he pretended to discover this plot to frustrate the reformation intended by the measure. It was not unusual to put such constructions upon the best measures; but the method now had recourse to was without example. The clause was represented as productive ofAll monstrous, all prodigious thingsSerpents, and hydras, and chimeras dire.A phrase used by him upon a former occasion was alluded to, and a cry was raised against him for the way in which he applied the term "vested interests." He should be glad to know what construction the hon. gentleman (Mr. Creevey), in the accuracy and clearness of his fancy, would put upon these terms—(A laugh)—A laugh might be easily raised, but a laugh was no proof that he (Mr. Stephen) used the words improperly. He should wish to hear the laugh raised against him justified by a close definition, and not supported merely by sarcasm. The learned gentleman (Mr. Creevey) so much forgot his legal in his political studies, that he seemed to think nothing vested, but what was held in perpetuity. Did he never hear of vested interests for a term of years, or in the funds? Where then was the absurdity, to justify the laugh raised against him? Was it because he applied the words to places held during pleasure? Could nothing be a subject of unjust invasion unless it was held during life? If the hon. gentleman's (Mr. Creevey) idea of the matter was a right one, the gallant officers who would now retire upon half pay, might be deprived of that half pay, as it was not held by patent. Did he mean to say, that places not held by parliament were to be at the mercy of every reformer? He hoped they would answer the "master in Chancery" fairly, and not 441 screen themselves again under a sarcasm. What he said, and must again say, was, that it would be monstrous, in a moral point of view, that it would be converting public spirited reformation into Jacobin reformation—to deprive persons of their places without compensation. So far from thinking the clause objected to a blemish, he considered it indispensable in such a measure. Part of the hon. gentleman's (Mr. Creevey) plan was, to apply to colonial purposes the money that would arise from the suppression of some colonial offices; he should however have known, that the parliament of this country disclaimed the practice of colonial taxation, except with respect to commerce. Did he mean to say, that the fees were to be received as before, and disposed of by parliament? The hon. gentleman never was in the West Indies, and could not know what was suffered by Europeans residing there. Did he think that men of talent would expose themselves to all the hardships of that climate for a bare subsistence, and on the condition that they were never to obtain leave of absence? It was proper that persons in situations there should return to Europe periodically, to get rid of the rust they must necessarily contract, and to renew themselves, like the giant An œus by touching their mother earth. Without having it in his power to return home and refresh his constitution, no man of talent would accept of a place in the West Indies. Giving sinecures in the colonies as the reward of merit, was rather a relief than a burthen to this country; for otherwise, such persons must be rewarded from some other source. To deprive persons of those places which they now held, would, in his mind, be the highest injustice.
§ Mr. Creevey
explained. He thought before, that the right hon. gentleman (Mr. Stephen) misapplied the term vested rights; and by the illustration now given, he was the more convicted of this. He (Mr. Creevey) admitted there might be vested interests in places not held by patent. He admitted, that the right hon. gentleman's place was of that nature. He was asked, if he never heard of vested interests? To this he would reply, that he often did not hear of such; but if a person were to go into the office of the master in Chancery, and show a piece of paper, by which he held a place of 2,000l. a year, the master, if he did his duty upon such a consultation, would say, that he held a 442 contingent, and not a vested, interest in the place.
§ Mr. P. Moore
said, that the Bill, when it was introduced, professed to remove an existing evil; which, in his opinion, it would not do. The Bill, as the learned gentleman (Mr. Stephen) observed, was certainly received with some cheering from that side of the House; but the cheering was applied to the principle upon which the Bill was said to proceed; and because it was stated by the person who brought it in, that the noble lord at the head of the colonial department would, by this measure, deprive himself of much self-indulgence, by giving up his power of granting leave of absence. This, however, was not the case; as the Bill applied only to governors and other officers abroad. There ought to be a return of all leaves of absence for the last 32 years, laid upon the table, that the House might have some proof of the necessity of such a Bill. They should likewise know the jurisdiction under which the governors acted in granting leave of absence. There was one instance, of a governor at present residing in this country, who removed a judge from his place; he also removed the sheriff, and the attorney general, and persons holding patent places. As he saw no grounds for this measure, he mast vote against it.
§ Sir S. Romilly
said, that on his part at least there was no personal hostility; and in the opinion he should deliver, he would be influenced by no consideration of that nature. He understood his hon. and learned friend (Mr. Stephen) to say that offices held at pleasure were vested interests. He did not know whether he used the words in a legal sense, or merely to imply that it would be unjust to deprive persons of such places. In law, every thing was vested that was not contingent; but when his hon. and learned friend spoke thus of places held at pleasure, surely he did not mean to say that it would be illegal to take them away. Vested interests, indeed, could not be taken away without a violation of law. The learned gentleman, perhaps, meant only by vested, existing rights; and to say that such could not be taken away without injustice, was a dangerous doctrine. The office held by the learned gentleman himself was a freehold one and vested, and could not be taken away.
§ Mr. Stephen
regretted that his hon. and learned friend (sir S. Romilly) was not 443 present when the words alluded, to were spoken, He (Mr. Stephen) did then maintain, that the offices which the Bill had in contemplation were vested interests, and could not, without injustice, be taken away. Astonishment was then expressed at a lawyer speaking in this manner; and the idea on which the words were caught at was, that vested and patent interests were synonimous.—His learned friend (sir S. Romilly) now agreed with him in the use of the terms.
§ Mr. Marryatt
regretted, that many of the places in the colonies were often given to persons, not for their abilities to discharge the duties of them; if, however, they were made less profitable, they would not be accepted by men of talents. The grounds upon which the Bill proceeded were stated to the House; and one of the grounds was, to increase the white population; for it was well known that it was decreasing; and that, to prevent it, there were local regulations; the object of which was, to render the number of whites upon each estate in some degree proportionate to the negroes. The Bill, he was certain, would contribute to the security and happiness of the colonies. It would have been better if the hon. gentleman (Mr. Creevey) had moved for a return of all the appointments in the colonies, and not confined himself to a few in Jamaica and in the conquered colonies, which probably would be all very soon given up. Most of the places appeared to be given to persons who had served the government in other situations. Only six had been given within the last ten years; and they were given with the implied condition, that those who obtained them were not to reside. It was not against law to dispose of them in this manner. The present Bill he considered highly honourable to the noble lord at the head of the colonial department; and it had his concurrence, as he looked upon it as a measure of much utility.
§ Mr. Whitbread
said, that in the first instance he should take the liberty of paying his personal respects to the learned gentleman (Mr. Stephen) who had so particularly alluded to him, and whom he therefore wished to have immediately followed. The learned gentleman had thought proper to attribute to him (Mr. Whitbread) a capacity for repartee, but he must decline the compliment; and as to sarcasms, he had no talent for them; but even if he had, they could not affect 444 the learned gentleman. Indeed, he professed to disregard them; and justly, for against him they must be ineffective—they must fall from him imbella tela. But as to the phrase, 'vested interests,' it appeared, that, notwithstanding the learned gentleman's ruminations upon the subject during the recess — notwithstanding his overstrained endeavour at definition, to cover his use of that phrase, it was still obviously inapplicable to his argument. The learned gentleman had perhaps used it in a former instance, because he thought he was not addressing an assembly of lawyers—because he calculated upon the influence of an imposing phrase upon comparatively superficial men. His calculation, however proved erroneous; and he was this day proved, by high legal authority, to have made an improper application of a phrase which he ought to have understood. But the highest authority, in his estimation, was Mr. Fox; and that distinguished statesman applied in that House the phrase of 'vested interests' only to patent places, which he compared to freehold rights. It was, however, reserved for the learned gentleman to maintain that vested interests were tantamount to existing interests; that sir Evan Nepean had truly a freehold right, because he held an office which office he had;—that Mr. King, too, had the same right, and for the same reason. The learned gentleman was angry, it appeared, because he had been called, in the course of debate, a "master in Chancery;" but he (Mr. Whitbread) was quite at a loss to conceive the cause of that anger; for, was he not a master in Chancery? and what could now disturb him on that point? It might have been that he was much disturbed before he became a master, by the doubt and difficulty of attaining the office: some might have strongly opposed, although others strongly recommended, his appointment; and the throes and swellings of suspense, which agitate a nymph before she is brought to the altar to consummate her wishes, might possibly have agitated the learned gentleman; but now being actually a master in Chancery, and knowing that no chancellor could turn him out (unless he misbehaved, which was improbable) although a chancellor might have objected to his original appointment, why should he be so angry at the description of his office? Could the Solicitor General, whom he was glad to see in his place, could any public officer 445 consider it a sarcasm to allude to the place which he had the honour of filling? It was said, that it would be severe now to annex a condition of residence to places which were obtained without any such condition annexed. This was not the case with respect to the place held by sir Evan Nepean, it was given on express condition of residence, and yet he never discharged the duties of it in person. The learned gentleman himself (Mr. Stephen) resided in the West Indies for a long time. He hoped he was now purged of all the dross he contracted there; and, like Antœus, he was renovated by touching his mother earth. He very often gave proof of this renovation, but not upon the present occasion. The good intentions of lord Bathurst were spoken of, in annexing the condition of residence to future appointments; but would it not be easy to avoid it? What could be stronger than the condition to reside contained in the appointment of sir Evan Nepean. He was obliged to go out to Jamaica to obtain his leave of absence; and so necessary was it to purge off the dross contracted there, that he came home after remaining only two days, and brought the leave of absence in his pocket with him. Even the form of such leaves of absence was refused to be laid before the House, or else it was unknown. Was, he would ask, such a palpable fraud and abuse of the law to be overlooked? Yet such evasion might go on under the saving clause in this Bill. But a warm climate had not, it seemed, such great terrors for sir Evan Nepean; for, learning the West Indian office, which he obtained in 1809, he in 1812 accepted the office of governor of Bombay, where he now was performing his official duty. Was this, he would appeal to common sense and justice, consistent with law or propriety? Adverting to the observations of his hon. friend (sir James Mackintosh), he remarked that such men as sir Evan Nepean, Mr. King and lord G. Seymour, could not be supposed to violate the law through ignorance. At all the events, such ignorance could not be allowed to excuse them, while the plea of ignorance was not allowed in this country to excuse even the criminality of a child. The person who brought in this Bill said, it was identically the same as that before introduced into the House of Lords; but he did not know, that the whole debate then turned upon the omission of the word 'America' in the Bill, and that it otherwise passed in the 446 identical words in which it was proposed. The Bill passed in 1782; and there was a gross violation of it in 1789, which it is now said is sanctioned by time, and must not be touched. The learned gentleman (Mr. Stephen) talked of the defenders of their country, and of a vested interest in half-pay. Did he not know that officers in the army were removable at the pleasure of the crown; and that, for a vote in that House, a cornet of dragoons was once deprived of his commission. With a view to promote the residence of a respectable white population in the West Indies, which an hon. member (Mr. Marryatt) justly considered so very advantageous, he (Mr. Whitbread) thought the resolutions of his hon. friend were infinitely preferable to the Bill under consideration; because those resolutions would serve to enforce the residence of the principal officers, which was the more necessary, as the deputy offices were notoriously sold to the highest bidders; of course, liable to be held by exceptionable persons. These resolutions would therefore be productive of a most salutary reform; and having mentioned reform, the learned gentleman's use of the word "Jacobinical," which he confessed he now heard with surprise, naturally occurred to his memory. In using it, he must take leave to say, that the learned gentleman (Mr. Stephen) was "a day after the fair;" and felicitous as the learned gentleman was in his diction, he thought he would have been somewhat novel in his expression, and laid aside an old, obsolete word, referring to what was past and gone, never, he hoped and trusted, again to return. He supposed the learned gentleman (Mr. Stephen) was making a speech for the present occasion during the recess, and thinking of the many severe things he would say, and the defence he would make for himself; but he happened to answer a part of a speech from his hon. friend (Mr. Creevey) which that gentleman never made. For his (Mr. Whitbread's) part, he would never sanction that which was a violation of law, and that with the knowledge of those who violated it; and must contend against what he considered as fraudulent and evasive.
§ Mr. Marryatt explained.
The Hon. W. Bathurst
observed, that some members opposed a clause in the Bill as tending to sanction that which was already illegal. A Bill had passed through the House some time ago, which contained 447 a similar clause; and he would therefore say, that it was already sanctioned by passing that Bill. Nay, the hon. gentleman, by voting for that Bill, had already, as he himself expressed it, "sanctified sins of 32 years standing."
§ Mr. Goulburn explained.
§ Sir Frederick Flood
said, he should certainty vote for the Bill, were it not on the ground that it would be cruel and unjust to disturb the possessions of those persons to whom the places had been granted, and in which they ought to be protected.
§ Mr. Creevey's Amendment was negatived without a division.
§ The House then went into a committee, Mr. Brogden in the chair.
§ On the clause being read, relative to the power of granting leave of absence to gentlemen connected with offices in the colonies,
§ Mr. A. Browne
opposed it. He said, that, in his opinion, the right to grant leave of absence should be vested in the councils and governors abroad, and not in the government at home. In two of the cases of absence which had been mentioned, the parties who ostensibly granted it deserved to be impeached, though he believed the fault did not really attach to them; for if the House could take a peep behind the curtain, he believed it would be found that the governors had been obliged, by the interference of the authority of the government in England, to grant leave of absence. Persons, he knew, had been pointed out by government, as fit to receive leave of absence; and if this were done in one case (ab uno disce omnes,), why might they not infer that a similar course had been pursued in all? If the House really wished to preserve the spirit of the Act of 1782, which had been shamefully evaded, there ought to be a specific time mentioned, beyond which the term of absence should not be permitted to extend. For that purpose he begged leave to move, "That the leave of absence should not be for more than 12 months, nor should it be renewed for more than the like period; and that any person remaining absent for more than two years, should forfeit the office which he held."
§ Mr. Barham
objected to the shortness of the period stated by the hon. gentleman. He thought, where an individual had served the public faithfully, for 20 years, in the colonies, and wished to come home, either to settle his affairs, or to educate his children, he ought not to be 448 restricted to a twelve months; a great part of which would be consumed in the voyage home and back.
§ Mr. Goulburn
also considered the time proposed by the hon. gentleman as too confined. In illustration of his statement, he observed, that the voyage to New South Wales, on an average, occupied ten months.
§ Mr. Browne then withdrew his motion.
§ On the last clause being read, by which the provisions of the Bill were declared not to extend to those who at present held situations in the colonies; Mr. A. Browne moved, "That the clause be rejected." And after a short conversation between the Chancellor of the Exchequer, Mr. Creevey, Mr. Barham, and Mr. Marrryatt, the committee divided; when there appeared: For the clause 32; Against it 9; Majority 23.
§ The House then resumed, and the report was ordered to be received to-morrow.