Other formats

    TEI XML file   ePub eBook file  

Connect

    mail icontwitter iconBlogspot iconrss icon

A selection from the writings and speeches of John Robert Godley

Lecture on the New Zealand Constitution Act

page 123

Lecture on the New Zealand Constitution Act.

The following lecture on the provisions of the Constitution Act was delivered to the Colonists' Society at Lyttelton on the 1st December, 1852:—

The most convenient introduction to a lecture on the Constitutional Law lately enacted for New Zealand will be, I think, a very brief and general summary of the Constitution it is intended to displace—that is, under which we now live.

That Constitution is founded on an Act of Parliament, passed in 1840, by which her Majesty was authorized to erect New Zealand into an independent colony, and to constitute a form of Government for it by Letters Patent. In pursuance of this Act, Letters Patent were issued, commonly called the New Zealand Charter of 1840, by which New Zealand was made a separate colony; the executive power was entrusted to a Governor and Executive Council, and the legislative power to a Governor and Legislative Council. The Executive Council was to consist of the Colonial Secretary, Colonial Treasurer, and Attorney-General; the Legislative Council to consist of the same officers, with the addition of the three Justices of the Peace, whose names should be standing first in order in the commission of the peace, such commission being liable to be revoked and renewed at the pleasure of the Governor.

Elaborate instructions accompanied the Charter, limiting in a great many particulars the Governor's discretion in the exercise of the legislative powers vested in him by the Charter, and limiting still further the powers of the Legislative Council, as contra-distinguished from the Governor. The instructions provided that no Ordinance should be enacted unless previously proposed by the Governor, and they enumerated a long catalogue of forbidden subjects on which the Governor was prohibited from proposing or assenting to page 124legislation. The instructions further provided that all Ordinances should be sent home for allowance or disallowance, and unless in some specially excepted cases, that they should not take effect until her Majesty's pleasure should he known upon them.

It seems at first sight difficult to imagine why so elaborate and complicated a method for giving effect to the wishes of the Colonial Minister for the time being was devised, and what use to any body there could be in a Council selected entirely by the Governor, discussing only measures proposed by the Governor, and incapable of bringing any laws into operation until sent home to be approved or disapproved there. The only shadow or pretence of power which it had was negative—the power, that is, of refusing to pass the Governor's laws, and I leave you to imagine how much chance there was of that ever happening, when three out of the seven members were the Governor's own paid servants, and the other three nominated by him, and holding their seats at his pleasure, while he himself was to possess a casting vote in addition to his original one.

I can understand, nay, I can appreciate the advantages of a pure monarchy. For dependencies inhabited (as our penal colonies were at first) only by convicts and soldiers, or (as our Indian empire still is) by people incapable of working representative institutions, a local despotism is probably the best form of Government. Indeed, I have always considered the particular form of a Colonial Government as (although of course very important) still secondary in importance when compared with its localization. I am tempted to go the length of saying that the best possible men, governing a distant colony from England, would do more unwise and mischievous things than the worst possible men, living in the colony, and supported by no influence external to the colony. It is not then at present the power of the Governor which I am animadverting upon as pernicious. It is the absurd and anomalous mechanism by which, on the one hand, his com-page 125plete subordination to the English Secretary of State is provided for; and, on the other hand, his sense of responsibility is blunted, by permitting him to use the screen of a sham Legislature, nominally colonial and independent, but in fact incapable of offering the slightest barrier to his will.

The Act and Charter above referred to were repealed and abrogated in 1846, but revived in 1848, with an additional provision for increasing the number of Nominee Councillors, and for enabling the Governor and Council to constitute Provincial Councils. That Act and Charter, therefore, are the instrument of Government under which you now live, for it is not worth while to describe in detail the provisions of an Ordinance establishing Provincial Councils, which Sir George Grey passed in 1848; the Constitution framed by it possessed no vitality, and practically expired after one feeble session. Still less need I discuss the second and still more futile measure carried by the Governor last year with a similar object. This latter measure, as you all know, never came into operation at all, and has just been comfortably buried out of our sight.

What I have said may suffice to introduce a consideration of the Constitutional Law which has just been enacted for New Zealand.

It is not my intention to take up your time with an enumeration and a detailed criticism of every clause and every provision in the Constitution Act. I will assume that you have made yourselves acquainted with the substance of it already, and that what you wish to hear is rather a comment upon its general spirit, illustrated by occasional reference to particular clauses—an exposition, if I may use the phrase, of the philosophy of the measure, than any attempt at a complete and exhaustive analysis. With this view of my subject, I propose to divide my observations on it into three heads, viz., those which apply to—1, the relations which will subsist, under this Constitution, between the colony and the mother country; 2, the relations between the Central and page 126the Provincial Governments; and, 3, the form and functions of the various departments of Government in the colony, together with such remarks as I make think necessary to make on the minor features of the Act.

Notwithstanding the concessions made in this Act to the improved state of public opinion in reference to colonial affairs, notwithstanding the practical advance in a right direction which it exhibits, there is still much in it of what may be called the old leaven. The concessions seem to have been rather extorted one by one from necessity, and by importunity, than dictated by an enlarged comprehension of true doctrine. I see no consistency in the construction of the scheme, no leading principle upon which some things are given, and some withheld. If the modern theory of Colonial Government, that, namely, which has been acted upon for the last eighty years, be right, we have got too much power; on the other hand, if the old theory, upon which the colonies of Rhode Island and Maryland were founded, be right, we ought to have a great deal more. I will explain what I mean: the essence of the former or modern theory is an idea that the Crown (which is the formula for expressing the Imperial authority whatever that may be) has in each colony an interest, not only distinct from, but opposed to the interest of the inhabitants of the colony. This notion pervades, colours, and shapes the whole modern policy of Great Britain towards her colonies. Those who hold it consider, of course, that their first duty, as loyal servants of the Crown, is to take care that whatever may be done for, or granted to colonists, shall be consistent with the retention, in its plenitude, of the "authority of the Crown." This is the phrase that occurs everywhere: in despatches, instructions, debates, charters, and laws. If we attempt to show that such and such a provision—say the power of disallowance of colonial laws within two years—is a practical grievance, we are met, not by an argument to show that there are practical advantages in the provision, but by the same axiomatic phrase—"the power of the Crown page 127must not be diminislied." Sometimes, no doubt, it may be incidentally maintained by some reasoner more than usually bold, that it is for the advantage of the colonists alone, or chiefly, that the power of over-ruling their wishes is reserved to the Crown; a few will also contend bravely, and without going into detailed proof, that England reaps material advantages from interference with the local affairs of colonies; but these are only the exceptions; the larger number of the advocates of Downing-street seem to rest their case upon the à priori notion of the prerogative. "They will not surrender the prerogatives of the Crown." Even in the very latest discussion of colonial affairs of which we have intelligence, Lord Grey, according to the newspaper report, refuses to consent to the demands of the Legislature of New South Wales for local self-government, because they are in his opinion "irreconcileable with monarchial institutions;" and Lord Derby expresses his adhesion to that sentiment by an emphatic cheer. But I need not multiply examples; they will easily occur to every one of you.

The practical operation of this doctrine is the establishment in all modern colonies of a system which is the converse of what we call local self-government. A system, of which the main principle is that an unlimited power of interference with and control over every matter and every person connected with the making of colonial laws, and administering colonial government, should be reserved to the Secretary of State for the Colonies. Of course, this unlimited power will be exercised more or less frequently and offensively by different Ministers; but the Downing-street theory requires that they should all possess it, and be restricted in its exercise solely by their own prudence and sense of right. The system, as hitherto worked, is consistent and complete. A Governor is appointed by the Colonial Minister in the name of the Crown, and holds his office at that Minister's pleasure. It is expressly provided that he shall be subject to instructions from the Minister. His tenure of office is, speaking generally, not page 128long enough for him to acquire any permanent or deep-rooted interest in the country which he governs. It is to him what a military station is to the colonel of a marching regiment. When the Governor of New Zealand gets the route for the Mauritius or the Cape, New Zealand is to him what Gibraltar or Malta were to the battalion that was quartered there last year. His hopes and fears hang not upon you at all—not upon your likings or dislikings, your weal or woe—but upon those whom the system assumes to be "the opposite party," namely, the Minister of the Crown. Through the medium of this officer, bound as he is by duty and interest to implicit obedience, the Colonial Minister has his foot, as I may say, upon the colonies: he can do exactly as he likes with them. The Governor, subject to instructions, appoints to all executive offices—is, in fact, the sole executive authority. He generally nominates either the whole or part of the Legislature, and exercises, more or less, direct control over their initiative legislation. He always exercises an unlimited veto on all their bills. But the indirect control thus reserved to the Colonial Minister over local legislation is not enough. Lest the Governor should inadvertently assent to a Bill which the Minister might consider objectionable, an unlimited power of disallowance by the Minister himself, always in the name of the Crown, is invariably provided; moreover, as the Colonial Legislatures have nominally the power of voting and appropriating supplies, it is thought necessary, in order that the Imperial officers should be completely independent, to provide what are called Civil Lists, or Schedules, that is, to reserve from the control of the Legislatures a certain, generally a very large proportion, of the colonial revenues, and to pay out of it the salaries of the Governor himself, and as many of the public servants as he may think fit. Thus England no longer taxes the Colonies; she only allows them to tax themselves, and then "appropriates" the proceeds. But besides all these legal powers, the Governor has another power which I will not call illegal, but which is page 129indefinitely capable of being illegally used—I mean the power of ordering the Treasurer to issue public money, not necessarily according to the law by which they are appropriated, but as he pleases. This power was admittedly used in a manner directly contrary to law in 1850-1, and I presume it will be again used illegally after the present year, as the Legislature has, I believe, only appropriated the revenue up to that time. Now I can see no practical way of controlling this power; the Treasurer is responsible to the Governor, but the Governor is practically not responsible at all. If he can make sure of being "backed" at home, I can see nothing to prevent him, upon any case of asserted necessity, from appropriating as he pleases, by means of this power, the whole revenue of the colony.

On the whole, it is evident that theoretically, as well as practically, the authority of the Secretary of State (acting in the name of the Crown) over modern British colonies is uncontrolled and complete. Against his will, if he chooses to enforce it, the colonists can do absolutely nothing—cannot make a railroad, pass a vagrant act, nor dismiss a constable. It is vain to say that he does not, and will not, interfere vexatiously and oppressively; the most abject servitude is always mitigated, more or less, by the prudence or humanity or indolence of the masters. If he please he can do it universally; as a matter of fact, he does it often enough to constitute an intolerable grievance. But it is not after all his personal interference that constitutes the worst part of the system: the worst part is, that his authority, supreme and paramount, gives to his legal delegate powers of practical despotism, such as no merely local despot could safely exercise for any length of time. Upon a colonial Governor, speaking generally, the colonists have no hold at all. Their public opinion is nothing to him; their physical force he laughs at; his eyes are always turned to England. If he can make things smooth and pleasant there, he can afford to treat with supreme contempt the remonstrances of the community page 130which he rules. Colonial Governors constitute perhaps the only class of rulers in the world who have none of the more ordinary, or if you please vulgar motives for consulting the welfare of their subjects: such motives, I mean, as hope, fear, patriotism, or personal sympathy. Of course you will now and then find men who are independent of and superior to ordinary motives, and who will do their duty solely because it is their duty. But most Governors are ordinary men, and require the stimulus of ordinary motives. The chances are, therefore, that the system which I have described will produce, if only on this account, as bad government as it is possible to conceive.

This exposition of the principle which runs through and supports the central system of Colonial Government is not irrelevant. I want to show you how this principle works in an inconsistent, that is, a partial and diluted manner throughout the whole of our new Constitution. The framers of it did not recognize, perhaps did not comprehend the radical viciousness of the Constitution which they found existing; they have dealt, therefore, only with what appeared to them its practical grievances.

It is impossible not to see that the same paramount and controlling power which was reserved to the Crown by the former Constitution is also reserved by this. The Governor, subject as usual to instructions from home, appoints to executive offices, possesses the power of unlimited veto, authorizes the issue of moneys, has his civil list reserved—in short, is both theoretically and practically independent of the colonists, while both theoretically and practically he exercises an immense power in the management of their affairs. Besides this, the power of disallowance by the Crown at its pleasure, that is, at the pleasure of the Minister, is preserved.

It is true that there are two checks upon this power of the Minister and of his officer; one is the power granted within certain limits to the representatives of the people over the page 131public purse; the other is perhaps hardly less important, it is the power granted to the people of authoritatively expressing their opinions and wishes through their chosen representatives. These are important and valuable checks; still it must not be forgotten that almost all their efficacy depends either on the character of the Colonial Minister, or (more frequently) on the state of public opinion at home. In fact, you all feel that your best safeguard against future oppression will still be the watchful energy of those friends to whom you owe the present measure. The letter of your law will not protect you. Your physical force is nugatory. The most you can say is that you have in your hands the means of impeding the action of a hostile Government, and of unequivocally speaking your sentiments with respect to it. But this is not nearly enough. If you impede the action of Government, you will yourselves, in the first instance at least, suffer a great deal more than your rulers. By speaking your sentiments, you will exercise only an influence of which the extent must depend on circumstances over which you have no control. This state of things must not continue. Your liberties must not be left dependent on the varying chances of personal character or popular opinion. You must claim a charter for your rights; a regular, legal, permanent security, such as no one can infringe upon without convicting himself in the face of the world of illegality as well as oppression, violence as well as tyranny. For this purpose your representatives ought in my opinion to demand that a line may be drawn between matters of imperial and matters of local concernment, and that the uncontrolled and exclusive management of the latter may be left to yourselves.

It will be their business to maintain and to prove that the fundamental principle of the modern theory of Colonial Government is erroneous, inasmuch as the Crown has and can have no interest distinct from, still less opposed to that of the people of the colony, with but one exception: that is except in connection with their relations towards foreign powers. page 132Interested of course the Queen and Parliament of England must be in everything that affects the general prosperity, and therefore the good local government of the colonies; but the point to insist upon is that they are less directly, less deeply interested than the colonists themselves, and that they are from physical circumstances, generally speaking, incapable of undertaking colonial affairs and dealing with them to advantage. Therefore the interest, such as it is, of England in the local government of her colonies is best consulted by leaving it altogether to those who are more interested in and better acquainted with the subject. It is really childish to go on repeating the formular phrase "monarchical institutions," and making the Queen as it were the scapegoat of her Ministers' sins and follies. That colonists should make laws for regulating their own affairs, and choose officers for administering them, without the assent or interference of the Crown, involves no more an undue encroachment on the prerogative than that the corporation of London, or the University of Oxford, or the East India Company should do so. If we look to precedents of constitutional law, we find that in the reigns of Charles I. and Charles II., when doctrines of prerogative were at the highest, rights such as we now claim were freely granted to the Worth American colonies. Maryland, Connecticut, and Rhode Island possessed complete legislative and executive power by charter, subject only to the vague and inoperative condition that they should make no law "repugnant to the laws of England;" and it is certainly strange to hear Lord Grey and Lord Derby in 1852 denouncing as anti-monarchical, doctrines which Wentworth and Hyde did not hesitate to apply in 1634 and 1662. The charter granted by Charles to Connecticut ordained that the Assembly should consist of a governor, deputy governor, twelve assistants, and two deputies from every town, to be chosen by the freemen. The Assembly had authority to appoint judicatories, elect officers, make freemen, establish laws, "not repugnant," &c., "according to the course of other page 133corporations within this our kingdom," to assemble the inhabitants in martial array and to exercise martial law. In short, the powers of local self-government thus granted were complete and unlimited. The charter granted by the same Sovereign to Rhode Island was almost identical in its terms. It still forms the constitutional law of the State. The charter of Maryland gave equally full powers to the people, subject to the rights of the proprietary and his heirs, the proprietary standing in the position of an hereditary Governor. Such was the view taken by the Stuart kings of the respective rights of colonies and of the Crown.

If, on the other hand, discarding empty names, we look to the reality of things, what becomes of the flimsy talk about the supremacy of the Crown? We all know—those know best in whose mouth the phrase is most frequently found— that the Crown means the Colonial Minister of the day, uncontrolled and unchecked, except in some extreme and rare cases, by the influence of public opinion, acting through the House of Commons. The question is not between the Crown and the people—not at all. It is between the Imperial Government and the Local Government; between the mother country and the colony. Until the Crown's power of vetoing colonial Acts and appointing to colonial offices be given up, the colonies cannot be said to possess rights of local self-government. Politically speaking, they are either practically enslaved, or at best only free by sufferance.

The next point connected with the relations between the mother country and the colony to which I will draw your attention, is the reserved schedule or civil list. By the Act, £16,000 a-year is reserved from the power of the Assembly, and appropriated in a manner partly fixed by the Act itself, and partly to be fixed by the Governor, under instructions from home. This civil list is not a large one it is true; it is a much smaller one than colonies are generally saddled with, but it is nevertheless an important grievance, both theoretically as a badge of political servitude, and practically as page 134weakening almost the only instrument of control over the Government which we are to possess. It is occasionally maintained that because in England a civil list, that is, a number of salaries attached to certain public offices, is voted by Parliament at the commencement of every reign, and remains unchanged till the end of it, therefore there ought to be an aaalagous fixed appropriation in the colonies. Those who talk thus forget, firstly, that the English civil list is voted by the representatives of the people of England, not by those of another people; and, secondly, that the holders of offices comprised in it are appointed and dismissed practically by the advice of Ministers responsible to the people of England. No comparison, therefore, can possibly be drawn between that case and the one which we are considering. I am, as much as any man, in favour of making public offices as far as possible independent of an annual vote of a Colonial Assembly; but I entirely repudiate the doctrine that the British Parliament should fix their salaries, and until the people of New Zealand have some other more direct and legitimate mode of making their public servants responsible, I shall object to any tampering with the means of control which is afforded by a command of the public purse. I cannot see the slightest real difference between the grievance of an imposed civil list and the grievance for the removal of which the Americans rebelled. It is just the same under another name—taxation without representation.

The last point connected with this part of my subject which I shall mention refers to the position and functions of the Governor. There are three distinct views which may be taken of the Governor's office. It is necessary that we should make up our minds which to prefer.

One view is that which has been of late years universally applied throughout the British Empire; according to it the Governor appointed by and responsible to the Imperial Government, is altogether independent of the colonists, yet always takes an important part in administering their affairs, page 135and generally governs them as absolute ruler. Another view is that which was recognized in the charters of Pennsylvania, Maryland, Connecticut, Rhode Island, and several other of the old colonies. It contemplated the Governor primarily, if not exclusively, in the light of a local officer. He was not, so far as I can make out, the organ or the representative of the Crown at all, held no commission from it, and was not subject to its instructions. In some cases he was chosen by the colonists; in others (as in the proprietary Governments), his office was hereditary. In all the cases to which I am alluding, his functions were essentially municipal, and his position completely independent of the mother country. The third view is one which has never yet been brought into complete or consistent operation, but to which there has been for some years a tendency, more or less marked, to approximate in the more powerful colonies of Great Britain. According to this view the Governor would be primarily an Imperial officer, holding his commission from the Crown, subject to its instructions, and representing its interests. With respect to the colonists, he would stand somewhat in the position now held by the Sovereign of Great Britain towards his subjects; that is, he would administer their affairs entirely through the instrumentality of advisers responsible to the representatives of the people, and possessing their confidence. Among these different theories of the Colonial Governor's office it will be necessary for you to choose when you demand, as of course you will demand, a reform of your Constitution.

Of the first, which contemplates the Governor as an Imperial officer practically governing the colonists, it is not necessary that I should speak further, most of the observations which I have already addressed to you, being directed to show that it is irremediably pernicious and bad. The second, which contemplates the Governor as a colonial officer only, has the advantage of having been carried into eminently successful operation, both in the old colonies to which I have page 136referred in describing it, and in the United States of America, where the State Governors are chosen by the people of the States, and have no special relation, still less are subordinate or responsible to the President of the Central Government of the Union. It has, morever, the advantages of simplicity, intelligibility, and if I may so speak, reality; names correspond to things under it; the Governor actually governs; he has no divided duties, no doubtful responsibility; he is chosen by the people, paid by the people, responsible to the people. Where it prevails, the form of the local Government is republican, like that of all our chartered corporations. In the eyes of foreign nations the colony or state has no independent existence; it is merged in the Imperial unity, by allegiance, by citizenship, by offensive and defensive alliance; but with its internal affairs there is neither theoretical nor practical interference. In each colony so constituted and organized there might, perhaps, reside a representative of the Imperial power, who might be called Royal Commissioner, Lieutenant, or whatever else you please; but his functions would be absolutely restricted to those matters which the constitutional law would, on the hypothesis, have excluded from the jurisdiction of the Local Government as matters of Imperial concernment; with merely local affairs he would have no more to do than if he lived in a foreign country. To a plan embodying something like such a complete division of powers as this I am myself inclined as a theorist. I think on the whole it would consist best with the circumstances and the feelings of British colonists. But I doubt whether now, or for some time to come, we can hope to see public opinion in England sufficiently advanced to assent to such a plan. It is strange, but true, that though it would have seemed natural and proper in the seventeenth century under the Stuarts, it would startle people very much now under what is in fact a Parliamentary Government. I hardly know whether even in the colonies the balance of the best and most intelligent opinion would be in its favour. I am disposed to page 137think, therefore, that as practical men, striving for what we can get, it will be more desirable that we should endeavour to obtain the realization of the last of the views enumerated above—that, namely, of Government by responsible Ministers.

It is superfluous to remind you that the Government of England is administered upon the principle of the responsibility of the Ministers of the Crown to the representatives of the people. The Sovereign, or Chief Governor, reigns by hereditary right, and is therefore independent and irresponsible; but the Ministers, through whom he is obliged to act, are not only responsible de jure, but are also de facto dependent on Parliament for the means of carrying on the Government. Indirectly, therefore, the people of England exercise a complete control over the Executive, or at least a control sufficient for all practical purposes, and excluding the possibility of direct collision. This system, which is not the result of deliberate contrivance, but which has grown as it were imperceptibly out of the conflicts and struggles of British political parties, has been to a certain extent adopted in the North American colonies which still own allegiance to Great Britain; in Canada, in Nova Scotia, and I believe (though I am not sure) in New Brunswick and Newfoundland. In these colonies the executive officers are chosen by the Governor, but they are chosen from among men who possess the confidence of the Legislative Assembly, and from those only. A decisive defeat in the House on what is considered a question of confidence is fatal to the existence of the defeated Ministry, and results in the elevation of their victorious opponents. Now this system, which works very well in England, presents undoubtedly many difficulties when we attempt to apply it to her dependencies. In the first place, it is a question whether Colonial Governors, who are, be it remembered, not only Governors, but also responsible and subordinate officers of the Imperial Government, can be trusted to carry on the administration of the colony perma-page 138nently upon a system which is not fixed, as in England, by unalterable necessity. If they or the Colonial Minister, whose delegates and servants they are, choose to exercise their legal powers in an "unconstitutional" manner, it might be very difficult for us to prevent them. In the case of a powerful country like Canada, within ten days' sail of England, and bordering upon the United States, there may be a virtual security that responsible Government being once established will not be interfered with; but I confess I should not feel the same confidence with respect to the position of a feeble and distant colony like New Zealand nominally administered upon the same law. Observe that the Governor, as I said before, is upon this view something else besides Governor. As an officer and representative of the Crown, it would be absurd to be dependent upon you, either with respect to his functions or his salary. He must therefore either draw his pay from England, or have it imposed by England as a charge on the colonial revenue; so that in the exercise of the plenary executive power bestowed on him by his commission, he will not be at all fettered by personal considerations. And of course it must be so unless the whole system were altered, and he ceased to be the representative of the Imperial authority. If the reserved schedule were withdrawn, and you acquired thereby the right of stopping the supplies, it would be necessary for the Crown to secure the position of its officer in some other way. But being thus secure, with such an amount of theoretical authority, he could hardly fail, I think, to exercise a formidable influence over your local administration. I do not think you could expect him to act permanently and habitually the part to which use, tradition, and necessity have reconciled the Sovereigns of England; in a word, to reign and not to govern. Besides, there is this practical difficulty in carrying the doctrine of Government by responsible Ministers after the English fashion into effect here: that it is very doubtful whether you will find in a small and poor community like this, a sufficient page 139number of men qualified to fill the higher offices of Government, who could afford to hold them on such a precarious tenure as that of depending on the will of a majority in the General Assembly; or, on the other hand, men at the head of every political party which might obtain a majority in the Assembly qualified to administer the various departments of the Executive Government. For all these reasons, as I said before, I cannot help thinking it would be found more convenient, that is, more conducive to good administration, that the Governor himself should be chosen by the people for a fixed term, and responsible to them, and that his Ministers should be appointed by him, and responsible to him only. There would thus be a certain continuity and permanence in the administration of public affairs, while the responsibility of the executive head would insure due harmony between the Government and the people. But having fully stated my opinion, I repeat that I think we are more likely to get responsible Ministers than a responsible Governor; and I will only add that either plan would, in my opinion, sufficiently conduce to good practical Government.

I will next state what are, in my view, the questions which it would be right and proper to reserve from colonial jurisdiction, and place under the exclusive cognizance of the Imperial Government; and in doing so I will use the words of one of a series of resolutions moved by Mr. Adderley in the British House of Commons, as an amendment on the Australian Constitutional Bill:—"The only subjects which concern the interests and honour of the Empire with relation to these distant dependencies of her Majesty are—1st, the allegiance of the colonies to her Majesty's Crown; 2nd, the naturalization of aliens; 3rd, whatever relates to treaties between the Crown and any foreign power; 4th, all political intercourse and communications between any of the colonies and any officer of a foreign power; 5th, whatever relates to the employment, command, and discipline of her Majesty's troops and ships within the colonies, and whatever relates to page 140the defence of the colonies against foreign aggression, including the command of the colonial militia and marine in time of war; and, 6th, whatever relates to the crime of high treason." Speaking more generally, it may he said that matters which concern allegiance to the British Crown, and relations with foreign powers, are those which must be reserved from colonial jurisdiction, for the purpose of preserving the integrity of the British Empire. For these restrictions the honours and advantages of British citizenship, and the protection of Great Britain against foreign enemies, will be an ample compensation; nor do I think they would be felt by a single colonist as practical grievances. Before the time arrives when these colonies, conscious of power, shall demand the privilege of standing on equal terms with the mother country in the family of nations, I trust that increased facility of intercourse may render it practical to establish an Imperial Congress for the British Empire, in which all its members may be fairly represented, and which may administer the affairs which are common to all. It is necessary for me to remark, that I see no reason why intercourse with uncivilized native powers should be forbidden to Colonial Governments. It never was so in North America, and I do not see that the relations of our early colonies with natives were at all less satisfactory than those of our modern dependencies, where everything has been managed by Great Britain. Certainly the duties and responsibilities which the old system imposed on the colonists in this respect, seems to have formed a national character replete with self-reliance, energy, and political ability. The American Revolution was made by soldiers and statesmen: if the Australians are ever summoned to a similar struggle, it will find them, if they don't take care, mere wool growers and gold diggers.

The only point connected with the relations between the colony and the mother country which it remains for me to discuss is that which regards the judiciary. It is a question whether there ought to be an appeal from the Colonial Courts page 141to the Queen in Council, and it is a question how these provisions of the constitutional law, which concern both the colony and the mother country, are to be interpreted and enforced. As regards the first question, I hold that, except in Admiralty cases, there ought to be no such appeal. With every possible respect for the great lawyers who form the judicial committee of the Privy Council, I cannot but think that the advantage of the superior ability and learning which they would bring to bear on the cases of colonial appeal, is counterbalanced by their want of conversance with local laws and customs, and by the extreme difficulty of getting the facts of those cases clearly brought before them; while the right of appeal, if brought practically into operation, would entail an amount of inconvenience, delay, and expense which can hardly be over estimated. If the colonists will determine to avoid the fatal economy which would tend to cripple the efficiency of the bench; if they will make it worth the while of high-principled and able men to fill their judicial offices, I have no fear but that the public peace and the rights of individuals may be amply secured and maintained, without there being any necessity to keep an appeal to a tribunal 16,000 miles off, hanging over the heads of the unfortunate suitors. As regards questions which might arise between the colony and the mother country upon the subject matter and the boundaries of their respective jurisdiction, these I should be content to refer to the Judicial Committee as at present constituted, or to the Judges in Exchequer Chamber. There is, however, as yet no necessity for discussing this point as a practical question; for there is now no distinct and independent jurisdiction in the Colonial Government, and the Imperial authority being paramount in all questions, local or otherwise, the extent and manner of its interference depends altogether on the pleasure of the Colonial Minister. But if that most important desideratum, the separation of jurisdictions, could be obtained, a tribunal analogous to the Supreme Court of the United States, which is the final interpreter of page 142the Constitution, would immediately become necessary for the purpose of enforcing and enacting that separation. Now, as our only object would be to secure that a tribunal for this purpose should be independent and impartial, and as there is every reasonable guarantee for the independence and impartiality of the English Judges, I do not see that any better mode of reference could be arrived at or required than either of those which I have suggested. The cases in which their authority would be invoked, cases, namely, of disputed jurisdiction between the Imperial and Local Governments, would in all probability be rare. But it is most likely that, if really free institutions were given to all the colonies, and the arbitrary power of the Colonial Office were removed, the same or some similar tribunal must be constituted, for the purpose of deciding disputed questions between different colonies.

I shall now pass to the second division of my subject—viz., the relation between the General Government of New Zealand and the Provincial Governments.

There are two methods of carrying into effect the principles of what may be called a complex or aggregate system of government, by which I mean a system of government that contemplates the same people as living under two or more concurrent jurisdictions, and provides two or more sets of political institutions for them—viz., central institutions for managing that portion of affairs which may be considered to affect the whole people directly; and separate institutions for managing that portion which has only a limited and local interest. By the first method the central and the municipal governments are constituted in the relation of freedom in a co and sub-ordination. The Central Government, possessing original and supreme power, delegates certain of its functions for purposes of convenience to the muncipality, retaining, however, in its own hands an unlimited and discretionary control over the acts of its delegate. Such is the relation which exists in England between Parliament and the municipal corporations, Universities, chartered companies, &c., page 143which exercise local jurisdictions in various parts of the Queen's dominions. No one doubts the competency of Parliament to restrict, modify, or annihilate at its pleasure all the powers and immunities of such bodies; nor is it, I think, at all admissible that the position of British colonies is different in kind from that of other corporations holding delegated powers. I know that it was so argued on behalf of the American colonies at the time of the revolution, and especially an attempt was made to draw a distinction between powers of legislation and powers of taxation; but I can find nothing in the reasoning used by the Americans which appears to me to deserve serious consideration. I most fully agree with Mr. Burke, where he says, "The Parliament of Great Britain sits at the head of her empire in two capacities: one as the local legislature, providing for all things at home and immediately; the other is what I call her imperial capacity, in which she superintends and controls all the several inferior legislatures and guides and controls them all without annihilating any. But in order to enable Parliament to answer the ends of provident and beneficent superintendence, its powers must be boundless." I need not say that I agree with him as fully when he says that this power, theoretically boundless, should be most rarely, sparely, and discriminately used; that noninterference should be the rule, interference the exception; that, "if we intemperately, unwisely, fatally, unsophisticate and poison the very source of government, by urging subtle deductions and consequences odious to those we govern, from the illimitable nature of supreme sovereignty, we shall teach them by these means to draw our sovereignty itself into question. If that sovereignty and their freedom cannot be reconciled, they will cast our sovereignty in our face, for nobody will be argued into slavery." Would that the mighty statesman's words, of which he lived to see the melancholy verification, had been graven on the hearts of those who since that time have swayed the destinies of our colonial empire!

page 144

But this is a digression. I have said that the relation of British colonies to Parliament brings them into the first category of what I have called aggregate systems of government. The second category comprises those systems of government which are formed on the principle of federation. In these it is not a supreme Central Government that delegates certain limited functions to Local Governments, but a number of independent and sovereign States agree for their mutual benefit to combine, and to delegate a certain portion of their sovereignty to a Central Government. Of course it follows from this process that instead of, as in the former case, the Central Government remaining supreme and permanent in all things over the Local Governments, the latter retain in full integrity all the powers which they have not expressly delegated, and in respect of these powers are as completely sovereign and independent as they were before the union. Such were the principles on which in ancient times the Amphictyonic and Achean, and in modern times the German and Dutch confederacies were founded. Such, too, is the relation which subsists between the separate States of the American Union and the Federal Government, and between the Cantons of Switzerland and the Government of the Helvetic League. In framing the Constitution of this colony, to which physical circumstances as well as moral considerations, made the application of one or other of these systems desirable, it lay with Parliament to determine which of the two they would give it. Were they to treat the Central Government as though it had been the original constituent authority, and to give it those paramount prevailing and controlling powers over the whole colony of New Zealand which Parliament itself possesses over the whole British Empire? Or were they to treat the provinces as integral independent units, and starting as it were from that idea, to make them give up only just so much governmental authority to the Central Government as might be considered necessary for the general good, retaining all powers not so expressly delegated?

page 145

I need not tell you that the former was the plan which the Minister proposed and Parliament adopted. Your Constitution provides that the Central Legislature of New Zealand shall have an unlimited power of making laws for New Zealand, so far, that is, as is consistent with its subordination to the mother country. There are certain subjects enumerated which the Provincial Legislatures are not to touch, with which the Central Legislature therefore alone can deal; but there is no corresponding restriction on the powers of the Central Government: on the contrary, it is enacted "that the laws made by the General Assembly shall control and supersede all laws in anywise repugnant thereto, which may have been made prior thereto by any Provincial Council, and any law made by any Provincial Council shall, so far as the same is repugnant to or inconsistent with any Act passed by the General Assembly, be null and void." Carrying out the same view, the Act makes all the legislation of the Provincial Councils to be subject to the Governor's disallowance. It enables the Governor to disallow also the election of the Superintendent, and requires that the Superintendent shall obey the Governor's instructions implicitly with regard to the exercise of all his functions. Indeed the Superintendent has no power conferred on him by the Act, except the nominal power which it hardly required the authority of Parliament to confer, of transmitting drafts of laws for the consideration of the Provincial Council, and of giving and withholding assent to Bills, in accordance with instructions from the Governor. I will consider this part of my subject in relation first to the legislative, and next to the executive powers of the Central and the Provincial authorities respectively. Upon the first question, whether the Provincial Legislature should or should not have been made by the Constitutional Act independent of the Central Legislature, I do not feel so strongly as most of those with whom I generally agree. I attach, too, more importance than I think they do to the inconvenience and evils of having these islands cut up into six or eight page 146petty states, with different codes of law, and perhaps different systems of government, and therefore it is with some hesitation that I have been led to advocate the complete municipal independence of the provinces, especially as there is danger lest such unreserved independence tend to perpetuate the little jealousies and rivalries which the various circumstances of their respective origins have produced. On every account I look anxiously forward to the time when their complete amalgamation will he possible. I have no wish to see a hexarchy prolonged in a country the whole of which is of perfectly manageable dimensions, not larger than Great Britain and Ireland, or than many of the American States. The normal state of New Zealand ought, in my opinion, as regards this point, to be that of England, not of America. I see nothing which ought to prevent at any very distant time the Parliament of New Zealand legislating for all the islands; just as the Parliament of Great Britain legislates for Caithness and Cork, and that of New York for Long Island and Buffalo. The question between federalism and unitarianism (if I may so call it) is in my mind entirely one of geography, where there are no essential differences of race, or other social peculiarities which forbid amalgamation. Unity is best where you can have it, and the tendency of things is towards making political unity more and more possible every year among peoples hitherto divided. Electricity and steam are the most powerful of political amalgamators; it is easier now to govern the Highlands and Connaught from the Home Secretary's Office in Downing-street, than it formerly was to govern Devonshire and Northumberland, and I hope many of you will live to see the Bluff and the Bay of Islands brought as near to each other as John O'Groat's house and the Lizard.

Still feeling all this very strongly, I cannot see but that at present this colony is not fit for centralized government; not merely because communications are imperfect, but because you really cannot get people to make politics a profession, page 147and to spend a considerable part of their time at a distance from their homes. Nor are the people I think disposed or fitted to work together, as I trust they will be when they have mixed more with each other, and become more naturalized in their new homes. They would obviously prefer keeping apart, and managing each settlement its own affairs; and this is a feeling upon which certainly no force should be put. The popular instinct is likely to be right, and at any rate cannot be contended with. I am content, therefore, to acquiesce in what I see clearly the event will be—namely, the abdication by the General Assembly of as much of its functions as it can with decency and propriety abdicate, both in order to save its members the inconvenience of frequent and protracted sessions, and because their constituents will prefer to have the chief part of their affairs locally managed. The history of Governments analogous to that of New Zealand shows almost invariably a constant growth of the central element, and I see little reason to suppose that New Zealand will be an exception to the rule. The reasons for this lie deep in the first principles of human nature; in its jealousy of external control, in its local attachments, its pride, its prejudices, its narrow mindedness, its patriotism. Upon the same principle that a man is more attached to his family than his neighbourhood, to his neighbourhood than to the community at large, the people of each confederated State are sure to feel a stronger bias towards the Government of their own State than towards the Central Government; and are sure to wish as much power as possible to be thrown into the hands of the former. There is no fear on that side of the question, except for one consideration, which I earnestly hope may prove temporary and evanescent. What I refer to is this: at present no doubt the struggle between the two will be apt to take more or less the form of a struggle between the mother country and the colonists, because every diminution of the power of the Central Government will be of course so much taken from the power of the Governor, who is an page 148Imperial officer, and given to the Superintendent, who is essentially a colonial officer; but I do not anticipate from that quarter any prolonged resistance to Provincial aggression. If the Central Assembly and the people generally desire to throw more and more of the management of affairs into the hands of the provinces, the mother country will soon I think get tired of interfering for the sake of preserving her indirect influence through the instrumentality of the Central Government; and, remember, there is no other obstacle to the will of the provincial constituencies. Their aggregate makes up the central constituency. It is not here, as it is has been in many European countries, where the central power has encroached on the privileges of municipal bodies. In these latter cases, you will find that the central power has always rested on a different basis, generally the basis of a powerful monarchy; while the municipalities were scattered and weak, and comprised a small proportion of the people. I repeat that in every case which I can remember of the same people choosing a central governing body, and local governing bodies, the local bodies have proved victors in the struggle which necessarily to some extent ensues. I am not, therefore, as some of my friends are, disposed to look with jealousy on the possibility of the Central Assembly wishing to retain too much power in its hands. I am more afraid of the provinces wishing to retain for an indefinite time ampler powers than will ultimately be consistent with the utmost development of the national greatness and prosperity of New Zealand.

The only powers which it occurs to me as essential that the Central Legislature should retain are—

  • 1. The power of levying any taxes, duties, and excises which may be required to pay the debts and provide for the expenses of the Central Government.
  • 2. The exclusive power of imposing Custom's duties.
  • 3. Of regulating commerce with foreign nations, and among the provinces, including harbour regulations, dues, &c.page 149
  • 4. Of establishing laws relating to bankruptcy and insolvency.
  • 5. Of regulating the coinage, or the issue of paper currency.
  • 6. Of regulating weights and measures.
  • 7. Of establishing and regulating courts of civil and criminal jurisdiction, with certain specified exceptions.
  • 8. Of altering the criminal law, with certain specified exceptions.
  • 9. Of providing for, organizing, arming, and disciplining the militia.

The reasons for prohibiting the Provincial Legislatures from exercising most of the powers above referred to are too obvious to require enumeration. With respect to the first of them however, namely, the power of unlimited taxation given to the Central Government, it may be necessary to remind you that it is absolutely necessary, because it is quite impossible to say what emergencies the Central Government may have to provide for. In all probability, however, its requirements will be met by indirect taxation—that is, by duties on consumption, which in fact constitute the only perfectly equitable mode of taxing populations so differently placed and circumstanced as the inhabitants of the various provinces of New Zealand. The only question which appears to me at all doubtful is whether the power of making and altering the criminal laws, and of establishing civil and criminal courts of the supreme kind, should be left in the hands of the Central or Provincial Legislatures; but on the whole I am of opinion that the diversity and conflict of laws and of judicial administration, are greater evils than those incident to a centralized judiciary. Besides, at present the business and the resources of the provinces are not sufficient to occupy the time and pay the salaries of competent judicial officers. If the question of the waste lands were a fresh one, i.e., if there were no pre-existing circumstances complicating the whole matter, by affecting differently the different parts page 150of New Zealand, I would prefer entrusting the power of regulating this subject to the Central Government, but such is not the case. The schemes on which the different settlements have been founded are so various, and the contracts which have been entered into, more or less on the faith of them, are so numerous, that I am fully persuaded the introduction of a uniform system would produce an amount of inconvenience, annoyance, and positive injustice, which no advantages resulting from it would nearly counterbalance.

I now come to the question of the Executive. Whatever may be the limits which the Central Legislature may consent to fix between its own jurisdiction and that of the provincial authorities, it is essential that it should carry into effect the legislative powers which it may retain by means of its own officers. You ought not, I am convinced, to think of making the officers charged with executing its mandates responsible to the provincial authorities. I have heard many people talk as though they thought it would be desirable to place the officers of the Customs and of the Postal Service, and other departments which are admitted to be Central, in the gift and under the direction of the Provincial Superintendent. Such a plan is out of the question, if the complex system is to work at all, and the Islands are not to be divided into six distinct and independent Governments. It was fully tried, to speak of no earlier instances (such as the Amphictyonic and Germanic Leagues) in the first confederation of the United States, and broke down thoroughly and hopelessly within ten years. The articles of that Confederation provided that Congress should deal only with the States, not with the individuals inhabitating the States; should impose contingents, not collect taxes; should make laws on various subjects, but not possess any machinery for executing them. The result was the utter impotence of Congress. The States refused, or rather neglected to pay its contingents, or to execute its laws, and it was helpless: it had no means of forcing or of punishing them. Under these circumstances, page 151when the Union seemed on the point of perishing, a Convention was summoned to consult for the safety of the nation. It is unnecessary to expound to you in detail the provisions of the Constitution which was drawn up by that Convention. For my present purpose it is sufficient to note that, as the leading defect in the old system was the weakness of the Federal Government, so the remedy adopted was to give the Federal Government the power of dealing by means of its own officers for all lawful purposes, with each individual in the Union. Every Custom House officer, every postmaster now holds his appointment directly either from the President of the United States, or from the head of one of the Federal departments, and has nothing whatever to do with the Governor and the other authorities of the State he may happen to reside in. This remedy was found perfectly effectual, and I think that from thenceforward it might be laid down as a political axiom that without such a provision no constitution of the complex kind could be carried on; the Central Government would infallibly die of paralysis or of inanition.

On the other hand, it is not less important that the Provincial Executive should be made independent of the Central. The Constitution as it now stands leaves this part of the subject (whether from inadvertence or not I cannot say), in a strange state of confusion and anomaly. The name and the popular idea of the Superintendent would seem to point him out as the head of the Provincial Executive, but the Act confers no executive powers on him at all. He will be in fact little better than a sinecurist (and by no means a dignified one), for he will have nothing else to do, but to execute the orders of the Governor, as regards the allowance or disallowance of bills, and some other legislative proceedings of a merely formal character—orders which might be carried into effect just as well, so far as I can see, by means of a communication from the Governor to the Speaker of the Council. It is possible, no doubt, that the Governor may by com-page 152mission confer on him executive powers; but if so, the jurisdiction which the Governor may create will be subject to any limitations which he may choose to impose, and will be revocable at his pleasure. And in the meantime he will have the whole patronage of the provinces as before; the Government officers and the magistrates will hold their commissions and appointments from him; in short, as regards the executive department, no change whatever is effected by the act.

Now I cannot conceive that this system should work tolerably for one year, for one month. I cannot anticipate anything but confusion and conflict as the result of an officer elected by the people being the organ and representative of the Governor. In many of the provinces—perhaps in all— the Superintendents will, as a matter of fact, be men who have been distinguished for their opposition to the Government—certainly men between whom and the Governor there will be no mutual confidence. At any rate it may be so, now and always; and over such men, when once in office, the Governor will have no means of exercising any effectual control. It is true he will have the power of giving them instructions; but suppose they disobey those instructions, as they infallibly will do if they dislike them, what will he do? The Superintendents, backed by the people who have chosen them, who pay them, and who (I will assume) sympathize with their views, will no doubt refuse to act the anomalous and subordinate part assigned to them; and, if so, the Governor can do nothing, except either give way, or bring things to a dead lock, which will produce a chronic rebellion. I am confident, therefore, that the Assembly must at once propose that this blot in the existing system be removed, by making the Superintendents chiefs of the Provincial Executive, and supreme within the limits of their local jurisdictions. This is quite irrespective of the question treated above, as to whether the legislation of the Central Assembly should over-ride that of the Provincial Councils or not. For example, the legislation of Parliament in England can over-ride at its page 153pleasure the bye-laws of the Corporation of London; but the Crown has nothing to do with the making of those bye-laws, nor is the Lord Mayor in his executive capacity subordinate or responsible to the Secretary of State. I repeat that it should ever be present to your minds, as a fundamental element in your consideration of the subject, that the Central and the Provincial departments of Government must have no connexion with each other; they must travel on lines parallel but apart; neither responsible, neither subordinate to the other, but each free and independent within the limits of its own jurisdiction.

I now come to a point of great importance in connection with the distribution of powers between the Central and Provincial Governments—I mean the constitution and functions of the Judiciary. However the distribution of powers may be settled, it is of primary importance that it should be settled by law, and that the law should be interpreted and enforced by an independent tribunal. We ought to know exactly what the Central Government is or is not to do, and what the Provincial Government is or is not to do. The worst distribution fixed and known is better than one depending on arbitrary caprice. As the matter stands at present, the Central Legislature can do anything it pleases, and the Governor-in-Chief anything he pleases, so far as any rights of the Provincial Legislature and Executive are concerned; so that in fact no man would be safe in acting on a Provincial law until it shall have been sanctioned and confirmed by the Central Legislature. It is essential, therefore, that, when the Central Legislature shall have formally abandoned certain powers to the Provinces, from thenceforward all questions of jurisdiction be referred to the Supreme Court of the Colony; and that this Court, moreover, shall be so constituted as not to be, nor even to appear dependent or partial. At present, in whatever estimation we may hold the character of particular Judges, the composition of the Judiciary of this colony is such as necessarily to deprive page 154the community of all confidence in its independence. Every Colonial Judge holds his office at the pleasure of the Crown, and may be suspended or dismissed by the Governor; and this power is not theoretical only; as a matter of fact it has been exerted more than once within the last few years, and in the neighbouring colonies. Now the precarious position of the Judges may produce but little practical inconvenience when the questions tried by them are the ordinary ones at issue between individuals; but when constitutional questions—questions between the Crown and the subject—or (to put it another way) between the Governor and the Superintendent, come before the Supreme Court, it is manifestly wrong, indeed monstrous, that the Judge who tries the case should be dependent on one of the parties before him for his office—a party whose acts he is perhaps called upon to declare void. I repeat that no argument drawn from the character of particular Judges is worth anything against this radical defect in their position. We know how Judges have been tampered with by the Crown, not so very long ago, in England, and how the sense of this as a practical pressing evil led, after the Revolution of 1688, to the alteration in the English Judges' tenure of office from "pleasure" to "good behaviour." In America the independence of the judiciary is still more firmly sacred; for in England it is only the superior Judges who hold their commissions during good behaviour; and even they are liable to be removed on an address of both Houses of Parliament. The Judges, not only of the Supreme Court, but of every inferior Court of the United States, hold office on the same tenure, under the guarantee of the United States Constitution, which is (humanly speaking) unalterable. Moreover, it is provided by the same article in the Constitution, that the salary of a judicial officer shall never be reduced during the lifetime of its holder. Now, in a colony there is evidently much greater necessity for securing the independence of the Judges than in England or America, because in a colony the power of suspending or dismissing page 155them is vested in men over whom the community affected by their acts has no control, and who are practically independent even of public opinion; yet such is the low estimation in which colonial rights have been held in England of late years, that a principle so obviously sound in theory, so strongly supported by precedent and analogy, and so peculiarly necessary in colonies, as that of judicial independence, has not been extended to them. There is, indeed, in the Constitution now before us a clause which at first sight would appear to be founded on a sound sense of the importance of the view which I have been urging; and so it is in a manner, but that manner is eminently characteristic of the spirit in which colonial matters are approached. The clause secures the Judges, it is true, but against whom? against the colonists (violating by the way a sound principle by naming the sum which they are to receive); but it never occurred to Parliament that it might be advisable to make them independent of the Crown and the Governor as well; that, I suppose, we should be told, would have been "inconsistent with monarchical institutions;" so the Judicial Bench is left independent of those whose occasional control might possibly be beneficial; dependent on those who, as they have no interest, ought to have no voice in the matter at all. A reform, then, in the position of the Judges of the Supreme Court ought to be one of the first to occupy the Legislature of New Zealand.

I now come to the third division of my subject—namely, the form and functions of the different departments of the Government, and the remaining features of the Act, which have not been discussed under the two previous heads.

I will take first the office of Superintendent. This functionary is to be elected by the people for a term precisely corresponding to that of the Provincial Councils' existence; his appointment is subject to the disallowance of the Governor, and he is liable to be dismissed on an address of the Provincial Council. The functions which the Act gives him are wholly concerned with the making of laws; and the provision for his page 156dissolution (if I may so speak) contemporaneously with the dissolution of the Council, seems to stamp him still further with a purely legislative character. He seems, indeed, to be in short a kind of Upper Chamber. But if this be the intention of Parliament, I must say that the conditions under which it is provided he shall exercise his functions, seem to me so strange as to be almost ridiculous. I never before heard of a branch of any legislature which was "subject to instructions "with respect to the discharge of its legislative duties—in other words, which was bound by law to vote as it was bid. I know many legislative bodies which are practically in that predicament, but I should think this was the first instance of such a plan being put into a paper constitution. Again, the unfortunate Superintendent is not merely forbidden, on the one hand, to have a will of his own as regards assent to or disallowance of bills; but he is also, on the other hand, dependent for his salary on the Council, and subject to dismissal at their instance. So that the upper branch, of which the sole apparent use is to be a check and balance to the lower, is deliberately placed in the power as regards those important particulars, of its legislative colleague. If the Superintendent disallow a bill, forthwith the Council addresses the Governor to dismiss him. It is true that the Governor may refuse, and this is the best chance the poor man has of enjoying his office for a reasonable term, the Governor and the Council being tolerably sure to be on such a footing with respect to each other, that if he displeases the former he will be backed by the latter, and vice versâ. But if the Governor refuse to dismiss him when called upon, the Council will stop his salary, which will probably decide the question for all practical purposes, whether the Governor like it or no. On the whole I cannot imagine a public officer placed in a more perplexing and humiliating position; not knowing what he is to be or to do; in one sense the representative of the people, in another the creature of the Governor; bound by the terms of his contract to serve two masters, who page 157are sure to be at variance, and one of whom can deprive him of his pay, the other of his occupation—sure only of one thing, which is, that he must not act an independent part, or follow his own judgment, lest he unite both against him, and so become inevitably "dissolved," without a voice being raised on his behalf. I can only account for the contradictions and anomalies which appear in that part of the act that relates to the Superintendent's office in this way: according to the original draft he was to be appointed by the Governor, and to have a fixed salary payable out of the Civil List, in which case his position would have been the ordinary and intelligible one of a subordinate official of the General Government, and I suppose that when the office was made elective, and otherwise to a great extent dependent upon the people of each province, it was forgotten to accommodate the rest of its conditions and functions to the new state of things. But however this may be, the General Assembly will have carefully to consider the subject of the Superintendent's position, as it is an extremely important one. In my opinion he ought to be made primarily the head of the Provincial administration, supreme within his jurisdiction; he should also be invested with legislative powers of the kind usually possessed by the Executive Chief in constitutional countries, I mean powers of veto and dissolution. He should be released from his degrading vassalage to the Governor, with whom he ought really to have nothing whatever to do. He should be made, moreover, absolutely independent of the Provincial Council, by being elected for a fixed term, and by a provision that his salary once fixed shall not be reduced during his continuance in office. There appears to me neither reason nor advantage in connecting the termination of his office with the dissolution of the Council, and in making him liable to dismissal on an address of the Council. If his office were not elective and temporary, some such provision might perhaps be required, but as it is, his responsibility to the people makes it quite safe to keep him independent of the Legislature; and page 158the absence of a second chamber makes such a check upon hasty legislation peculiarly necessary. The Assembly may also consider whether it will be advisable to give him any other work besides that of "superintendence:" probably (in the smaller provinces at any rate) his time will not otherwise be fully occupied; but this is a comparatively unimportant matter of detail.

I do not think it necessary that I should add anything to what I have already said on the subject of the Provincial Legislature. I will repeat that, the only limit to its powers should be the limit of his jurisdiction. I mean that whenever the subjects on which it may legislate shall have been fixed by the Central Assembly, thenceforward upon those subjects it should be supreme; that its legislation should not be referred to the Governor for his sanction, nor be subject to be over-ridden by the concurrent jurisdiction of the Central Legislature. If the Central or Provincial Legislature exceed its powers, of course its acts, pro tanto, ought to be void, and the question whether it have done so or not in any particular case, should be decided by the Supreme Court, or whatever may be the proper judicial tribunal.

I will only say a few words in passing on the subject of the franchise, for I fear it has now ceased to be a practical question. In my opinion the qualification fixed by the Act, involving as it does almost what is vulgarly but improperly called universal suffrage, is too low. I hold that before the responsible and arduous privileges of an elector under a popular constitution be entrusted, some approximate test of reasonable competence on the part of the trustees should at least be sought for, and I do not think that every man twenty-one years old, or every occupier of a house worth £5, is capable of exercising even indirectly the functions of a legislator with advantage to the community. I think we should endeavour by some more stringent process to distinguish the more moral, more industrious, more educated, and more intelligent part of the community from the rest, and to page 159confine political power, as far as we can, to the former. I know we cannot do so otherwise than very imperfectly; I know that wherever we draw the line, many good men will be excluded, and many had men admitted; but that is of course no argument for drawing the particular line so as just to include males of twenty-one years old, or occupiers of houses worth £5, rather than at any other arbitrary point. It is, and must be a question of degree only, upon which, as there can be no particular reason for any two men to hold exactly the same opinion, some sort of compromise or general agreement is necessary. Wow, my deliberate opinion is, that to a new country, where almost every sober, industrious, and intelligent man is tolerably sure, within a short period, of acquiring property, a small property qualification is peculiarly well adapted, and would constitute, generally speaking, a fair test of political fitness. There would not be here, as in England, any class permanently excluded by it (that is if it were not too high); all that it would do would be to involve the necessity of a certain apprenticeship, in the case of men living by manual labour, before they could obtain the franchise, and to exclude altogether from the management of public affairs those only who should prove themselves incompetent to manage their own. Nothing has ever impressed upon me more strongly the careless and contemptuous manner in which colonial questions are treated by British statesmen, than the fact that men who would sacrifice half their estates sooner than consent to the establishment of a franchise like this in England, either contentedly acquiesce in, or actually advocate the enactment of it for New Zealand. It is really incredible that upon this all important question of the suffrage under the new Constitution, not a single observation, so far as I can discover, was made in either House of Parliament.

Independently of general reasoning, there has always appeared to me to be a special ground for desiring the establishment of a property qualification for electors in New page 160Zealand. It is this: that I cannot think of any other tolerably satisfactory plan for dealing with the question of Maori voters. I never approved of the way in which the popular party at Wellington appeared to me to shrink from expressing a decided opinion on this question; and I need not say that I repudiate what I will call the monstrous proposal once made by Sir George Grey, that the Governor should have the power of nominating electors of the Native race. I think the principle adopted in this Act of making no distinction at all between the races a sound one; but I very much doubt its working well practically, unless combined with a property qualification. If you imposed upon the Maori the necessity of acquiring a certain amount of property as an individual, before you allowed him to exercise political privileges, you would probably insure that, speaking generally, your Maori constituency would be composed either of chiefs or of men who had adopted to some extent European habits, at least who had learned to practice the virtues of industry, perseverance, prudence, and self-denial. Such men would really in most cases be very useful and worthy citizens of a free state, while at the same time, without imposing any invidious distinctions, you would practically limit their numbers, so as to secure the natural and just preponderance of the white race.

As the case now stands, I regard by no means without uneasiness the possibility of the constituencies being utterly "swamped" by Maoris. I do not know exactly how the law may come to be worked, but if it be worked fairly and impartially, I foresee that in the Northern Island almost any amount of Maori votes may be created among a population wholly incapable of understanding the simplest rudiments of the questions on which their votes will be brought to bear—a population which will be a mere prey to designing Europeans. Especially, it is difficult to over-estimate the means of influence which the position of the Native population under this Act places at the disposal of the Executive page 161Government. But wishes and regrets on the subject are now vain: one of the advantages of beginning with a qualification high rather than otherwise is, that while it is very easy to extend, it is almost impossible to restrict an existing franchise. I look, therefore, upon this as a settled question, and should not perhaps have alluded to it, if I did not think it uncandid to abstain from stating at the proper time, in public, views of an unpopular kind which I have always entertained and strongly expressed in private.

The next provision in the Act before us on which I think it necessary to comment is the composition of the Legislative Council of New Zealand. The Act provides that her Majesty, acting through the Governor, shall have power to summon such persons, being not less than ten, as her Majesty shall think fit to the Legislative Council, and that these Legislative Councillors shall hold their seats for life. To use the popular phrase, you are to have a Nominee Upper Chamber. Now, here again we have under another form, the old idea, against which so much has been already said in this lecture—the idea of keeping up the "interest of the Crown" in these colonies by means of a control over their Governments and Legislatures. Why should the Colonial Minister of England, I want to know, exercise any influence at all over your legislation? As he has no business to veto your laws, why should he appoint your legislators? Who is the better for his doing so? What conceivable interest has England in forcing into your Legislature men whom you would not yourselves choose for that purpose? And as to your own interests, surely you are the best guardians of them. It is your business to take care that the best men that can be obtained shall be obtained to make your laws. It signifies nothing to any one else. I cannot understand how any one can seriously attempt to draw a parallel between the peerage of the United Kingdom, and a chamber of colonial nominees. The comparison is ludicrous. In the first place, I think I may assume that even at home a body like the House of Peers could not page 162now for the first time be created. Its power and influence and greatness depend on circumstances of an altogether peculiar kind; it lives by its historic glory, by the prescription of a mighty name, and by its intimate connection with every other part of the Constitution, quite as much as by the hereditary wealth and dignity of its members, and by its suitableness to the aristocratic and semi-feudal character which still stamps British society and British institutions What analogous means of influence would a nominee chamber possess here to compensate for its anti-popular character? Whatever traditions may be connected with it are certainly not of a very glorious or imposing kind. From the general equality of conditions that prevail in this country, it is not likely that its members will be much removed by property and position from the mass of their fellow-citizens. Nor is it likely that, with the very best intentions, the Governor will be able to get men of eminent merit and ability to become his nominees. Such men will, I trust, have the opportunity of holding, and will certainly prefer to hold seats in the popular branch of the Legislature. If, even in England, an active politician regards removal from the House of Commons to the House of Lords as a supersession, or at least as extremely detrimental to his political influence, à fortiori will an analogous feeling prevail here, where the acceptor of a nominee seat will be exposed to so many prejudices and to such popular odium. I am inclined, therefore, to anticipate that the nominee chamber having no real stamina or foundation will not be an active nuisance; it will rather fall speedily into impotence and contempt. If the Governor continue to exercise, as at present, a personal influence and control in the management of your local affairs, the nominees will be of no material use to him. He may possibly contrive to do through their votes what he would otherwise do openly on his own responsibility, and thus throw on them some part of the odium incident to his own position, but that is all; and I do not think you will be much worse off for the alliance. page 163If, on the contrary, your affairs come to be managed by responsible Ministers, as in Canada, they will adopt like the Canadians a very simple method with the nominee house, in order to bring it into harmony with the Executive and the majority of the Lower House. They will just "swamp" it to the necessary extent with their own partizans. Under either of the above systems, there will always be a strong tendency to increase the members of the Council, as successive Grovernors or successive Ministers find it convenient to satisfy adherents or over-ride opposition; and they know little of the way in which colonial politics are carried on, who think that any constitutional scruples or regard for the dignity of the order, will interfere, as at home, to prevent the "swamping" process from being employed to any required amount. It is possible, therefore, that you will quickly have a very numerous Legislative Council.

If we must have nominees, it is undoubtedly an improvement on the old nominee system that they should be appointed for life, as they will thereby be able to preserve some degree of independence; but, on the other hand, by this provision, if the full complement which may be considered right be made up within a few years, as I have shown to be probable, all chance (even if there were otherwise a chance) of attracting into the Legislative Council from time to time the best men in the colony is excluded. In a population like ours deaths occur but rarely; and it is probable that twenty years hence the composition of the Legislative Council will be pretty much the same as next year, or the year after, neither better nor worse; your security against this, however, is that there is not much likelihood of the Constitution lasting in its present form for twenty months, to say nothing of twenty years. For my own part I am somewhat inclined, with Mr. Gladstone, to think it not improbable that the operations of the Legislative Council may come to a stand-still on the vulgar question of money payments. There is not the slightest chance that the people will consent to pay the expenses of nominees, and I page 164doubt very much whether, without payment, you will get a quorum to attend the Legislature; unless, indeed, a sufficient number of them happen to reside in the immediate neighbourhood of the seat of Government.

The subject of the political position in which the Native population is placed by the Act now under review has been already alluded to; but it is too important not to require some additional consideration. The Act says that the Governor may "constitute within New Zealand convenient electoral districts," &c. I am not sure whether, under this clause, the Governor has or has not power to exclude the inhabitants of any part of New Zealand from the privileges which it confers. If he has not, those large tracts of the Northern Island which are hardly ever visited by Europeans, and in which the bulk of the Natives live, must be formed into districts and elect members; if he has, as I suppose, then I must say that the precise nature and limits of a power so unconstitutional, and so capable of being abused, should in my opinion have been clearly laid down. With the principle, however, which the Act involves—the principle, namely, that the European provinces are to constitute a "pale" outside of which Native laws and customs are to prevail, I fully agree. It is in fact only recognizing and mating legal a state of things which will exist whether you will or no. But I do not at all agree with the policy of setting apart a sum for the benefit of the Natives, over which the Assembly is to have no control. As the Natives are to have their full proportionate influence in electing representatives to manage the general expenditure, it is unfair that they should have a special provision besides. Nor do I see why it is to be supposed that the Assembly would show any reluctance to give whatever might be required for Native purposes; while I think the disposal of it would be much more properly and safely vested in their hands than in that of the Governor. There is a popular notion, which Colonial Governors, I observe, take great pains to foster, that colonists are the natural enemies, page 165and Governors the natural guardians of Natives. But I can not find any ground for this notion, either in reason or experience. It is reasonable to suppose that those who are the most deeply interested in preserving peace and friendly intercourse with the Natives, and promoting their civilization and prosperity, will be the most likely to devise and adopt a policy conducive to those ends, and I utterly repudiate the idea, which is, I suspect, in fact though unavowedly, at the bottom of this theory, that an officer chosen by the Crown will be wiser, more humane, and more likely to obtain the confidence of the Natives, than one chosen by the colonists. Nor does experience, I think, tend to prove that imperial officers understand how to deal with the Natives better than colonists. If I look to New Zealand, I find that the only serious Native hostilities we have had to contend with sprang directly from the acts of the Government, and nothing is more remarkable in the history of the early colonization of this country than the amicable relations which prevailed between the settlers and the Maoris, so long as Government did not interfere, and the immediate disturbance of those relations when it did. Again: when I look to the history of other countries, I find an analogous result. I cannot discover that the policy of the North American colonists (who were practically independent of England) towards Natives was either less humane or less successful than that which has been pursued at the Cape, in Australia, and in Van Diemen's Land, where the mother country has exercised despotic power. I hold, therefore, that the relations of colonists with neighbouring savage tribes, like every other matter of primarily local interest, ought to be left exclusively to the colonists themselves. The old policy—the North American policy—was right in this, as in almost every other point.