OBSERVATIONS ON THE ADVANTAGES OF A REPRESENTATIVE ASSEMBLY
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ADVANTAGES OF A REPRESENTATIVE ASSEMBLY
NO one can have watched the progress of public opinion in New Zealand, especially in Auckland, during the last twelve months, without coming to the conclusion that the form of government which has been established in the colony is totally inapplicable to the circumstances and character of the people. At the date of the latest advices from that town, a great deal of discontent prevailed, and, although I have no very accurate accounts of the shape which it had assumed, its result was--a demand for a representative assembly. This demand I am about to support, under the full impression that no care on the part of a colonial minister, though stimulated by the most perfect good will, can possibly guard him against error as to the wants of the colonists. Nothing short of a miracle, indeed, can impart to a distant government a just conception of the condition of the people. It takes but a little time for a sort of ex officio governing class to grow up in a new colony, and as our colonial system almost always places them in a position antagonist to the mass of the people; as moreover they very naturally desire a perpetuation of the profits and power derived from virtual irresponsibility; they almost invariably describe the people as unfit for representative institutions. As it is much easier for the minister for the day to believe than to investigate, they are usually listened to; whilst the most respectful representations of the people are received at least with sus-
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picion, and are generally neglected. I cannot help thinking that a colonial minister would find the business of governing our colonies greatly facilitated if a reasonable amount of confidence were placed in the representations of the people. Timely concession to the American colonies would have postponed, if not have prevented the revolution; and a decent regard for the representations and wishes of the people of Canada would assuredly have prevented the late disasters. It is not too much to say that in both cases the chief error lay in giving too much credit to the statements of the interested governing party--too little weight to those of the people. But of late we have had evidences of a more liberal spirit. The wise and liberal policy pursued by Sir Charles Bagot, in Canada, has completely allayed the spirit of discontent in that colony, and what is more important to my present purpose, it has created a hope among those who are connected with other colonies that at length a better era in colonial government has arrived. It is under this impression that I now take up my pen.
At the present moment New Zealand is governed by the governor and council, the latter comprising the attorney-general, the colonial secretary and treasurer, and three gentlemen holding the office of justice of the peace, and standing at the head of the lists of their respective districts. It may be thought that these last members were designed for the express purpose of infusing a spirit of independence into the council, the only prima facie claim to public confidence; but if this notion were ever entertained by the home government, it has been abandoned in the colony; one of the members having been dismissed in consequence of having pursued a line of conduct not approved of by the governor and the official majority. Whether the conduct 1 of the dismissed member were wise or foolish, upright or base, is not the question. But that the governor should,
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at the request of the council, dismiss a member whose conduct is obnoxious to his colleagues, cannot fail to impart to the council a servile character, make really independent men feel themselves degraded by an office held by such a tenure, and utterly deprive the council and its acts of public confidence. Under such circumstances, it is not at all surprising that the people of Auckland, who have the best opportunities of observing the character of the council, should be the first to demand a representative assembly, an example which will probably be followed in other parts of the colony.
Nor is the intrinsic character of the council calculated to carry public confidence against the source of distrust above pointed out. Of all the members, there is but one 2 whose previous education and habits give him the least claim to public confidence; the rest may be very worthy men, but they themselves must have been wonderfully astonished when they first found themselves converted into ready-made legislators. I do not say they may not be as good as many of the members of larger legislative bodies, but in large assemblies there is usually a considerable number of skilful members, whose experience, knowledge, and general attainments give a tone to their proceedings, and make up an aggregate "collective wisdom." But in the Auckland council, the knowledge and skill is in too few hands; the council will receive its tone from the incompetence of the majority, and instead of a collective wisdom, I greatly fear a collective folly will be its distinguishing characteristic.
Now, considering the character of the European population of New Zealand, it must be obvious, that a council of this
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character, can neither command respect, nor secure contentment; and yet the last is an object to which all others should be made to yield. A form of government which the people of a colony believe to be radically vicious, cannot be good for them; and even one which we may deem imperfect, may become highly productive of happiness, if the majority of the governed think it good. But in the eyes even of the most Conservative Englishman, a demand for representative government will not be deemed unreasonable. Between men of extreme opinions, there may be differences as to the necessary checks, but the principle of representation is sincerely approved by all, and therefore it is that a demand for a representative assembly, suddenly growing up in a colony, is always taken as a piece of evidence, that the people know well what they were about--that they value the institutions of their ancestors, and the demand itself is a sort of presumptive proof, that the people are really fit for free institutions.
But this presumption is strengthened into absolute proof when we regard the character and habits of the people of the colony. It may be said that for the most part New Zealand enjoys the advantage of a selected population. The leading colonists were men of good station in the society of their own country, and many of them of refined habits and education. The mass of the population was composed of men carefully selected as possessing certain qualifications, among which a good character for industry, morality, and general good conduct occupied a conspicuous place. I hardly know any colony which has enjoyed such advantages in this respect as New Zealand. South Australia had it to a considerable extent; but the selection of people for New Zealand has been more perfect; for the simple reason, that the experience derived from the past was more perfect.
But a still more potent reason in favour of representative
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government is derived from the fact, that until New Zealand was proclaimed a British colony the people had been accustomed to govern themselves; and notwithstanding the inadequacy of their means, they performed the function well. In this remark I do not confine myself to the Company's settlements, which are acknowledged to be made up of the best possible materials for preserving good order. I include the northern parts of the island, where good order was preserved in a most striking manner for some years before the authority of the Queen was established. Yet the population of the Bay of Islands was originally made up of the worst possible materials, though it is now happily much improved by a very considerable infusion of a vigorous and well conducted body of settlers.
I have already briefly alluded to the manner in which self-government was practised at Port Nicholson before the establishment of British authority. 3 The sovereignty of New Zealand had been repudiated by the government in a memorandum signed by Mr. J. Stephen, and published by order of the House of Commons. 4 In consequence of this repudiation the colonists assembled and attorned, as the old lawyers would have called it, to the lawful authorities of the country. They did not pretend to give up their own allegiance to their Sovereign; but, for their own protection, as denizens of a foreign state, to which the Crown had even sent a consul--for the present governor was at first so called, they demanded authority from the chiefs to exercise their own laws within the limits of their own territory; a privilege which, when duly explained to the intelligent chiefs of Port Nicholson, was at once conceded. Of the legality of this proceeding up to the date of the royal proclamation, I have not much doubt; but this is not the question at issue. What I desire to show is, that under this provisional measure of
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self-government good order was maintained in a very remarkable manner. It is true that the settlers very generally felt themselves bound by a strong moral tie; so that the laws were for the most part faithfully obeyed; but some cases of infraction did occur, and in these the law was enforced--leniently it is true, but nevertheless with such solemnity as most effectually to vindicate itself. To the political philosopher the state of social happiness secured at Port Nicholson, by means of self-government, affords an instructive picture; and great indeed would be the responsibility of a minister who should keep the people in a state of political bondage in a colony where the representative principle has worked so well, even in the face of many serious impediments. Unavoidable delays, for instance, took place in the surveys; the land could not be given out; farmers could not get possession; employment diminished; wages at one time shewed a tendency to decline; yet in the midst of all this, no complaint was heard; the people were convinced of the necessity for forbearance; and all murmurs were stifled for the sake of good order and the maintenance of tranquillity. Is not this an argument in favour of self-government, by means of municipal institutions and a representative assembly?
The argument in favour of representative institutions derived from the maintenance of good order, by the voluntary arrangements of the people themselves, without the aid of any lawfully constituted authority which the people were bound to obey, is even stronger in the case of the older settlement at the Bay of Islands, for the very reason that the difficulties were greater. The social state of Kororarika and of other parts spontaneously settled by Europeans, was much less favourable to the establishment of order. The Bay was for many years the resort of escaped convicts and runaway sailors; yet, in the face of this untoward population, anarchy was subdued, and the reign of order esta-
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blished long before British authority prevailed; before indeed there was any authority but that which was derived from common consent. 5 Public opinion had been growing up for some years and had effectually asserted its dominion; it had succeeded in restraining immorality, and crime had even been punished. The sound portion of the population had been increasing for some years previous to the year 1839, and society had assumed an improved tone. We see this evidenced in meetings for schools, and other measures conducive to public morality. Now, what I contend for is, that in exact proportion to the difficulties overcome is the strength of the argument in favour of representative institutions for the colony. One of the results of this improved state of society is, that the Bay of Islands is no longer avoided as a moral pest-house; on the contrary, there is reason to believe that the outcast population from the other colonies seek some other place of refuge. Within the last two or three years there has been a great influx of settlers of character and intelligence from the Australian colonies. Every such accession of people creates further improvement in the tone of morality, and pro tanto, strengthens my argument. But the strongest argument of all is, that the people have tasted the sweets of self-government. The people of the North have enjoyed political freedom for upwards of twenty years --those of the Company's settlements were trained up to the exercise of political rights, so that to substitute any other form of government repugnant to the feelings of the people, which the present anomalous council assuredly is, would be attended with incalculable evil to the colonists, and with very great inconvenience to the home government, without any assignable good. A contented population is surely an object worth aiming at, and that I contend is utterly impossible with a legislative body in which they are
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not represented, and composed of persons who, howsoever much they may be entitled to respect in private life, are not proper persons to entrust with the business of legislation.
The municipal ordinance passed last year by the council, in obedience to the instructions of Lord John Russell, is an excellent step towards the complete establishment of representative government in New Zealand. The establishment of municipal corporations in each locality, having a certain fixed amount of population, is undoubtedly the safest and best mode of applying, in the first instance, the principle to a country circumstanced like New Zealand. But assuming that the municipal bodies about to be established under the ordinance will be perfectly efficient for the purpose for which they are designed, they necessarily fall far short of what is meant, when representative government is asked for. The legislative council of New Zealand is composed entirely of men interested in one single settlement, namely, that of Auckland. It is, in fact, a mere close corporation, not well adapted to govern even the locality to which it belongs; and to entrust it with the power of legislating for the rest of the community, is as absurd, nay, as oppressive, as if the old close corporation of Bath, as it existed before the municipal reform act, had been endowed with power to legislate for the commercial town of Liverpool, and the great agricultural counties of Norfolk and Suffolk. The municipal corporation of Auckland would probably be as trustworthy, and would enjoy as much general confidence as the council. The council has all the local interest, which renders it an unsafe instrument of good government, with the additional defect of practical irresponsibility.
As population and wealth advance in New Zealand, the interest of each locality will be determined for the most part by its natural resources, and the ordinary occupations of its inhabitants. These will be best regulated by the most virtuous and intelligent men of each locality; but as an assembly of Yorkshire clothiers would but ill govern or
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legislate for a population of Cornish miners, or Staffordshire potters, so (considered without reference to party) an assembly composed of the officials of Auckland, who are all landowners in that locality, and a few Auckland traders, cannot enjoy, because it does not deserve the confidence of the population of the other parts of the colony.
In many respects, local interests completely merge in the general interest; in other words, there are interests which all the settlements have in common. They are all interested in a good system of land sales, in an economical expenditure of the public money, in freedom of intercourse with other colonies, and so forth; but amidst these are local interests which must necessarily bias an assembly entirely chosen from one spot, so as utterly to deprive it of public confidence, and which are only to be kept in due check by a body of men chosen from every locality, so that, by the wholesome conflict of all interests, those only which are common to all will be promoted.
For the purpose of constituting a general assembly, it is necessary to remind the reader of the numerous seats of population which now exist in New Zealand. They will be found enumerated in my letter to Lord Stanley, on the administration of justice in New Zealand 6 --an enumeration which is, I believe, perfectly correct. The first step towards the practical working of the representative system should be the division of the colony into electoral districts, each having a certain amount of population. Great advantage might be derived in other ways from a proper division of the country on the basis of population, partly perhaps modified by extent; all other objects for which a district division is likely to be required being kept in view. A few of these purposes may be mentioned: general and local representation; the administration of justice; all purposes of registration and of rating and taxation; education; defence, i. e. militia.
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The old Saxon principle of division and subdivision, of which the hundreds and tithings are an example, might be followed, so that one larger division might be made up of several smaller divisions. In short, the division once made would serve for every purpose of local and general administration.
My object in this paper is not to draw an ordinance in terminis, but merely to show that a representative assembly is the conspicuous want of the colony--the only means of making a contented people. Nevertheless, some indication of the mode of carrying the principle into operation may hereafter be useful, and is certainly not out of place.
The extent of the electoral districts being determined, each district should elect a single member. The period of election, the duration of, and mode of conducting the same, the time of assembling the legislature, and the duration of the provincial parliament, should all be fixed by law at the seasons and in the manner most convenient to the electors and members, regard being had for the ordinary occupations of the colonists. Where this has been neglected--where it has been left to the will of the Executive, I have seen some strange tricks practised for the purpose of packing, so to speak, a colonial assembly.
With regard to the franchise, it should extend to all householders or occupiers. In so sound, intelligent, and orderly a population as that of New Zealand, there could be neither excuse nor reason for narrowing the franchise; and a mere sham assembly--a mere pseudo-representative system--instead of producing that satisfaction and contentment which would arise from self-government, would only create an universal impression that the real object was to cheat the people with the shadow instead of the substance, to give them an assembly which might be made a servile instrument of oppression, that is, of as much oppression as can be practised with a free press. In a small colony, this may be really a good deal more than can easily be borne.
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In the creation of a thoroughly efficient assembly there would really be no difficulty, provided the object be seriously desired and the means be honestly chosen. It would require a knowledge of the seasons, the climate, the physical aspect of the several settlements, and the occupations of the settlers. With such knowledge a draft-bill might be readily framed, with reasons for each proposed enactment. When completed, it should be transmitted to Her Majesty's Secretary of State for the Colonies, with a memorial praying that it be introduced into the House of Commons under the sanction of Her Majesty's government. If this were done in a perfectly candid spirit, without an expression which could be tortured into evidence of a factious opposition to the government, I cannot avoid a hope that it would be successful; especially if it were so managed as to obtain the support of the people of every settlement. Indeed, if the measure originated at Wellington, it should not be transmitted to the colonial minister until it had been submitted to a committee in every other settlement, approved at a public meeting, and supported by numerous signatures to the memorial.
A well-constituted assembly however may be neutralized by the defective constitution or undue power of the co-ordinate branches of the legislature. In all our colonies having local legislatures, and in the several states of America, the legislatures of which are copies of ours, there exists some second body, to the decision of which every proposed law is submitted before it receives the assent of the representative of the crown. These second chambers differ considerably in their constitution even in our colonies. The simplest, and that which is attended with the least difficulty, is an executive council, appointed by the governor and endowed with legislative powers.
In the United States of America the senate is elective or representative, the only difference being that the senators must be of more mature age than the members of the lower house, and that they are elected for larger districts. But
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elective senates are supposed to be adverse to the spirit of the English Constitution; an upper house which shall operate as a check upon the supposed disposition of a popular assembly to legislate rashly or precipitately, being preferred. Hence the end which must be sought is the establishment of such a council as shall operate as a check, but not obstruct the course of legislation pursued by the representative assembly.
To preserve this safe middle course, the council chosen by the governor should be endowed with the power of amending, but not of veto-ing the measures sent it from the assembly --the responsibility of rejection being cast wholly upon the governor. In order to exhibit the practical working of this plan, it may be well to trace a bill through all its stages-- assuming all possible contingencies.
A bill sent up from the assembly is either amended by the council or it is not. If passed without amendment, it goes at once to the governor for his assent or disapproval. If he agree to the bill, it should receive his signature and become law, after promulgation by publication in the Gazette. 7 If, however, the governor disapprove of the bill, he should return it to the assembly and council for re-consideration with his reasons in writing. If the assembly and council should deem the reasons insufficient, and adhere to the original bill, they should send it again to the governor with their respective reasons. The governor may now reject or reserve it on his own responsibility, transmitting it to the colonial minister with all the reasons appended. The reason for so transmitting bills, and for a power of reservation to be used instead of rejection, I shall discuss presently.
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Where a bill is amended, or thrown out, by the council, it should be returned to the assembly with the written reasons of the council attached. The assembly either adopts the amendments or withdraws its bill, or adheres to it. In the former case there is no occasion for the bill again to go to the council; because it is in the state in which they have approved of it. It should therefore go to the governor for his assent or dissent, as already pointed out. If, however, the assembly reject the council's amendments, or any part thereof, the bill with their written reasons should be again transmitted to the council. The council would then agree with the assembly, or it would not; in either case the bill must now go to the governor, with the council's further reasons, if any, should it not agree to the assembly's rejection of its original amendments. The governor may now adopt, reject, or reserve the bill, without waiting for the perfect concurrence of the two bodies, transmitting the bill to the secretary of state for the colonies, with all the reasons and counter-reasons, in the event of rejection or reservation.
In this arrangement there is nothing in the least complex; in practice, nothing could well be more simple than its working. An absolute veto is taken away from the council, because, chosen partly from the official body, and partly from the wealthiest colonists, it will be impossible to prevent the growth of sinister interests adverse to the welfare of the people. A veto is given to the governor, to be exercised, not in council, but on his own responsibility, because he ought to be, and if properly chosen would be, free from local interests and biasses; and because measures might occasionally be passed not consistent with the general interests of the empire of which the governor is ex officio guardian.
It must be obvious, indeed, that so long as the colonial connexion exists, this power of rejection or reservation is necessary to prevent conflicts between the laws of the colony and those of the empire at large; but as it is a power not
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intended to be exercised for the benefit of a class in the colony, it should reside with the governor alone. As to its mode of exercise, some improvement in the present practice might be introduced. The governor, I have suggested, may either reject or reserve a bill, transmitting it, in either case, to the colonial secretary, with all the reasons annexed. In the case of reserved bills from the colonies, the present rule is, that they do not become law until allowed by the Crown. I would propose that a distinction be recognised between bills rejected and bills merely reserved--a distinction founded on the probability that the real objections to a reserved bill would be weaker than those applicable to a rejected bill. I suggest, therefore, that the Crown might exercise the power of allowing bills, even rejected by the governor, should Her Majesty's advisers deem the governor's reasons insufficient; but that the bill should not become law until such allowance was promulgated. In the case of bills merely reserved, I think it would be better to fix a limit--say two years--for the disallowance of the Crown; with a proviso, that at the end of that time they should become law if not so disallowed. Thus bills rejected by the governor would not become law unless allowed; bills merely reserved by the governor would become law unless disallowed. This would remedy an evil which has sometimes occurred, namely, the loss of an important bill, to which the colonial minister had no objection, merely because it had been accidentally poked into a closet, or had dropped into the waste paper basket, or had perhaps been abstracted by some opponent, and could nowhere be found. The perfect controul of the colonial minister over all bills which might be supposed to affect the general interests of the empire, would not be in the least degree abridged; all that would be obviated would be the growth of a party in the colony adverse to the interests and happiness of the great body of the people. In all our colonies there is very considerable equality of condition. Hence all the attempts
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that have been hitherto made to exalt one class above the Others, that is, to create a colonial aristocracy, have signally failed. In this country there exists a prestige in favour of an aristocracy in the minds of those least disposed to acknowledge it. In a colony antient associations have been cast off and the class forced into an elevated position by the arbitrary operation of an Act of the imperial parliament, is always regarded as a parvenue class, having no resemblance to an antient, or as it is deemed, a natural aristocracy. It is for this reason that it becomes necessary, in framing the council, not to go one step further than is necessary to secure due caution and deliberation in the making of laws; and to avoid all attempts to foster those party struggles which have existed in all those colonies where the council had an absolute veto on the acts of the lower house.
With the written reasons of the assembly, the council, and the governor before them, on every fully debated bill, the people would have the best means of judging of the conduct of their representatives, and of changing such as did not promote the public good; whilst a prudent governor would take care to remodel his council, whenever it was found factiously to amend bills which the assembly and the governor deemed conducive to the interests of the people. From the little motive which would exist for any difference between the two bodies, and the constant appeal to public opinion by submitting reasons, there seems every reason to believe that the utmost harmony would prevail. These reasons would have another good effect--they would be instructional in their character, so that the legislature would become what it ought always to be, the great political instructor of the people.
One of the greatest improvements in colonial government, is that which was proposed by Lord Durham, and which Sir Charles Bagot has the distinguished honour of having faithfully and honestly carried out in Canada. It is what has been called responsible government, and consists in choosing
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certain important ministerial officers in accordance with the views of the majority of the assembly. It is, in fact, a copy of the constitutional system in this country, by which the principal officers of the state cannot hold office unless they can command a majority of the assembly. This plan so obviously takes away so many of the difficulties of governing a colony, and imparts to a local government so strong a claim upon public confidence, that I have no doubt it will ultimately be applied to all our colonies having local legislatures. In Canada its application was a matter of extreme difficulty, for on the one hand there was a strong party which had been accustomed to wield the powers of government for its own profit and advantage; and on the other, a large popular party, more or less connected with rebellion. Yet the governor has chosen boldly and wisely; and the firmness and prudence with which he has maintained the law, for such it is, have secured him the love of the people of Canada, and the profound respect of all thinking men. The plan of a responsible cabinet is capable of being engrafted on the proposed system with great success. With a representative assembly, and a council with legislative powers, but without a veto, the new system of responsible ministerial officers would probably work better than in a colony burthened with an irresponsible council, endowed with a veto. It would promote universal contentment, and reduce the business of governing New Zealand almost to a routine.
If New Zealand had enjoyed a representative legislature, the local government never would have been permitted to incur a debt of about £100,000. in three years; and even now, the introduction of a representative assembly would remedy most of the evils which exist, and release the colonial minister from his pressing difficulties.
Farrar's Buildings, Temple,
31st December, 1842.