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The Pamphlet Collection of Sir Robert Stout: Volume 70

Constitutional Reform

Constitutional Reform.

Now the very first task which the democracy in this colony ought to determine to perform is to secure a perfectly free constitution. (Hear, hear.) At present your constitution is one of the most backward in the world. Under the form of representative parliamentary institutions you are really governed by an uncontrollable oligarchy, which can impose its will upon the whole of the inhabitants who are absolutely helpless to resist its deerees. The Legislative Council, about nine of whose members forms a quorum for the transaction of business at the present time, possesses absolutely despotic power. Nine persons representing nobody, responsible to nobody, and undistinguished by intellect, culture, or great achievements, have the power of permanently resisting the will and mature judgment and opinion of the people of this country. (Shame.) When lately the intention of the Government was made public to advise the Governor to appoint a sufficient number of Liberals to the Legislative Council for the purpose of passing into law the measures agreed to by the House of Representatives, there was a howl of indignation from the Tory press of the colony, and the proposal was denounced by ignorant critics as unconstitutional and wrong in the highest degree. The Governor was advised by those self-styled constitutional purists to disregard the advice of his responsible ministers. Now if you will grant me your attention for a very few moments I think I shall be able clearly to demonstrate to you that the proposal of the Government is strictly in accordance page 6 with constitutional precedent and law, and is the only method prescribed by the constitution for bringing an obstructive "Upper" House to reason. Now, in the first place, with regard to the Governor's position. He is a Viceroy. He represents the Sovereign. He has delegated to him a portion, and only a portion, of the Sovereign's prerogatives. Therefore it cannot be contended that the Governor occupies a higher constitutional position as regards New Zealand than the Queen occupies with reference to the United Kingdom. If therefore the Queen is bound to accept the advice of her constitutionally chosen ministers, so also is the Governor of a self-governed colony compelled to act upon the advice of his ministers. In Green's "Short History of the English People" it is said, "In outer seeming the Revolution of 1688 had only transferred the Sovereignty over England from James to William and Mary. In actual fact it was transferring the Sovereignty from the King to the House of Commons." Bagehot on "The English Constitution" says," The Queen is only at the head of the dignified part of the Constitution. The Prime Minister is at the head of the efficient part. . . . The Cabinet, in a word, is a Board of Control chosen by the Legislature to rule the nation." Again, "The Sovereign has three rights, the right to be consulted, the right to encourage, the right to warn." "When the House of Lords in 1832 opposed the first Reform Bill, the Ministry of the day, seeing that the peers could not be brought to reason in any other way, advised the King—and the advice was accepted—to create a sufficient number of new peers to overcome the opposition of the Tory lords. And the King gave his ministers a warrant in this form, "The King grants permission to Earl Grey, and to his Chancellor, Lord Brougham, to create such a number of peers as will be sufficient to ensure the passing of the Reform Bill.—first calling up peers' eldest sons. William E. Windsor, May 17th, 1832."

Bagehot, in the work which I have just now quoted, states as follows:—"Just as the knowledge that his men can strike makes a master yield, in order that they may not strike, so the knowledge that their house could be swamped at the will of the people made the lords yield to the people." The same writer goes on to say, "The Executive can say to the peers 'Use the powers of your House as we like, or you shall not use them at all. We will find others to use them; your virtue shall go out of you if it is not used as we like, and stopped when we please.' "Professor Taswell-Langmead, in his recent work on the Constitutional History of England, in speaking of the contemplated swamping of the House of Lords in 1832, says:—"The threatened creation of peers was denounced at the time by the Duke of Wellington and the Tory party generally, as an unconstitutional exercise of the prerogative, but it was admirably answered by Earl Grey, page 7 'I ask, what would be the consequences if we were to suppose that such a prerogative did not exist, or could not be constitutionally exercised? The Commons have a control over the power of the Crown, by the privilege in extreme cases of refusing the supplies; and the Crown has, by means of its power to dissolve the House of Commons, a control upon any violent and rash proceedings on the part of the Commons, but if a majority of the House of 'Lords is to have the power whenever they please of opposing the declared and decided wishes both of the Crown and the people without any means of modifying that power—then this country is placed entirely under the influence of an uncontrollable oligarchy.'"

The learned writer goes on to say, "In its practical aspect an extraordinary creation of peers is to the House of Lords what a dissolution is to the House of Commons; and although such a creation ought never to be made use of except in the greatest emergency, its use in such an emergency is not only constitutional but essential to the safety of the Constitution itself." Gentlemen, you will thus see that if the House of Lords in England refused to bow to the will of the people it is the constitutional privilege of the Government to advise the Crown, and it is the constitutional duty of the Crown to accept the advice—to create as many new members of the House of Lords as would be sufficient to overcome the opposition of that House. (Cheers.) Now the House of Lords is, to put it moderately, in a much stronger position in the United Kingdom than our Legislative Council is in New Zealand. The House of Lords has great traditions. It is the representative body of a great class. It constitutionally composes two estates of the realm. Many of the most learned of the nation are to be found within its portals. Some may think—and I am one of those—that it has survived its uses. But, nevertheless, there can be no comparison between the House of Lords and our pinchbeck burlesque imitation called the Legislative Council. If therefore it is constitutional and proper to create an unlimited number of hereditary peers, if the necessity arises, in order to pass into law measures upon which the people have set their hearts, it is equally constitutional and regular to appoint a sufficient number of members of the Legislative Council to carry into effect the laws which the representative Chamber, in obedience to the wishes of the electors, has duly passed. (Cheers.)