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The New Zealand Constitution Act [1852]: together with correspondence between the Secretary of State for the colonies and the Governor-in-Chief of New Zealand in explanation thereof

Provincial Councils

Provincial Councils.

37. Next ascending to the legislative body, which it is proposed should immediately succeed municipalities.

38. I think that power should be given to the Governor-in-Chief to divide the New Zealand islands, when he thought it expedient to do so, into the five provinces named in the margin;* and that power should also be given to the Governor-in-Chief, with the advice and consent of the General Legislature of these islands, to alter the boundaries of such provinces, and to create others if necessary.

39. One of the provinces I have named would probably immediately contain three boroughs or munici

* Auckland or New Ulster, Wellington, Nelson, Canterbury, Otago.

page 48 palities; and they might all, from their nature, contain either several municipalities or none. If the returns of the native population are at all correct, the proposed province of New Ulster would now contain,
Europeans.....10,000 nearly 80,000 souls;
Natives..........70,000 nearly 80,000 souls;
that of Wellington,
Europeans.............8,000 48,000 souls, exclusive of the military.
Natives....................40,000 48,000 souls, exclusive of the military.

The other provinces would at present contain comparatively small populations. But a rapid increase in the European population of the whole of New Zealand is taking place.

40. To each province that might be created, I propose that a Legislative Council should be given, to be called the Provincial Legislative Council. I propose that for the present those Councils should be constituted in the manner provided in the enclosed Ordinance, and that they should possess all the powers which that law confers upon them, although I think that certain alterations in their constitution and powers should shortly be made in the mode which I will presently explain.

41. I, perhaps, ought here to add that, in conformity with the terms of the Charter and Royal Instructions, it is only provided in the Provincial Councils Ordinance, now transmitted to your Lordship, that those Councils shall not legislate upon the several subjects named in the Charter and instructions, and in a subsequent despatch addressed to me by your Lordship. If this question was left entirely to my discretion I should, with a view of securing uniformity in the administration of justice throughout the entire islands, prohibit the Provincial Councils, in addition to the other subjects named in the enclosed Ordinance, from making any laws For the establishment of any courts of judicature, criminal or civil, or for the alteration of the constitution of, or course of practice in, any such courts.

And further, in order that the same punishment might attach to indictable offences throughout the whole of New Zealand, instead of enacting, as directed by your Lordship, and as has been done in the page 49 thirteenth section of the twenty-ninth clause, that it shall not be competent for the Provincial Council to make any law For inflicting the punishment of death or transportation for any crime or offence, I should wish to see it enacted that such Councils should not make any law For altering or affecting the criminal law of the colony, so far as relates to any felony, treason, or misdemeanor prosecuted by indictment or information.

42. If such a Legislative Council as I suggest is given to each province, and the members of it receive the payment proposed for their attendance, then annual sessions might be held at the capital of the province without inconvenience, and each of these Councils would possess the most ample, in fact all requisite powers of legislation for the regulation of all questions that could arise within a province; and as the whole of the local revenues (except that portion which is required for general purposes, including the civil list,) is placed at the disposal of such Legislative bodies, there can be no doubt that the revenues of the country would be fairly and equitably applied throughout its whole extent.

43. Legislative Councils of this nature appear to me to present great advantages in a country circumstanced as New Zealand is. I will name a few of these advantages:

Firstly—They secure, in the only manner which I believe to be practicable in New Zealand, real local self-government throughout every part of these islands.

Secondly.—If any questions of an exciting kind should arise between the European and native populations, the majority of the provinces, from the small number of natives in them, would have no great personal interest in such questions. Their inhabitants and legislatures could therefore form a dispassionate and unprejudiced opinion on such questions. Hence the general Government in pursuing such a line of policy towards the natives as justice and humanity might demand, could be certain that it would not be compelled to yield to momentary passions, prejudice, or self-interest; because there would be a large number of persons, and several regularly constituted legislative bodies, on whom it could rely for support. On the other hand, if the General Government, weakly yielding to public clamour and page 50 prejudice, was about to give effect to the momentary merely local popular will of any province by committing some act of injustice towards the natives, regularly constituted legislative bodies would be in existence to give expression to their opinion, and thus check its action.

Thirdly.—The constitution of such legislative bodies, which possessed such extensive powers of local legislation, would, for at least several years to come, render the frequent assembling of the General Legislature entirely unnecessary.

Fourthly.—The powers of legislation of such Councils being merely of a local nature, and being restricted in reference to general matters, a great difficulty is avoided; inasmuch as Ordinances passed by them need not be referred home for the Royal assent, but might, as is provided in the enclosed Ordinance, be either allowed or disallowed by the Governor-in-Chief. The question therefore which relates to the transmission of all colonial laws for the allowance or disallowance of the Crown would be much narrowed; indeed it could only arise in reference to laws passed by the General Legislature; and as that body would so seldom meet, and the subjects reserved for its legislation are so few, the probability is that it might never be thought of in as far as relates to New Zealand.

Fifthly.—Such Provincial Legislative Councils would greatly increase the efficiency of the municipalities, by forming the proper bond of union between the several boroughs of any one province, which would then all be fitted as it were into one body politic, the action of the several parts and of the whole of which would be in entire harmony.

44. In my despatch, No. 123, of 24th October, 1850, transmitting the draft of the Provincial Councils Bill, and in the other despatches named in the margin,* I reported so fully upon the reasons which induced me to adopt the rate of franchise for electors named in the enclosed Ordinance, the principles of no express qualification being required for members of the Council, and of paying the estimated amount of their probable expenses, as also upon the reasons

* No 106, 29th Nov., 1848—No. 4, 2nd Feb.—No. 23, 15th March—No. 27, 22nd March, and No. 161, 30th Nov., 1849.

page 51 which led me to recommend that these Councils should only be elected for two years, that I do not think it necessary to trouble your lordship with a further explanation on these subjects. I therefore now pass on to the form of General Legislature which I would recommend for these islands.