1866 - Busby, J. Our Colonial Empire and the Case of New Zealand - PART FIRST. OUR COLONIAL EMPIRE.

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  1866 - Busby, J. Our Colonial Empire and the Case of New Zealand - PART FIRST. OUR COLONIAL EMPIRE.
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THE Colonial Empire of Great Britain has attained to a magnitude unexampled in the history of the human race. But in this mercantile and utilitarian age, the glory of an empire upon which the sun never sets appears to have become a matter of small account. The relations of Great Britain and her colonial dependencies are measured by a money standard, and the obligations and duties of Sovereign and subject are weighed against a balance-sheet of expenditure and income. This at least would be the conclusion to be drawn from recent debates in the House of Commons, and from the discussion of colonial questions in the public journals. On the other hand, it is to be hoped that, when it becomes a question of the integrity of British dominion, the heart of the nation is sound. The proposition to allow the colonists to shift for themselves, which has been openly advocated, appears to have found but little favour. Even those who consider that Free-trade has so altered the relations of the colonies to the mother country, that the fewer political relations they have to each other the better for both, would not renounce the duty of protection when a case should arise involving the honour of the Crown. The great Free-trader himself, 1 whose recent death called forth the regrets of the nation, while maintaining, in a conversation which occurred shortly before that event, that it would be better both for the colonies and the mother country that all political relations between them should cease, still declared that England could not abandon Canada while threatened by the United States, or New Zealand, while the settlers were in danger from the Maories.

In all ages of the world the tenacity of dominion once acquired, has shown that the instinct of national preservation is akin to the instinct of self-preservation in the individual; that the loss of a member of the body-politic cannot but weaken what remains, as the amputation of a limb deprives the natural body of its pristine efficiency. The prestige of national power is destroyed, and aggression invited by the weakness which permits of the loss of dominion, and the preservation of the

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integrity of its dominions has consequently been the first care of the Government in every State of which history has handed down the transactions. Our latest accounts of a struggle for national existence refer to one that occurred in a country in which, of all others, the ties that bound its provinces together were the weakest. One of the most difficult questions which a jurist ever had to decide is the question whether the right of the separate, and, in all matters of internal government, independent States of the American Union to dissolve the ties which bound them together; or the right of the majority of the States to compel the minority to abide by the Union, was the stronger. The ultima ratio which settled the question of power by no means decided the question of right. But it illustrated in the most remarkable manner of which we have any example the tenacity of dominion once possessed. It is impossible that British statesmen can be insensible to these considerations; the prevalent delusion appears to arise from a defective appreciation of the necessary obligations which are inseparable from the relations of Sovereign and subject.

Nevertheless the true glory of Great Britain's mission as a colonising power is little appreciated. To cover the face of the world with cities; to make the waste places of the earth to blossom like the rose; to introduce law, civilisation, and religion, with commerce and the arts of social life, into regions where heretofore roamed the ruthless and brutal savage--these are the attributes of power and dominion which Britons should regard with pride and maintain with jealousy. They are something more than the power and wealth represented by "ships, colonies, and commerce," the desire of the First Napoleon. They are a Divine legation. They are the fulfilment of prophecy: "God shall enlarge Japhet, and he shall dwell in the tents of Shem, and Canaan shall be his servant." Would that our statesmen could be brought to appreciate more justly the powers they are privileged to administer, and the responsibilities which are inseparable from the administration of those powers; to accept the labour of maintaining British institutions and British law throughout the Queen's dominions, for the protection alike of the industrious colonists and the ignorant aborigines--a labour which would be found to be light, and a duty which would be simple, if faithfully administered.

It is the object of the present work to investigate the nature and progress of that misgovernment which has brought some of the colonies into a state of disorganisation and anarchy, that

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threatens, if not the absolute disruption of the empire, a result still more deplorable--the maintenance of a dominion which has become nominal, in so far as it has abandoned all effective control over the most flagrant abuses, but has made itself effective in supporting subordinate authorities in violating the law and betraying the trusts of Government. An experience of upwards of forty years of colonial life has convinced the writer that the complications in colonial affairs which have led to rebellion in the colonies, and have entailed such heavy charges on the British Treasury--which have disgusted British statesmen with colonial questions, and made their discussion the readiest means of emptying the benches of the House of Commons, are not a necessary result of distant dominion, or of delegated and divided authority, but are traceable to a mistaken liberality on the part of the Colonial Department in the toleration of local abuses, and in a departure from the true principles of British administration, by a too ready concession to pretentious theories, at the expense of right.

It is to an examination of the proofs of this conclusion, to which his own experience has brought him, that the writer invites attention: not, however, as a mere theoretical proposition, but as a demonstration of the necessity of returning to the true principles of colonial administration in order to the maintenance of the integrity of the empire; as well as in immediate reference to an opportunity of putting to the proof, the advantage of returning to that system of colonial government of which the experience of two centuries had proved the efficiency, before the mischievous innovations of the last thirty years were heard of. The case referred to is that of the Province of Auckland, which has suffered more from the effects of empirical experiments in government than any other province of the empire, and the inhabitants of which have almost to a man united in laying their petition at the foot of the Throne for the restoration of their rights as British colonists. A short time before the dissolution of the last Parliament a petition was received at the Colonial Office from the Provincial Council of the Province of Auckland, the northernmost of the New Zealand Colonies, praying that that colony may have a separate Government and Legislature. This petition was transmitted by Governor Sir George Grey, who states in his despatch (dated Auckland, January 5, 1865):--

"I only received this petition yesterday, and therefore fear I shall not by this mail have time to make a full report upon the important question raised in it;

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by the next mail I will, however, transmit such a report; and in the meantime I will only say that I think, unless some such arrangement as is prayed for by the Provincial Council of Auckland is carried out, it will be impossible to bring to a satisfactory termination the difficulties prevailing In this country." 2

The Provincial Council of Auckland had petitioned the Queen and both Houses of Parliament for the same object in 1853, 1855, 1858, and 1862.

On the 7th February Sir George Grey transmitted two further petitions, one of these petitions being signed by all the Northern members of the Legislative Council, and of the House of Representatives, with the exception of three of the latter who were not in Auckland, but who, having "supported the separation movement" in the House of Assembly in the previous December, it was concluded, would have signed it if in their power--two of them having, indeed, actually requested another member to sign in their behalf.

The other petition is from "the inhabitants of the Province of Auckland." "This petition," says Sir George Grey, "has already received 7920 signatures, whilst the signatures from the out-settlements have not yet been received;" the population of the Province of Auckland amounting to about 40,000 colonists, and about as many-aboriginal natives, being nearly four-fifths of the Maori race. The petition of the Northern members of the General Legislature states--

"That the Constitution granted to the colony by the New Zealand Constitution Act appears to your petitioners to have been framed in forgetfulness of the large native tribes within the dominions to which it was intended to apply.

"That the members of the General Assembly, by an unanimous vote in both Houses, have recently. recorded their conviction that the joint responsibility of Governor and Ministers has resulted in divided councils, which have been productive of great evils to both races of your Majesty's subjects in this colony, and have entailed heavy and unnecessary expenditure both upon Great Britain and New Zealand." 3

The "responsible Ministry" of New Zealand, on the appearance of this petition, requested the Governor "to reserve his remarks upon it until he should first have received those which they wished to make."

Certain Auckland colonists who happened to be in London when these petitions were transmitted were requested to form

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themselves into a Committee for the purpose of forwarding the objects of them. They accordingly addressed themselves to the Secretary of State for the Colonies, who informed them, in reply to their first communication, that he had not received the report which was promised by Sir George Grey, but who ultimately caused the following letter to be addressed to their chairman:--

"Downing Street, July 31, 1865.
"To W. S. Grahame, Esq.

"Sir, --I am directed by Mr. Secretary Cardwell to acknowledge the receipt of the letter which you addressed to him on the 24th inst, as chairman of the London Committee of the Northern Association of New Zealand.

"I am to inform you in answer that Mr. Cardwell cannot hold out any hopes to the Committee that Her Majesty's Government will oppose itself to the policy of the present Ministry of New Zealand, either by delaying the withdrawal of the regular troops, or by taking steps for the separation of that Colony into two or more distinct Governments. --I am, &c., (Signed) "FREDERIC ROGERS."

No report from Sir George Grey on the subject of the above petitions, or remarks of the Ministry upon them, have as yet appeared in any papers laid before Parliament, beyond a reference to the petition of the Provincial Council in the following words:-- "Ministers are of opinion that the division of New Zealand into two or three separate colonies would dwarf the political intellect of the colony, confining it to the consideration of narrow and personal interests." Another Southern politician, of whom it is only justice to say that he has shown himself more straightforward in his aims and more disinterested in his conduct than the rest, is reported to have thus expressed himself at a public meeting at Canterbury:--

"Mr. Fitzgerald objected to separation, because he thought, looking at the history of all these colonies, that the tendency of this measure would be to lower and degrade it--that it was inevitable. This very native question, placed before them as it was, full of difficult and appalling danger, which they all shared and all felt in the Middle Island just as they did in the North--this very question, because of its difficulty, would raise and elevate the whole character of the statesmen of this country. When they were asked to cut up the colony into two divisions, they were asked to stunt and dwarf their position. It ought to be a glory to them that they had a question to deal with given to no other colony; and he would tell them that that question alone would produce the greatest men of the Southern Seas. They were asked to extend their minds in order to master that difficulty, and beyond the mere views which usually fell to the lot of other colonists. They were asked, and they alone, of all colonists in the Pacific, to deal with questions requiring comprehensive views and states-

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manship, and yet they were asked at that moment to abandon that vantage ground, and retire from the platform which offered them the career of statesmen--and to be content with the character of vestrymen. He must tell them the greatness of the sphere of Government and the magnitude of the population upon which they ruled--those were the instincts of a great people. No people ever made itself small unless they bad small minds that could not comprehend the importance of great communities. It might be said that the two islands had two different institutions. He admitted it; and the same might be said of the seven kingdoms of the Heptarchy until joined in one."

With one exception, the local politicians into whose hands the affairs of the colonists have fallen are men whose families and interests are beyond the reach of any danger from the Maories; and they are unquestionably in a position to take a more philosophic view of the state of New Zealand than those whose homes have been desolated by Maori warfare. But the colonists of the Auckland Province having the best grounds for knowing that to the attempts at statesmanship of the Southern politicians they are indebted for the war in which they have suffered so much, as well as for the enormous taxation and debt which threatens the extinction of their property, may be excused if they are unwilling to be any longer the victims of the aspirations of such statesmen to become "the greatest men of the Southern Seas."

The prayer of the petitioners to have the management of their own affairs without the interference of persons who have little knowledge of them, and less interest m them, but who have interests which may be served by a sacrifice of their interests, is too reasonable a prayer to be answered by the expression of Mr. Cardwell's intention not to oppose the policy of the present Ministry.

It is the professed policy of the British Government to allow colonists to manage their own affairs. But it is an utter mockery to place a community under the sway of an Assembly, a majority of the members of which have no interests in common with those of that community; and this is true of each of the six colonies which were planted in New Zealand. No colony, which was ever planted in ancient or modern time, was ever more distinct from all other colonies than is each of the six colonies of New Zealand from all the rest; and, at the time when the present Constitution was framed, the smallest of them was capable of maintaining liberally a Government suitable to its circumstances, if administered according to the precedents afforded by the Constitutions of the American Colonies, the efficiency of

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which was proved by the experience of two centuries. The creation of what is called a general Government and Legislature to overrule the local Legislatures is altogether unprecedented. The plea that, by giving to each colony the management of its own affairs the political intellect of the colonists would be dwarfed, is not only a vain but a false pretence, indicating only the ideas which such a complicated machinery of Government is calculated to generate, that communities exist for the purpose of allowing politicians a platform for the display of what they suppose to be statesmanship. There was no federation of the American Colonies until their separation from the mother country. Till that epoch each colony conducted its own affairs, under the sovereignty of the mother country, without any connection with the rest. But when their separation from the mother country made it necessary to provide for the foreign relations which belong to an independent State, relations which a dependency are incompetent to hold, there was no want of political intellect to cope with the new and difficult circumstances in which those colonies were placed. There is no greater monument of political wisdom than the Constitution under which those States were united for the management of sovereign relations with foreign countries, while each State retained the independent management of its own internal affairs. The Province of Rhode Island, when its first charter was granted, was not larger than the county of Eden, in the Province of Auckland, but, without enlarging its borders, it has retained till this day the independent government of its local affairs, and it is not a little remarkable that all the original colonies became, and continued. States of the Union, with no alteration in their boundaries, and with but little alteration in their political and social institutions, from the date of their first formation.

When, therefore, the progress of events shall make it expedient to separate the Colonies of New Zealand from the mother country, there is little danger of the colonists being destitute of the political intelligence and knowledge necessary to enable them to provide for the sovereign functions which belong to an independent State. Until that aera shall arrive, a general Government and Legislature can have no legitimate functions, but can only exist by usurping the functions which can belong exclusively to a sovereign power, or by encroaching on the rights of their fellow-colonists. To what an extent the general Government and Legislature of New Zealand have done both will be made manifest in the subse-

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quent pages of this work, as well as the injustice of charging upon the colonists of Auckland the expenses of a war which would never have occurred if their petitions to be delivered from the domination of Southern politicians, and to be governed by the free customs of their ancestors, as maintained in the free settlements of America, had received from the Home Government the attention to which they were entitled.

There are three colonies in the West Indies, each of which have enjoyed a separate Legislature and Government according to the model of British institutions for upwards of a century, the united population's of which, including negroes and men of colour, do not exceed in number the population of the Province of Auckland. The islands of the West Indies enjoy a facility of communication with each other which is unknown to the provinces of New Zealand, and consequently might be governed in groups or under a federation with much more advantage than those provinces. But, except in one most instructive instance, no such federation has been thought of. The instance in question was that of the Leeward Islands, where a voluntary federation was formed, by which five representatives from each island were formed into "a General Assembly to make general laws." But during the period of ninety-three years--from 1705 to 1798--this Assembly only enacted one law. "The different Legislative Assemblies of the various islands being in full operation," 4 it was found that there were no interests of a general character for which such an Assembly was capable of legislating. And, after having had a nominal existence for 160 years, that existence finally ceased in 1832. The genius of Mr. Gibbon Wakefield had not then pointed out the colonies as a platform for the performances of statesmen.

There was also a federal union, for a time, of four of the New England Colonies for the exclusive purpose of defence against a common danger. Story, in his Commentaries, tells us that the Government of England acquiesced in this as being unable to defend them. It was the stormy period of the reign of Charles I. And Haliburton, in his History of Nova Scotia, informs us that this union procured them great respect from their French, Dutch, and Indian neighbours, but (in 1683) as soon as the danger which united them was at an end the union was dissolved.

There was another Act of Union, which is worthy of notice as exhibiting, on a limited scale, the mischiefs arising from

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separate communities interfering with each other's local affairs:--

"After Penn had become proprietor of Pennsylvania, he purchased of the Duke of York, in 1662, all his right and interest in the territory afterwards called the Three Lower Counties of Delaware.

"In the same year, with the consent of the people, an Act of Union with the Province of Pennsylvania was passed, and an Act of Settlement of the frame of government, in a General Assembly, composed of Deputies from the counties of Delaware and Pennsylvania. By this Act the three counties were, under the name of "The Territories," annexed to the province, and were to be represented in the General Assembly, governed by the same laws, and to enjoy the same privileges as the inhabitants of Pennsylvania.

"Difficulties soon afterwards arose between the Deputies of the province and those of the territories; and, after various subordinate arrangements, a final separation took place between them, with the consent of the proprietary, in 1703, From that period, down to the American Revolution, the territories were governed by a separate Legislature of their own."--Story's Commentaries on the Constitutions of the United States, p. 86.

A federation of dependencies, with a general Government and Legislature, with jurisdiction overriding the powers of the separate local Legislatures, is not less a novelty than it is an anomaly in colonial polity. The General Assembly of the Leeward Islands possessed no such jurisdiction, and, not possessing it, they found no subjects of legislation. In all confederacies of ancient or modern times (that of the New Zealand Colonies excepted) the objects sought have been objects external to the members of the confederation; in other words, a united exercise of the functions of sovereignty in relation to foreign countries, which each possessed independently of the rest in its own internal concerns. But a dependency ca have no foreign relations. "It can make no treaty, declare no war, send no ambassadors, regulate no intercourse or commerce, nor in any other shape act as Sovereigns in the negotiations usual between independent States." 5 And the same is true of a federation of dependencies.

Leaving for the present the case of the petitions from the Colony of Auckland, let us give attention to some views of the constitutional relations of British colonies to the mother country, which necessarily spring out of the fundamental laws of the British Empire, as well as out of the reciprocal rights

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and duties of Sovereign and subject, but which appear during the last thirty years to have been gradually lost sight of.

In his address to the electors of the city of Oxford, Mr. Cardwell, the present Colonial Minister, is reported to have expressed himself in the following words:--

"It has been the policy, and I doubt not it will be more and more the policy, of this country to apply to the distant possessions of the Crown the liberal principles on which we act at home, to encourage in the colonies the spirit of self-reliance, to develope local energy and resource, and to confide in the loyalty of the colonists and their attachment to British institutions for the maintenance of those bonds which unite, under the British Crown, so many powerful and prosperous communities in every quarter of the globe."

It is proposed to test this policy by the results of its operation during the last thirty years--to show what is the nature of those "liberal principles" which have been applied to the Colonies, and have led to a gradual abdication of the functions of government, and a renunciation of the duties of sovereignty, until the Queen's subjects in her colonial possessions have been deprived of those safeguards to life, liberty, and property, which are their birth-right, and placed in subjection to an oligarchy who have been allowed to usurp a power which is inconsistent with their allegiance to the Crown, and which, not to speak of even greater evils, has overwhelmed the colonists with taxation and debt.

It is proposed to demonstrate the following propositions:--

1. That under one dominion there can be only one sovereign power, to which all other powers and authorities must necessarily be subordinate and responsible.

2. That this sovereign power owes protection to every member of its empire, however mean or remote.

3. That the laws of England will protect the colonial subjects of the Crown in the enjoyment of the rights and privileges which are secured to all Her Majesty's subjects by the fundamental laws of the empire, and that the Superior Courts of England will afford them redress from wrongs inflicted upon them by illegal authority, whether legislative or administrative, in the colonies.

4. That the Constitutions of colonies of British settlement, as embodied in Acts of the Imperial Parliament, are founded upon these principles, restricting the powers of the subordinate Legislatures of the colonies within the limits which are compatible with the sovereignty of the mother country and with the rights of each member of the empire.

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5. That the commissions and instructions to the Queen's governors are founded upon the same principles, conveying a delegation of certain portions of the Queen's authority, and containing no recognition of any power in the colonies to control the administrative acts of the governors so far as they are in accordance with law.

6. That there, nevertheless, has arisen in some of the colonies of the empire "a system called Responsible Government," which is absolutely incompatible with the obligations and duties of sovereignty, as well as with the provisions of the Constitution Acts of those colonies, and with the express instructions given by the Queen for the guidance of her colonial governors in the performance of their duties, which system the Queen's Secretary of State has in several instances formally recognised, and, in one instance, declared to be unequivocally established.

7. That, in the instance of New Zealand, the rebellions of the Maories, and the troubles which have afflicted the colonists settled in that country, may be traced, in part to the lax administration of the Colonial Office, in not maintaining the fundamental laws of the empire on which the integrity of British dominion depends; and in allowing the governors of the colonies settled in those islands to abdicate their proper functions, in favour of persons who have no legal authority to discharge them: and in part to an anomalous constitution of government, which has no precedent in colonial administration; but which was suggested by untrustworthy persons, as adapted to the accomplishment of their own ambitious and selfish projects.

In the ordinary language of the day those parts of the British dominions which lie beyond the confines of Great Britain and Ireland have come to be spoken of as if their relations to the empire were of a different character from those of the British Islands, the centre of the British dominion; as if colonies of British settlement were not integral portions of the empire, but attached to it by some unexplained relations which entitle them to what are called "the privileges of self-government," and which restrain the interference of the sovereign authority in all matters which do not involve what are called Imperial interests. What are Imperial interests, in contradistinction to interests which are not Imperial, has never yet been shown.

In days gone by our colonial settlements were looked upon exclusively as a means of promoting the wealth of the mother country, with which the Navigation Laws bound them to an

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exclusive trade. They had no liberty to sell their products or to purchase their requirements elsewhere than in the mother country. The trade with the colonies was a close monopoly. The colonists could neither purchase in the cheapest markets nor sell in the dearest. "The necessity of preventing the trade of the plantations from getting into foreign channels" was deemed a paramount principle of British policy, in support of which it was considered indispensable to array the naval and military force of the empire.

In such a state of things the words "Imperial interests" had a definite meaning about which there could be no misunderstanding. It was a settled principle that the mother country was entitled to all the profit she could derive by restricting the trade of the colonists; that colonial interests being separate from, if not antagonistic to, those of the mother country, the lesser interests must be subservient to the greater. Such a state of things has happily passed away. More enlightened views prevail with regard to the reciprocal benefits of Free-trade between distant countries. And it is now well understood that the interests of all are best promoted by allowing each individual and each community to pursue their own interests in their own way; at the same time that the unrestricted intercourse of Free-trade has, above all other means, tended to bind together distant countries in terms of friendship.

These considerations apply alike to colonial possessions and to foreign countries. But the colonial settlements of Great Britain have other ties upon the mother country than those of mutual gain and the good-will which springs from reciprocal benefits. The duties of sovereignty are not to be laid aside because the sovereign power has ceased to sacrifice the interests of the colonies to those of the mother country. The duty of protection remains in full force, and is inseparable from the relation of Sovereign and subject. This is a point of view from which colonial relations are seldom or ever regarded by politicians who take part in the discussion of colonial questions. The rights of colonists as members of the empire, entitled by their birth-right to the same privileges as their fellow-subjects at home, are treated as if they involved no obligations upon the mother country. To persons who are versed in public law it is unnecessary to adduce the authority of jurists for doctrines which require only to be stated in order to command their assent. But in view of the ideas which are constantly promulgated in relation to British colonists, it seems necessary to state, in the words of a writer whose authority is universally admitted,

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the principles upon which the relations of Sovereign and subject are based, and the reciprocal rights and obligations which spring from those relations.

The principal obligations and duties of sovereignty, so far as they apply to our present subject, are laid down by Vattel in his treatise on the Law of Nature and Nations in the following passages:--

"Every true sovereignty is in its own nature unalienable.

"When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment or mother country, naturally becomes part of the State equally with its ancient possessions.

"The whole of the countries possessed by a nation and subject to its laws, forms, as we have already said, its territory, and is the common country of all the individuals of the nation.

"If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members. The nation owes this to itself, since the loss even of one of its members weakens it, and is injurious to its preservation. It owes this also to the members in particular, in consequence of the very act of association; for those who compose a nation are united for their defence and common advantage; and none can justly be deprived of this union, and of the advantages he expects to derive from it, while he on his side fulfils the conditions.

"The body of a nation cannot, then, abandon a province, a town, or even a single individual who is part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on public safety.

"The Constitution and laws of a State are the basis of the public tranquillity, the firmest support of political authority, and a security for the liberty of the citizens. But this Constitution is a vain phantom, and the best laws are useless if they be not religiously observed. It is very uncommon to see the laws and Constitution of a State openly and boldly opposed; it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men; they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked.

"To attack the Constitution of the State, and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are entrusted. The nation ought constantly to repress them with its utmost vigour and vigilance as the importance of the case requires."

But the law of England is not less explicit than the abstract conclusions of the jurist. The rights of a British subject are not affected by his removal to the most distant settlement of

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British subjects over which the Queen's dominion extends. He is there, as much as in England, entitled to the protection of the fundamental laws of the realm, by which the rights of life, liberty, and property are secured, and the powers of the executive Government limited and defined.

In most colonial Constitutions or charters of Government the power of making laws is restricted by the proviso "that such laws shall not be repugnant to the law of England." But even in cases where there is no such proviso the Superior Courts have always held, on appeals from the colonies, the invalidity of any colonial law which conflicts with the fundamental laws of the realm. This principle was laid down as of universal application by Lord Mansfield in the House of Lords in the year 1766, and it has been adhered to in all subsequent decisions of the Superior Courts of England. It is a necessary attribute of sovereignty. Subordinate Legislatures are essentially different from a Supreme Legislature. They have no original or independent authority. Their powers are derivative, and are limited to the objects of local regulation, for which they are created. They may make laws praeter but not contra to the laws of the realm. They cannot withdraw the subject from his allegiance, or come between the subject and the protection which is due to him from the sovereign power. These conditions necessarily spring from the very essence of sovereignty There can be no imperium in imperio. The national laws are the voice of the supreme power of the State, which cannot be delegated, which ceases to exist when it ceases to be paramount. To this all subordinate authorities must of necessity be subject, otherwise they cease to be subordinate authorities, and the kingdom is divided against itself.

The duties of Sovereign and subject, of protection and allegiance, have in all ages been held to be reciprocal. 6 The propositions which have been quoted from Vattel are not less deductions from universal history than necessary conclusions from indisputable principles. The meanest Roman citizen was entitled to appeal unto Caesar from every subordinate jurisdiction, and to have his appeal allowed.

In savage tribes each individual depends for protection on his own arm, and resents in person the wrongs he has suffered; but where a Government is established each subject of that Government instinctively looks to it for protection, in return for the natural liberty which he relinquishes. When a country

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is so far advanced in civilisation as to be governed by laws, each citizen is aware that the laws are intended for his protection as well as for his control, and he is entitled to look to the magistrate to procure him justice as defined by the laws which it is the duty of the magistrate to administer. This right of protection accompanies the citizen into foreign countries, and it is the duty of the sovereign power to secure to each of its subjects the protection of such laws as are in force in the countries where they may respectively sojourn, or which natural justice requires, in those countries where the will of the Sovereign is law. So well is this right, and the corresponding duty understood that the whole nation is stirred when any of its citizens are subjected to violence or wrong in a foreign country; even in cases where relief is absolutely impracticable, as in that of the British officers who were some years ago imprisoned, and finally murdered at Bokhara; or in the more recent case of the British Consul and missionaries in Abyssinia, where its enforcement would be most difficult. Indifference in such cases could not fail to invite aggression, and true wisdom requires that no proved oppression should be passed over without adequate compensation being exacted. A recent instance of this was the exaction of a heavy fine from the Government of Japan for the murder of two British subjects in that country. If this be the case in foreign countries, a fortiori is protection due to British subjects in a British province where oppression, if it occur, must be the act of some person or persons to whom a certain authority is delegated, the extent and exercise of which are defined by law, or by instructions having the force of law.

But within the last thirty years a different theory has been tacitly assumed and acted upon. It appears in practice that the Queen's colonial subjects who have got representative institutions are to be subject to the local authorities even when their action is illegal, and are to have no appeal to their Sovereign for redress of injuries if committed by an abuse of the powers delegated to subordinate authorities.

It is true that there is no authority or justification for such a practice to be found in any Act of Parliament giving a Constitution of local government to a settlement of British subjects, or in any instructions to a colonial governor founded upon such Acts of Parliament; such an authority would be equivalent to a transfer of the allegiance of British colonists from the Queen to the local authorities.

But it has nevertheless been gradually assuming shape and consistency, till it is to be found openly avowed in despatches,

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and it has become a matter of course to condone or allow illegal statutes, and to permit the Queen's governor to make the will of a majority the rule of his conduct, howsoever at variance with the law or the Queen's commission and instructions. The beginnings of this change have been in part told by Sir Francis Head. The concessions made by the Government to the Assembly of Lower Canada, which were quite unexampled in their liberality, having failed to disarm the hostility of the Democratic leaders, the rebellion ensued, and, the Constitution being suspended, Lord Durham was sent out to that colony as Governor-General and High Commissioner, with special instructions and powers. He was accompanied by two persons whose Democratic tendencies might be the result of their forfeiture of the moral status, the loss of which so often drives the party politician to extreme views. So notoriously was this the case, that Lord Wicklow in the House of Lords called the attention of the Prime Minister to the fact.

On Lord Durham's return to England, deeply offended because it had been necessary for the Imperial Parliament to pass an Act of indemnity to relieve him and other persons acting with and under him from the consequences of an illegal ordinance, he published a "posthumous report," which, says Sir Francis Head, "the Imperial Parliament, under the protest of the late Duke of Wellington, determined to adopt or swallow as the basis of a new system of legislation for the Canadas and for the rest of our American Colonies, although they well knew that a considerable portion of it had been written by two persons who had been convicted by the tribunals of England of offences of an unusual character. Indeed, that not only had one of them, as a felon, been sentenced to imprisonment in Newgate for three years, but that on the 6th of June, 1827 (see Hansard), Sir Robert Peel in the House of Commons, in denouncing the fraud, the forgery, and the villany he had practised, added:--'Hundreds of delinquents much less guilty had been convicted of capital offences, and had forfeited their lives'" "The allegations against the loyalists in Upper Canada contained in that 'report,' signed by Lord Durham, were declared by three Lieutenant-Governors and the Legislature of Canada to be untrue, and utterly unsafe to be relied on." But while "the Canadian loyalists were treated with marked neglect, the leaders of the rebellion, men for whose apprehension large rewards were offered, were promoted to the most honourable appointments in the colony."

It did not require much communication with the late Sir

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James Stephen to become aware that he considered it a folly to attempt to govern distant colonies from England; and that the perplexities occasioned by the attempt to do so could only be avoided by leaving them to govern themselves. In a despatch dated from Toronto, 19th December, 1837, Sir Francis Head, then Lieutenant-Governor of Upper Canada, thus addresses the Secretary of State:--

"My Lord, --It has long been notorious to every British subject in the Canadas that your lordship's Under-Secretary, the author of our colonial despatches, is a rank Republican. His sentiments, his conduct, and bis political character, are here alike detested, and I enclose to your lordship Mr. M'Kenzie's last newspaper, which, traitorous as it is, contains nothing more conducive to treason than the extracts which, as its texts, it exultingly quotes from the published opinions of Her Majesty's Under-Secretary of State for the Colonies.

"As I entertain no sentiments of animosity against Mr. Stephen, it has been with very great reluctance that I have mentioned his name; but being deeply sensible that this province has been signally protected by an Omnipotent Providence during the late unnatural rebellion, I feel it my duty, in retiring from this Continent, to divulge, through your lordship, to my Sovereign my opinion of the latent cause of our unfortunate misgovernment of the Canadas. --I have, &c., (Signed) "F. B. HEAD."

"This plain statement to the Queen by her Lieutenant-Governor was corroborated by the following official documents, addressed to Her Majesty by the two other branches of the Canadian Parliament:--

"Extract of a Report, dated February 8, 1838, of a Select Committee of the Commons' House of Assembly, on the political state of the Provinces of Upper and Lower Canada. Printed by order of the House, with an address to the Queen.

"In the year 1828, James Stephen, Esquire, then Counsel, and since advanced to the office of Under-Secretary of State to the Colonial Department, in his evidence before the Select Committee of the House of Commons on the affairs of Canada, advanced the following opinions with reference to these provinces:--

"The ties by which the people are bound to their Sovereign are not of the same strong and enduring character as the corresponding obligations between the King and the people of the old European States. It is impossible to suppose the Canadians dread your power: it is not easy to believe that the abstract duty of loyalty, as distinguished from the sentiment of loyalty, can be very strongly felt. The right of rejecting European dominion has been so often asserted in North and South America, that revolt can scarcely be esteemed in those Continents as criminal or disgraceful. Neither does it seem to me that the sense of national pride and importance is in your favour. It cannot be regarded as an enviable distinction to remain the only dependent portion of the New World.

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"Your committee pretend not to say that any individual was influenced by the use made of Mr. Stephen's opinions--they hope otherwise; but they well know that their promulgation has excited a deep feeling of regret in the mind of a very numerous and respectable class of the learned gentlemen's fellow subjects in these provinces, and has led many to consider whether past mal-administration of our affairs may not fairly be attributable to the influence necessarily exercised by a person holding his highly responsible and confidential situation in Downing-street; and if so, whether that influence can be continued without danger to our future prosperity.

"In a report and address to the Queen, dated Feb. 28, 1838, from the Honourable the Legislative Council of Upper Canada, and printed by order of the House, it is stated that 'in this declaration (of Mr. Under-Secretary Stephen) the positions are advanced that allegiance to the British Crown must be expected to be regarded in Canada rather as a sentiment than a duty; that no fear of the power of Great Britain can reasonably be entertained by its inhabitants; that revolt against European dominion cannot be considered anywhere upon the Continent of America as criminal or disgraceful, and that it can be regarded as no enviable distinction to he the only dependent portion of the New World.' But the Legislative Council state that 'it is fit the British nation should know that the feelings and consciences of the great mass of the people of Upper Canada revolt against these sentiments.' It is stated by Sir F. B. Head that the last words quoted in italics were placarded by Mr, Mackenzie on the day of his insurrection in Upper Canada."

It may be doubted whether Sir. Tames Stephen's sentiments of duty were sufficiently lively to induce him to postpone his literary labours for the drudgery of investigating colonial complaints. It was easier to give way to the pressure of colonial politicians than to incur their hostility by maintaining and enforcing law and right. To allow colonists "to manage their own affairs, and to settle their differences amongst themselves," was an easy way of evading troublesome questions, while it had a specious air of "liberality" which was sure to obtain the applause of public writers who adopt the cant terms of the day, and can see no merit in administration which recognises duty as a more cogent motive of conduct than a regard to what such writers choose to designate public opinion. It is certain, however, that the mantle of Sir James Stephen has fallen upon his successors in the Colonial Department of the State, and that his spirit has continued to rule in their deliberations.

It is not easy to conceive a higher or more sacred trust than that which is reposed in the Secretary of State for the British Colonies. Nearly six millions of his fellow-subjects are dependent upon his vigilance and faithfulness for the maintenance of those laws which protect their dearest privileges and rights.

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Colonists have no representatives in the British Parliament who feel bound to protect their rights from that sense of obligation which members feel to those who elected them. Nor are they so connected with any department of the State, or with the Bar, the Army, or the Navy, as to obtain that sympathy and support which members of those several bodies are sure to receive from the esprit de corps which exists amongst them. From the aggressions of foreign enemies the State has always maintained its readiness to protect them, but it has ignored, if not absolutely repudiated, the obligation to protect them from the oppressions and injuries to which colonists are liable from the abuse of power delegated to local authorities; although this may be the occasion of injuries as extensive and probably more lasting than any which a foreign enemy would be likely to inflict. To this extent is the doctrine of Sir James Stephen carried, on the alleged grounds that it is impossible for the Home Government to do justice to cases occurring at the distance of half the globe, and that colonists to whom representative institutions have been granted are entitled, as they are best qualified, to manage their own affairs. It must be admitted that no doctrine has ever received from the press and public of England more general acceptance. And yet it is not difficult to demonstrate that no doctrine could be more entirely fallacious. The proper objects of government are the peace and well-being of the community, and these objects can only be obtained by institutions founded in truth and justice, and by strict adherence to truth and justice in all departments of the public service.

As regards the colonial settlements of Great Britain, the problem is to secure to British subjects who are settled therein the privileges to which they are entitled as members of the British empire. In their political relations to the mother country colonies of British settlement differ from the ancient Greek Colonies, which ceased to owe to the mother State any allegiance, or to be entitled from it to any protection, from the day the adventurers quitted the shores of Greece to search out and occupy a less crowded country. They differ also from the Coloniae and Municipia of the Romans, most of these having been rather military settlements in a conquered country, of which most of the inhabitants were not entitled to the privileges of citizenship, than voluntary associations of citizens seeking in the unoccupied lands of a distant country a better return for labour and capital than could be obtained at home.

Unlike the Greeks, British colonists cannot divest themselves

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of their allegiance to their Sovereign, nor do they become the less members of the empire, or less entitled to all the privileges which belong to members of the empire, than before they quitted their native country. These privileges are their birthright and are defined by law.

When the Romans established municipalities in conquered provinces, and gave to the inhabitants the privileges of Roman citizenship, they neither abdicated the functions of sovereignty nor divested the citizens of their right of protection from the abuse of local authority. When the Empire was in its vigour the words Civis Romanus sum (I am a Roman citizen) were a sufficient protection as well from the abuse of delegated authority as from foreign aggression. When this ceased to be the case the Empire was verging to its fall.

Nor were the obligations of sovereignty held less sacred by the Sovereign of England before the fatal admission of such counsels as those of Sir James Stephen and Mr. Gibbon Wakefield, and their adoption by the Colonial Department. In a despatch from Lord Glenelg to Sir F. B. Head on his appointment to the Government of Upper Canada, dated 5th December, 1835, the following passage is to be found:--

"Until the last session of the Provincial Parliament, though with occasional remonstrances, it may be affirmed that generally there subsisted a spirit of amicable co-operation between the Executive Government and the Legislature. Their remonstrances were the first indication of any grounds of complaint, and therefore the Queen's Ministers cannot be charged with indifference. My predecessor, the Earl of Ripon, in his despatch of the 8th November, 1832, to Sir J. Colborne, was commanded by the King to state that 'there was no CLASS OF THE CANADIAN PEOPLE, NOR ANY INDIVIDUAL AMONGST THEM, TO WHOSE PETITIONS HIS MAJESTY DID NOT REQUIRE THAT THE MOST EXACT AND RESPECTFUL ATTENTION SHOULD BE GIVEN.'"

This was the true spirit of sovereignty; and those who had access to the despatches to the Governors of the Australian Colonies in their early days, are well aware that those despatches were pervaded by the same spirit. The affairs of the Canadas were investigated with the utmost care by a Committee of the House of Commons in 1828, and subsequently by Commissioners sent from England to investigate their alleged grievances on the spot. Nothing could exceed the paternal regard for the general and Individual wishes of the colonists which the instructions to those Commissioners evinced. It was stated that "every class of the King's subjects has an equal title to invoke

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the aid of His Majesty's prerogative, either for their protection or their benefit."

The recommendations of the Committee of the House of Commons on Canada were received with the highest satisfaction by the Colonial Houses of Assembly. In an address from the House of Assembly of Lower Canada, in relation thereto, the following passage occurs:--

"The charges and well-founded complaints of the Canadians before that august Senate were referred to a Committee of the House of Commons, indicated by the Colonial Minister, that Committee exhibiting a striking combination of talent and patriotism, uniting a general knowledge of public and constitutional law to a particular acquaintance with the state of both the Canadas, formally applauded almost all the reforms which the Canadian people and their representatives demanded and still demand. After a solemn investigation, after deep and prolonged deliberation, the Committee made a report, an imperishable monument of their justice and profound wisdom, an authentic testimonial of the reality of our grievances and of the justice of our complaints, faithfully interpreting our wishes and our wants. Through this report, so honourable to its authors, His Majesty's Government has become better than ever acquainted with the true situation of their province, and can better than ever remedy existing grievances."

In reference to this address, and to the recommendations of the Committee, of which it so highly approves. Lord Aberdeen uses the following language:--

"On a review of all the subsequent correspondence, Lord Aberdeen finds himself entitled to state that, in conformity with the express injunctions and the paternal wishes of the King, His Majesty's confidential advisers have carried into complete effect every suggestion offered for their guidance by the Committee of the House of Commons."

The condition of Lower Canada differs in the most essential particulars from other provinces of British dominion. Originally a conquest from the French, its population at the time this address was issued consisted of four colonists of French to one of British blood. For many years after the Conquest they sat contented with the beneficent treatment they met with from the British Government, which guaranteed their rights of property, and respected their laws, and customs, and religion.

In the year 1791, the French province of Quebec was divided into the provinces of Upper and Lower Canada, to each of which was given a representative Legislature on the model of the British Government. It appears evident that when "the

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Act giving the French inhabitants of Lower Canada a separate Constitution and restoring their own civil law, an act full of benefits and privileges for those newly-acquired subjects of the Crown," was introduced, they were incapable of appreciating or availing themselves of its advantages, and that for a period of more than a quarter of a century the local Government acted without any control on the part of the Assembly.

It is not surprising that abuses should have crept into the Administration, that grave causes of complaint should have arisen, and that men should at length have been found to seek distinction in the Legislature who were capable of understanding those abuses and the remedy for them.

The Departments of War and the Colonies, now separate departments of the British Government, were conducted under the same Minister till after the Peace of 1815, and it is easy to understand that little time could be spared from the conduct of such a war for attention to the affairs of the colonies. The complaints of the colonists were of the malversation of receivers of the revenue, and commissioners for its expenditure, of sheriffs becoming insolvent, with the assets of suitors in their hands, and of abuses in the management of the public lands. In addition to these abuses of administration they complained of the exclusion, with very few exceptions, of the French from the Legislative and Executive Councils, and from the offices of the Government. To all these complaints the Government and Legislature of England lent a patient ear, and, as has already been stated in the words of Lord Aberdeen, every redress was afforded which was consistent with the honour of the Crown, and the duty of maintaining its supremacy for the protection of all the subjects of the Crown.

It was stated by one of the witnesses who had been for seventeen years a member of the Assembly, and had brought home a petition from the English portion of the population, in his evidence before the committee of the House of Commons, that "the truth is, the best of the French Canadians will take very little part in the public affairs of the community; these affairs are in the hands of lawyers, doctors, notaries, surveyors, small traders, tavern-keepers, and mechanics." As to the social well-being of the people, the Commissioners state:-- "When we look at what Canada is, and still more, when we thin. c of what, but for the political dissensions, she might be, we must deny that the condition of a British colony is an unenviable one. Every inhabitant of it, if he be of an ardent or aspiring character, has a wider field for the exercise of his ambition

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(being a British subject) than he could have under any other dominion in the world; and if content with the humble occupations of life, there is no part of the globe where he can pursue them more safely than here, or with a more certain prospect of his industry finding its reward. There is no country in which taxation is lighter or individual security greater, none more exempt from physical or moral evil, and to the enjoyment of this state one condition only, and by no means an onerous one, is attached, that of a due submission to the easy authority that protects and upholds it." With every actual abuse redressed, and with every amendment in the Administration which was necessary to prevent further abuses accorded so far as was compatible with the integrity of the sovereign power, and the duty it owes to all its subjects, what, then, was necessary to ensure peace and prosperity but a firm hand in maintaining law and order, and convincing demagogues who sought their own aggrandisement at the expense of the well-being of the community, that by becoming legislators they did not cease to be subject to the law.

In Upper Canada, which was originally settled by loyalists from the old provinces of America at the time of the disruption of those provinces from the mother country, the colonists remained loyal to the British Crown, and attached to the well-understood forms of government which had stood the test of two centuries of experience in the older colonies. But even there there were not wanting men whose ambition prompted them to disturb the public peace in order to bring about such changes in the Constitution as would open to them the doors of office, and the disposal of its patronage.

The Government of Lower Canada had been able to sustain itself against an overwhelming majority in the House of Representatives, by the command of the hereditary revenues of the Crown in that colony which had never been placed at the disposal of the House of Representatives. Amongst other recommendations of the committee of the House of Commons was one, that all the public revenues should be placed under the control of the Assembly, on their providing a permanent civil list for the maintenance of the Executive Government and the administration of justice. Lord Goderich, who was then principal Secretary of State for the Colonies, thought a display of confidence in the Lower House could not fail to produce a generous recognition of the privileges thus accorded to them. He passed a bill through Parliament placing the hereditary revenues at the disposal of the elected representatives of the

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people, not doubting that they would recognise the obligation of providing a civil list; but he mistook the character of the men. Having thus obtained the legal disposal of the public revenue from all sources, they made use of it to insist upon the Legislative Council being made elective. They refused to vote any money for the public service till this demand was complied with, and left the judges and other servants of the public without the income which had been promised them on their appointment by the Crown for upwards of four years, and forced upon the Government the necessity of suspending the Constitution.

There are few more humiliating pages in the history of any country than the insurrection which resulted from this step, promoted by demagogues in Upper and Lower Canada, in the apparent confidence that their rebellion, if not looked upon with favour by influential men in England, would at least be treated with leniency. Put down by the energy of Governor Sir Francis Head and the loyal colonists of Upper Canada, and by the Queen's forces in the Lower Province, they nevertheless carried their point of making the local Government subservient to their ends, and obtained the assent of the Queen's Governor to an Act to compensate the rebels for the destruction they brought upon themselves, the very men who wer taken with arms in their hands in resistance to the Queen's authority being voted the value of the weapons with which they had opposed the Queen's forces in the field.

It is not proposed to write the history of the Canadas, but it has been thus far necessary to refer to it in order to trace the origin of that influence in the Colonial Office which rendered the needful reforms of no avail, because it encouraged the colonial demagogues and agitators to disregard all reforms unless accompanied with such organic changes of the Constitution as would transfer the powers of Government from the Queen's Governor to themselves. The change sought by the majority of the House of Representatives, was that the Legislative Council should be made elective, in regard to which Lord Glenelg, in his instructions to the Commissioners, states that--

"'The King is most unwilling to admit as a matter of deliberation the question whether one of the vital principles of provincial government should undergo alteration. The solemn pledges so repeatedly given for the maintenance of that system, and the just support which it derives from constitutional usages and analogies, are alike opposed to such innovation, and might seem to preclude the discussion of it.' 'It must be recollected that

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the form of provincial Constitution in question is no modern experiment, nor plan of government in favour of which nothing better than doubtful theory can be urged. A Council nominated by the Crown, and possessing a co-ordinate right of legislation with the representatives of the people, is an invariable part of the British Constitution in all the transatlantic possessions of the Crown, with the exception of those which still remain liable to the legislative authority of the King in council. In some of those colonies it has existed for nearly two centuries. Before the recognition of the United States as an independent nation, it prevailed over every part of the British possessions in the North American continent, not comprised within the limits of colonies founded by charters of incorporation. The considerations ought, indeed, to be weighty, which should induce a departure from a system recommended by so long and successful a course of historical precedent.'"

The foundation of the Australian colonies towards the close of the last century had, to all appearance, introduced a new system into the government of colonies. But when it is considered that those were not at first free settlements of British subjects, but penal establishments for the punishment of crime, it will be at once apparent that the principles of free colonisation were not applicable to them. In the course of time, however, as free settlers resorted to the Australian colonies, the despotic rule of a penitentiary gave way to a mixture of representative institutions; and in the year 1840, the British Government was prepared to extend to the Australian colonies the same representative institutions which had stood the test of two centuries in most of the early American settlements. About the same time a very able and elaborate report had been prepared by the Board of Trade upon colonial Constitutions. In that report, while it was held that the abstract excellence of the old model was unquestionable, it was nevertheless maintained that much deference was due to the opinions and wishes of the colonists themselves. And in consequence of the then existing Assembly having expressed by a formal resolution their preference for a single House of Legislature, it was considered expedient to frame a Constitution for New South Wales in accordance with that preference, rather than with ancient constitutional precedent.

The same spirit of concession to the popular voice, or what was supposed to be the popular voice, was manifested towards Canada; and has since been acted upon, not only in the framing of Constitutions supposed to be agreeable to the wishes of

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the colonists, but in making provision for the alteration of those Constitutions by the authority of the local assemblies. But Constitutions, even when sound in their basis and upright in their organisation, are of themselves but of secondary importance, compared with the spirit in which they are administered. However necessary as the framework of the body-politic, Constitutions at the best are but the dry bones and integuments of government, and require to be continually animated and directed by an upright spirit, in order to secure the well-being of the community. The spirit of concession did not stop with the framework of Constitutions. The report of Lord Durham on Canada, while admitting the existence of abuses sufficient to account for the hostility of the Assembly, and to induce them for four successive years to refuse the supplies, assumed the necessity, not only of a redress of those abuses, but of organic changes in the system of administration, in order to its harmonious working.

It assumed, as incident to the existence of a House of Representatives having the control of the public purse, the necessity of conforming the measures of administration to the requirements of a majority of that House. In effect it claimed for the third branch of the Legislature the functions of executive government, as well as a co-ordinate right of legislation with the Governor and the Legislative Council, and the constitutional control of the public purse.

This pretension was set up as being in strict conformity with the working of the British Constitution in the mother country. It was assumed that the Governor of a colony stood in the same relation to his subordinate functionaries as the Queen to her responsible Ministers, and that those subordinate functionaries stood in the same relation to the elected representatives of the colonies as the Queen's Ministers to the House of Commons; and from these assumptions it was inferred that if the functionaries of the Governor were unable to carry his measures through the Assembly, they ought to give way to functionaries who could succeed in doing so. This assumed obligation, if not formally admitted, was at least acquiesced in by the home authorities; and the new system of administration founded upon it, which made the Governor a mere tool in the hands of the leaders of the Assembly, having been introduced, first into Canada, and subsequently into all colonies where it was required by the popular leaders, was called "responsible government." It was shown by Lord Brougham, in the House of Lords, that the views thus represented were alien to the

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true principles of the British Constitution, as well as to the practice of the British Government; and it is remarkable that there was no statesman who took any part in the discussions, in either House of Parliament, which arose out of the affairs of Canada who did not insist upon the incompatibility of the principle involved in the recognition of such a system with a due regard to the maintenance of the public faith and the honour of the Crown; and by none was this incompatibility more insisted upon than by Lord John Russell himself, although, as Secretary of State for the Colonies, he gave way to the pressure of colonial politicians and acquiesced in its adoption.

It is important to show the views held by our leading statesmen on this anomalous innovation. Lord Brougham states:--

"A notion sprung up at one time which was very much encouraged by Lord Durham and his party, which goes by the name of 'responsible government!' If I were to say that I clearly understand what is meant by the term, I would be arrogating to myself a degree of perspicacity to which I have no right; I should, moreover, be invidiously placing my intellect in contact with that of my noble friend at the head of the Government. The principle of responsible government is this, that whoever governs a colony (and it is not confined to Canada) is, if I understand it at all--but my noble friend. Lord J. Russell, not being able, as he says, to understand it, I may be excused if I mistake--however, I believe it to be that whoever governs a colony he shall be bound to choose as his Ministers whomsoever the Legislature of the colony is disposed to give its confidence to. And further, whatever be his opinion of their conduct, so long as the confidence continues, he cannot remove them. Now if it be supposed that this is a copy of the Constitution of the mother country, there cannot be a greater mistake. The Ministers in this country are the organs of the Crown. They are responsible to Parliament. But the principle is one of give and take. The Crown has the choice of selection and dismissal, and the Parliament of refusal; and, therefore, both Crown and Parliament have a somewhat similar, though, in cases of irreconcileable differences, not unequal influence. And here Mr. Bentham made a great mistake when he wholly neglected- the operation on both parties of the fear of differences producing collision, and described all balances and checks as only bringing government to a standstill; for he did not consider that the Crown will give up a little not to bring things to extremity with the Parliament, and

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the Parliament will give up something not to bring matters to extremity with the Crown. But in the colony we are told to regard as the English Constitution one which gives the whole povser to one party in Parliament and leaves nothing to the Crown. This is called 'responsible government.' Well, then, our Ministers gave them (the Canadas) responsible government --that is to say, gave them the power of naming the Ministers, who, though appointed by the Government, are voted by the Assembly, and are kept as long as the Assembly please to keep them and to make them the instruments in their hands of executing their designs. Such is the construction put upon responsible government in the colonies; and Lord Elgin, I see, has put this construction upon it; indeed, but for such a construction, nobody could ever have dreamt of appointing Mr. Lafontaine." 7

The following are quotations from the speech of Lord John Russell on opening the debate on the Canada question in the House of Commons on 6th March 18. 37:--

"The first demand of the Assembly is, that the Legislative Council, having hitherto been nominated by the Criwn, shall, for the future, be an elective Assembly. The next is, that the Executive Council shall be a responsible Council, similar to the Cabinet in this country. Another is, that the law of tenures shall be changed, without respecting the rights acquired, under an Act passed by the British Parliament. And the fourth is, that the Land Company shall be abolished, with a similar disregard of the rights acquired under the same Act.

"The relations between the mother country and the colony require that his Majesty should be represented, not by a person removable by the House of Assembly, but by a Governor sent out by the King--responsible to the King and responsible to the Parliament of Great Britain. This was the necessary Constitution of a colony."

As to the responsibility of Ministers, he says:--

"Of course the Governor must act according to their advice. If the Assembly do not trust those Ministers, if they do not think them fit, they must be removed, and others put in their places. The person sent out by the King as Governor, and those Ministers in whom the Assembly confided, might differ in

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opinion, and there at once would be a collision between the measures of the King and the conduct of the representative of the colony. But this proposition would tend not only to produce disputes, not merely to try the King's authority, but it would tend to introduce authorities totally incompatible with the authority which the King seems to have over every colony. There is an obligation, for instance, on the Government of this country to prevent any British subject being injured with impunity. If the Executive Council be appointed through the influence of the House of Assembly, the consequence would be that the Ministers thus appointed must carry into effect the Acts of the Assembly, and must deprive persons of land or other possessions, though holding them under the laws of this country, and by virtue of an Act of Parliament.

"That part of the Constitution which requires that the Ministers of the Crown shall be responsible to Parliament, and shall be removable if they do not obtain the confidence of Parliament, is a condition which exists in an Imperial Legislature, and in an Imperial Legislature only. It is a condition which cannot be carried into effect in a colony. It is a condition which can only exist in one place--namely, the seat of the empire.

"But there would be this anomaly also: if Canada were really independent, if any subject of Great Britain were wronged there, the King of Great Britain, as in the case of any-other foreign Power, could interfere to see that the wrong was redressed. But, as matters stand, if the propositions of the Assembly were agreed to, the King would have less power to interfere on the banks of the St. Lawrence than on the banks of the Danube or Bosphorus."

Mr. Labouchere, now Lord Taunton:--

"As long as the colony of Lower Canada remained part of the British Empire, he would not consent to anything that would tend to the degradation of the British Crown. He would not consent to abandon that high privilege and duty of Parliament to see that no act of injustice or oppression was committed in any part of the British dominions, wherever they might be."

Lord Stanley, now Earl of Derby:--

"The great body of British settlers in Lower Canada who went out there on the faith of finding there a copy of their free

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national institutions, of enjoying their national rights and national laws, were as opposed as the inhabitants of Upper Canada were to any of the innovations of French Republicanism.

"Next, a few observations on the subject of the Executive Council. This body were to act as advisers of the Governor on affairs of State, when required so to do, something after the manner of our Privy Council. Here the demand was, that the Executive Council should be rendered directly responsible to the House of Assembly. Here, again, was confounded altogether the wide and manifest distinction between an independent and a subordinate State: the King was subordinate to no one; the King's Ministers were responsible for him to the country; but what was the position of the Governor of a colony? He was responsible to the Crown here, to the Ministry here; he acted under the orders of the Ministry, and for his acts were the Ministry responsible to the Legislature. To impose on him, then, a double responsibility--a responsibility to the Government at home if he did not obey their instructions, and a responsibility to the House of Assembly if he acted contrary to their orders--would be to constitute two independent Legislatures interfering with, and counteracting, each other."

Extract of a despatch from Lord John Russell to Lord Sydenham, dated Oct. 14, 1839:--

"It appears from Sir George Arthur's despatches that you may encounter much difficulty in subduing the excitement which prevails upon the question of what is called "responsible government." I have to instruct you, however, to refuse any explanation which may be construed to imply an acquiescence in the petitions and addresses upon this subject. The power for which a Minister is responsible in England is not his own power, but the power of the Crown, of which he is, for the time, the organ. It is obvious that the Executive Councillor of a colony is in a situation totally different. The Governor under whom he serves receives his advice from the Crown of England. But can the Colonial Council be the advisers of the Crown of England? Evidently not; for the Crown has other advisers for the same functions, and with superior authority. It may happen, therefore, that the Governor receives, at one and the same time, instructions from the Queen and advice from his Executive Council totally at variance with each other. If he is to obey his instructions from England, the parallel of Con-

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stitutional responsibility entirely fails; if, on the other hand, he is to follow the advice of his Council, he is no longer a subordinate officer, but an independent Sovereign."

Mr. Gladstone quoted, with approbation, another passage from Lord John Russell's despatches:--

"There are cases of internal government in which the honour of the Crown, or the faith of Parliament, or the safety of the State are so seriously involved, that it would not be possible for Her Majesty to delegate her authority to a Ministry in the colony."

The following extracts are from a report of the Board of Trade in relation to the preparation of new Constitutions for the Australian colonies, dated April 4, 1849:--

"Although, in some cases, other schemes of colonial polity had been at first established, yet those schemes had all, with one exception, progressively been brought, before the end of the eighteenth century, into conformity with this general type or model--viz., 'of a Governor appointed by the Sovereign, of a Council nominated by the Sovereign, and of an Assembly elected by the people.'

"We think it desirable that the political institutions of the British Colonies should be brought into the nearest possible analogy to the Constitution of the United Kingdom. We also think it wise to adhere as closely as possible to our ancient maxims of government on this subject, and to the precedents in which those maxims have been embodied. The experience of centuries has ascertained the value and the practical efficiency of that system of colonial polity to which those maxims and precedents afford their sanction."

In the latest and ablest work on Colonial Constitutions it is affirmed that "now self-government for colonies is amongst the most popular and fashionable theses of the day, both with those who are and with those who are not accurately informed upon the subject." "It is manifest," says Mr. Arthur Mills, 8 "that the local administrators of a system so critically devised must be subjected to the perplexing and ever-recurring conflict of an inconsistent allegiance to two masters, the Colonial Assembly and the Sovereign of England. But nevertheless, 'responsible government' must be regarded as an accomplished fact, a system, the success or failure of which must depend mainly on the tact and talent of the Queen's representative."

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But the truth is, that what is called the "success" of the system depends less upon the tact or talent of the Queen's representative than upon the facility with which he is disposed to ignore the obligations of his commission, and to become the mouthpiece of whatsoever persons may acquire the lead in the Assembly. The truth that no man can serve two masters is universal in its application, to governors as well as to private men.

The system called "self-government," or "responsible government" in colonies, has also been designated by various other terms, such as "constitutional government," "parliamentary government," "representative government," and "party government," each of these terms involving its own peculiar ambiguity. When an identity of position is assumed as existing between the Governor of a colony and the Queen of England, it seems to be forgotten that by the law of the British Constitution the King or reigning Queen of England can do no wrong; no public act of the King or Queen being of any legal validity unless the instrument by which it is attested is countersigned by a Minister of State, whom the law makes responsible. And that consequently the analogy fails in its most important particular, because a colonial Governor is not only subject to legal penalties should he exceed his lawful authority, but answerable to the Government and Parliament of England for the manner in which he has executed his commission, and carried out the instructions which are framed for his guidance in conformity with the Constitution of the colony which he is appointed to govern. Nor is there more analogy between a colonial Assembly, with its subordinate and restricted powers of legislation, and the Parliament of England, with its original jurisdiction and supreme authority, than between a colonial Governor and his subordinate functionaries, and the Queen of England and her Ministers of State.

It is evident, therefore, that the pretensions put forth in support of the system of administration in the colonies, called "responsible government" on the ground of its analogy to the system of British government in England, are altogether unfounded. They do not rest upon any basis of truth, or of sound reason. Moreover it may well be questioned whether the idea of responsibility to the vote of a majority is not as unphilosophical in the conception, as it has proved absurd in the issue when votes were equally balanced--as, for instance, in the two last changes of Ministry in New Zealand, which were accomplished, in one case by a majority of one vote, and in the other case by the casting vote of the Speaker.

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The pretentious assumption of the designation "responsible government" in favour of such a system, implied that under the old system of colonial government there was no responsibility. But it only requires a little investigation into the facts of the case to make it apparent that the real responsibility for good government was as truly and altogether on the side of the former system, as it is wanting in the system which has replaced it.

In the legitimate sense of the word, responsibility implies the existence of a sentiment of duty, as well as of a certain ascertained or ascertainable standard to which it can be referred: to the enactments, for instance, of a law; to the commands of a superior; or in the highest sense to the revealed will of God, and of that conscience of right and wrong which He has implanted in the hearts of His rational creatures.

When an officer of rank and reputation was appointed by the Crown to govern a colony, he was responsible in all these senses. He had the law and his instructions for his guide. It was due to the rank and reputation he had acquired that he should exert himself to do justice to the qualifications by which he had acquired that rank and reputation: that he should govern lawfully and well in the eyes of the authorities which appointed him, as well as in the eyes of the British public and Parliament. Measured by so high a standard the rule of duty and conscience was his safest guide; and not only so, but self-interest, honour, and ambition, alike prompted him to adhere to the oldest and most authoritative of all maxims of administration, "He that ruleth men must be just, ruling in the fear of God." But it is far otherwise with those whose tenure of office rests, not upon the fulfilment of a duty, but upon the vote of a majority--of those who can only retain their position by consulting and ministering to the ever-varying but ever-selfish interests of the clique of colonial politicians by whose votes they acquired office and must be retained in it. If there could have been any difficulty in determining such a question in the abstract, that difficulty is removed by the experience of twenty years; affording ample evidence that the concentration of the powers of government in the democratic branch of the Constitution, and the abeyance of the constitutional checks which form the true excellence of British institutions, lead to a trade in the offices and transactions of government, which is sure sooner or later to be monopolised by the least scrupulous traders, and made disastrous to the colonists as well as disgraceful to the mother country. There is not one of the colonies in which the system called "responsible government" has been estab-

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lished that does not afford evidence of this; and of the monstrous sacrifice of the public interests which has resulted from it.

But it is not only that what is called self-government by such a system, in colonies, is incompatible with the welfare of the community--the true object of government. It results from the very nature of sovereignty that self-government in any province of an empire, unless that term is applicable to the regulation of subordinate matters, is incompatible with its obligations and duties. Sovereignty being inalienable, there can be, from the nature of the case, only one sovereign authority under one dominion. If there be a delegation of authority and jurisdiction, it still belongs to the sovereign power, and is incumbent upon it to maintain and control the exercise of that authority and jurisdiction, in conformity with the conditions of its delegation. Nor is there any alternative between this exercise of sovereignty and its total renunciation. But, further, it is not only inconsistent with the nature and with the obligations and duties of sovereignty that there should be self-government in a province, the same condition, in regard to British administration, results from the fundamental laws of the British Empire which extend to every colony of British settlement, and form the safeguard of British subjects, as well at the antipodes, as in the streets of London. Every colonial Constitution is framed in subordination to this fundamental principle of inalienable sovereignty. The power of making laws is defined and limited in conformity with it. In most colonial Constitutions there is an express proviso that the laws made by colonial Assemblies, which are created subject to their provisions, shall not be repugnant to the law of England. But in cases where no such proviso exists, the Courts of superior jurisdiction will hold invalid, as being ultra vires of a subordinate Legislature, any enactments which conflict with fundamental law. Then, again, with regard to administrative authority, it will be found, on an examination of the commissions and instructions of our colonial governors, that the same principles are maintained throughout those documents. No jurisdiction is acknowledged which does not proceed from the Crown; and not only are the powers to be delegated by the Crown defined by Act of Parliament, but in most cases the very form of delegation is specified; and thus that ultimate and absolute sovereignty, which by the British Constitution resides in the three estates of Parliament, is made to pervade every department of government in the colonies, as well as in the

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mother country, and in matters of administration as well as in matters of legislation. These are not mere matters of speculation, but statements of facts which are incontrovertible, and which it would be easy to prove by reference to the highest authorities if time would allow. It is hoped that the present exposition of them cannot be considered as otherwise than well-timed, when it is remembered how entirely they were overlooked or ignored in the late debates on New Zealand, even by members of Parliament who had themselves been Cabinet Ministers. It was in that debate almost universally assumed that there existed in New Zealand a "local Government," responsible-- not to the sovereign power--but to the local Legislature. It was made a matter of grievous complaint that the power of this so-called local Government extended even to the control of the national forces. Nor is this so much to be wondered at, when the language used in some public despatches is considered. In one it is stated that what is called responsible government is "unequivocally established" 9 in those colonies which have adopted it. In another the following words are used:-- "That it will be impossible for Her Majesty's Government to authorise the Governor of New Zealand to employ Her Majesty's troops in suppressing native disturbances unless he shall have been thoroughly conversant with, and personally consenting to every measure of the local Government which in its operation may have unfortunately led to the necessity of so employing them;" 10 thus promulgating the strange doctrine that the peaceable subjects of the Queen are not entitled to protection if they should be brought into danger through no fault of their own, but by the usurpation of illegal power on the part of subordinate functionaries, whose duty and oath of office require them to be obedient to the Queen's Governor, and not to usurp authority over, or independently, of him.

The more this subject is investigated the more clearly it will appear that no such local Government can have any legal existence; that the men who call themselves "responsible Ministers" have no authority whatever, but what they derive from the Governor, and for the exercise of which they are accountable to him, --an authority which, whatever it may be, he has at any time full power to revoke and annul. It will also appear that, as the Governor cannot lawfully delegate to his subordinate functionaries the trust vested in him by the

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Queen's Commission, the assumption of any such power as is implied in the existence of a local Government responsible to the local Assembly, is not only an usurpation on the part of those who assume it, but a dereliction of duty on the part of the Governor who permits it. 11

The evidences which have been adduced seem more than sufficient to prove that, in the opinions of our leading statesmen of both parties, the change which has been introduced into the administration of most of the British colonies under the name of "responsible government" is inconsistent with those rights and obligations which are inseparable from the supreme government of the empire; and that the changes in the colonial Constitutions which sprung up while the Australian settlements were in a state of transition from convict establishments to free colonies, were made against the judgment of those who recommended them, and in disregard of the experience of two centuries, which had proved the efficiency of the old model of colonial government; but in deference to the supposed wishes of the colonists, as expressed by a majority of those who were at the time placed in the situation of legislators, but who, as such, had certainly no authority to decide for their fellow colonists in a question which involved their right to be governed by the free customs of their forefathers.

Regarding the subject from a moral point of view, the first question which necessarily arises is the question how far the principle of what is called "responsible government" is reconcilable with the duty of the Governor as conveyed in his commission and instructions, and with the oath he has taken "for the due execution of his office and trust:" how far, in point of fact, it is a transfer of his allegiance from the Crown to the Assembly, and the Ministry they have selected for him.

That the government administered under such a system is an elective democracy, under the form and sanction of a mixed government, is sufficiently evident. But it is a democracy infinitely more democratic than that of the United States of America; inasmuch as the Ministers appointed by the President are responsible to him, and not to the Congress, unless through impeachment by the Senate. Is it not, then, a perilous and false position for a Governor to be placed in, in which he is expected to serve two masters? to be bound by his duty to discharge the functions of a Governor, and to consent to make that duty yield

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to the wishes of the majority of an Assembly? Is it less perilous for the men in subordinate offices? Will they not find it difficult to persuade themselves that they are not also in a false position? Is it less destructive to public morality that the vote of a majority is substituted for the rule of duty, and that everything comes to be looked upon as allowable which the vote of a majority will sanction, however irreconcileable with the honour of the Crown, or with the public faith?

Before proceeding to trace the evils which have resulted from yielding to the pressure of colonial politicians instead of maintaining the integrity of the empire and the supremacy of the law, it seems desirable, in order to the more full understanding of the change introduced into the administration of colonial affairs by the adoption of what is called "responsible government," to explain at greater length the system of administration which is in accordance with ancient practice, having existed in some of the transatlantic colonies upwards of 200 years. There was, first, a Governor holding a commission from the Crown to administer the government in conformity with instructions under the Queen's sign manual, or as otherwise provided for by the Charter or Constitution of the colony. Secondly, a staff of civil functionaries to assist him in the administration, who were also appointed by the Crown, and held office quamdiu se bene gesserent. These functionaries were also members of an Executive Council, which was constituted to advise the Governor in all matters of importance; leaving him, however, authority to act without their advice in cases of emergency, or even in opposition to their advice, if he should judge it right so to do, but requiring, in either case, that full explanations of his motives for so acting should be entered on the minutes of the Council. These minutes were periodically, or from time to time, transmitted to the Secretary of State; and each member of the Council, when he dissented from any of the Governor's proceedings, was entitled to have the reasons for his dissent entered upon them. The Governor had power to suspend, but not to remove from office, any member of his Government until the decision of the home rovernment should be declared; and the judgment of the Secretary of State was not pronounced without reference to the records of the Council containing the evidence and the deliberations of the Council upon the circumstances which led to the suspension. It would seem difficult to contrive a plan better fitted to make each functionary of the Executive Government responsible, in the

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first instance, to the Governor for his conduct as an administrative officer, and in the second instance to the Secretary of State for the advice he might tender to the Governor as a member of the Executive Council; or to make the Governor himself responsible for his own acts, whether undertaken with the concurrence of his Council, or against their advice. The Ministerial tenure of office was not contingent upon the will of the Governor, on the one hand, or upon the votes of the Assembly on the other hand; but upon the opinion which the Secretary of State might come to in regard to the integrity with which the specific duties of his office had been performed. In his capacity of Executive Councillor the Minister was bound to give such advice as his conscience dictated; but in his Ministerial capacity he was bound to obey the directions of the Governor, whatever might be his own judgment on the matter. There was thus every provision to encourage him in the faithful discharge of duty, by insuring him against the loss of office through adherence to duty; and the Governor and his Executive Council were thus one body, acting on the part of the Sovereign, each being individually responsible for his actions and his counsels to the highest authority in the State; but all united in performing their executive duties in obedience to one head.

The powers delegated to the Governor by the Queen's commission and instructions were founded upon an Act of Parliament, or upon a charter embodying the provisions of an Act of Parliament, which constituted him a co-ordinate branch of the Legislature with the Legislative Council and the House of Assembly.

It was the duty of the Governors of colonies from time to time to report to the Secretary of State the names of such persons as, from their experience and education, joined to the position which the independence of their circumstances gave them in the colonial community, might be considered most fit to become members of the Legislative Council; and from these names the members were selected and appointed by the Governor, subject to the approval of the Crown. The number of the Council varied in proportion to the number of the colonists. The members appointed held their office for life, subject to their title to resign their seats, or to removal for non-attendance during two successive sessions, or for conviction of treason or felony, or for bankruptcy or insolvency.

The House of Assembly was also proportioned to the number of colonists. The members were elected by colonists who pos-

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sessed the franchise from holding certain property, the value of which varied in different colonies. The term of their election was fixed by the Constitution Act, and they were at all times subject to a dissolution by the Governor. The President of the Council was appointed by the Queen. The Speaker of the House of Assembly was elected by the members.

The three branches of the Iegislature constituting the General Assembly were "empowered to make laws for the peace, order, and good government of the colony, provided that no such laws be repugnant to the law of England,"--a provision inserted (though not in all colonial Constitutions) ex abundanti cautela--for such laws were ipso facto void; no subordinate Legislature having power to make laws contrary to the laws of the realm." The statutes of the realm (quae edicta et statuta sunt) are the declared will of the supreme power of the State, which, unless they are repugnant to the laws of God, all subjects are bound to obey. Created by an exercise of the highest authority which the Constitution of this country acknowledges, they cannot be dispensed with, altered, amended, suspended, or repealed, but by the same authority of Parliament by which they were made. For it is a maxim of the law that it is conveniens naturali equitati unumquodque dissolvi eo ligamine quo ligatum est." 12

Such Constitutions were framed on the true model of the British Constitution. It has long been accepted as a constitutional principle that there can be no taxation without representation. The colonies not being represented in the Parliament of the empire, the right of taxation by that Parliament was relinquished, and power given to the representatives of the colonists to levy duties and taxes to provide for their local necessities. But while no colonist could be subjected to taxation without the consent of his representatives, the representatives were restricted from appropriating money to any purpose unless it should first be recommended to them by the Governor to make provision for that purpose; and every appropriation required the assent of the Legislative Council, as well as of the Governor.

The wisdom and foresight of the Supreme Legislature could go no further in providing for, and securing to, each colonist the same privileges which belonged to his countrymen at home. What more was wanted but that the law should be maintained, and that the administration should be conducted with integrity. No colonial Legislature could legally deprive a

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British subject of those safeguards for life, liberty, and property, which are secured to him by the fundamental laws of the empire. The laws of England were in force in the colony from the date of its foundation. But statutes of the Imperial Parliament enacted subsequent to that date had no force in the colony, unless specifically applying to it, or adopted by the local Legislature.

There was thus a representative of the Crown to whom was delegated sufficient executive powers, if independently exercised, to ensure to the colonial subjects of the Crown the inestimable benefits to be derived from a mixed system of government, which recognises in the Crown the fountain of justice, and the embodiment of the public faith, as well as the chief magistrate of the empire, strengthened and controlled by the conservative influence of the Upper House of Legislature, and by the command of the public purse in the representatives of the people: an ideal of government capable of a more perfect realisation in a colony than even in the mother country: inasmuch as an appeal to the Queen's Ministers in England can always settle irreconcilable differences between the executive and the legislative branches of the Government without any sacrifice of principle on either side; an advantage of inestimable value.

It has indeed been alleged, in justification of the illegal statutes of Colonial Assemblies, and of the Colonial Office in allowing them, that the "repugnancy" only relates to questions of what is called public policy, such as are subversive of religion or morality; to polygamy, for instance, and the like. It has also been said, on the authority of the words of the statute of William IV., c. 59, that the application of the words is confined to the repugnancy to any statute or law quoted or referred to in the respective Constitution Acts of the colonies. And this would appear to be the view accepted by some writers on colonial law. But a reference to that statute will show that it has no general application, or reference to the principles of law, but is altogether a law of administration, relating to local matters of trade, and not having any general application to colonies, but being confined to a specific colony or group of colonies.

The provision of repugnancy means a repugnancy to the common law of England, and to the statute law as it existed at the foundation of the colony, so far as the latter is applicable to the circumstances of the colony; and being the express words of an Imperial statute, it can only be rendered inoperative by the express words of another Imperial statute, and not by an inferential interpretation drawn from what Colonial Assemblies

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may have done, or from what the authorities in the Colonial Office may have left undone.

Indeed, from the necessary relations of Sovereign and subject, and the reciprocal rights and duties which How from those relations, it would appear that where no proviso of repugnancy is introduced into the Constitution Acts and charters of British colonies, such a proviso would be necessarily inferred. For as the law of gavel-kind is only existent in certain parts of England, and the ecclesiastical laws of England do not extend to all parts of the United Kingdom, so those laws and a multitude of others affecting the administration of the revenues and of institutions which do not exist in the colonies, are not applicable to, and not in force in the colonies. But to maintain that the common law of England, and such statutes as relate to the principles of law rather than to its administration, to the security of life, liberty, and property, are not in force in the colony, would lead to a dissolution of the empire. But there are statutes also which are fatal to such an interpretation; proving that the Supreme Legislature had a definite meaning in the introduction of this proviso, which is no new proviso, but was introduced into almost all the early charters and laws giving legislatorial powers to colonial Assemblies from the first beginnings of British colonisation; for instance, the statute of the 1st Will. IV., c. 20, which is a most instructive instance. For as the law of England respects the customs of gavel-kind in those parts of England where they are in existence, so this statute was passed to enable the King to respect the customs of the French inhabitants of Lower Canada by giving his assent to laws relative to the descent and tenure of lands in that province, "though such laws may be repugnant to the law of England." Another British statute, that of the 6th Vict., c. 22, was enacted to remove doubts as to the validity of laws made by colonial statutes admitting the evidence of barbarous persons who could not be sworn. The statute which was enacted to indemnify Lord Durham and his Council for an ordinance "which could not be justified by law" is another instance.

But the rash assertions and false assumptions of the report which bears the name of Lord Durham carried more influence with the Colonial Office than the lessons of history and the results of experience. "It is difficult," says that report, "to understand how any English statesman could have imagined that representative and irresponsible institutions could be successfully combined. There seems indeed to be an idea that the character of representative institutions ought to be thus modi-

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fled in colonies; that it is an incident of colonial dependence that the officers of Government should be nominated by the Crown, without any reference to the wishes of the community whose interests are entrusted to their keeping. It has never been very clearly explained what are the Imperial interests which require this complete nullification of representative government. But if there be such a necessity, it is quite clear that a representative government in a colony must be a mockery and a source of confusion; for those who support this system have never yet been able to devise or to exhibit in the practical working of colonial government any means for making so complete an abrogation of political influence palatable to the representative body. It is not difficult to apply the case to our own country. Let it be imagined that at a general election the Opposition were to return 500 out of 658 members of the House of Commons. It appears, therefore, that the opposition of the Assembly to the Government was the unavoidable result of a system which stinted the popular branch of the Legislature of the necessary privileges of a representative body, and produced thereby a long series of attempts on the part of that body to acquire control over the administration."

In whatever cloud of words the meaning of these sentences and of others of a similar character are concealed, their true meaning is this: that the subordinate functionaries of the Government should act under the direction of the majority of the Assembly. That is ("the best of the French Canadians taking very little part in the public affairs of the community)," under the "French lawyers, doctors, notaries, surveyors, small traders, tavern-keepers, and mechanics," who form the great majority of the House of Assembly, notwithstanding that Lord Durham's report tells us that the "ultimate aim of that majority is the maintenance of a Canadian (or French) nationality against the progressive intrusion of the English race." There can be no doubt of what Imperial duties, if not "Imperial interests," required in such a case--namely, to protect the Queen's subjects of the English race, as well as "the best of the French Canadians," from the despotism of a few of their countrymen, by preserving to all classes the privileges of British subjects to be governed by the free institutions which are their birth-right. This "responsible government" is, however, a fait accompli not only by the French Canadians, but in all other colonies where the revenues and the public lands were a temptation to clever men to make a trade of politics, and to obtain the patronage of office, and the power

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of distributing the public money amongst their connexions and dependents, in the shape of official salaries, or contracts for public works.

"Words," says Archbishop Trench, "exercising so great an influence as they do, resuming the past, moulding the future, how very important it needs must be that, in naming any significant fact or tendency in the world's history, we should give it the right name; since it is a corrupting of the very springs and sources of knowledge when we bind up not a truth but an error in the very designations we employ. It is impossible to measure the extent or depth of the impression which words of this kind, by the frequency of their repetition, may exert."

There could be no better illustration of the soundness of Archbishop Trench's philosophy than the use to which the words "responsible government," and the other delusive designations used in Lord Durham's report, have been applied, and the consequences which have resulted, and are likely to result, from this application.

To render so excellent a system of colonial administration as was founded upon the model of the British Constitution, and had proved its efficiency, superseding every other "scheme of colonial polity" during two centuries, "palatable to the representative body," whose aim was to monopolise the powers of government, would be hopeless. But to assume that the great body of the colonists, who have no other interest in the government than to see it well administered, would be dissatisfied with it, would be most unwarrantable. It is long since modern colonists had anything to complain of on the part of the mother country. Their trade is as free as that of their fellow-subjects at home, and the colonies have long since ceased to be a field for Parliamentary or family patronage. Why should it then be supposed, that because the principles or prejudices of the old American colonists drove them to rebellion in consequence of restraints upon their trade which would now be deemed intolerable, and of an interference with their internal administration such as no one now attempts to justify, that modern colonists should be dissatisfied with a system of government which is so generally admitted to be the best the world has ever seen, combining the stability of monarchical institutions with the greatest freedom in each individual which is consistent with a like freedom in his neighbours. There are no grounds for such an assumption. But the colonists as well as the people of England have been for many years the dupes

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of the sophistry which Mr. Gibbon Wakefield introduced into Lord Durham's report, and followed up by incessant repetition in the public press in every variety of form which ingenuity could suggest, till "the extent and depth of the impression" which words of such ambiguity or false suggestion as "responsible government," "self-government," "Parliamentary government," and the like have, by the "frequency of their repetition," produced upon the public mind is such, that argument seems almost wasted in the attempt to demonstrate the falsehood of the impressions they are calculated to convey.

One of the most effectual weapons which democracy has employed against a system of mixed government in the colonies is the disparagement of the Legislative Council, as having no such prestige as the House of Peers, and as wanting in all the attributes which give to that branch of the British Legislature its conservative character, and its hold upon the affections of the country. But the truth is, that if honestly selected, the moral influence of such a Council upon the colonial community would not be less than that of the Upper House of Parliament upon the people of England. It was, indeed, truly said in the debate on the New Zealand Bill in 1852, that "the effect of nominating legislative councillors by the executive or party (i. e. responsible) Government, was to lower the respect for them, because they were appointed for party purposes." But there was never yet a British community sufficiently numerous to allow of any municipal institutions being established amongst them which did not contain a sufficient number of "select men" to command the respect of their neighbours, and to justify their being placed in the position of a Conservative branch of the Legislature. The average education and intelligence of colonists is of a higher standard than that of their countrymen at home, and under every disadvantage--and no greater disadvantage could be imagined than that of the so-called "responsible government"--they have been the most effectual means of promoting the public welfare, by preventing the rights of their fellow-colonists from being sacrificed to the schemes of democracy.

It is true, indeed, that the majority of colonists, with some few individual exceptions, are too much engrossed by their private affairs to have leisure to give attention to constitutional questions, even if their previous education and avocations had been of such a character as to make them competent judges of such questions. They are, therefore, equally liable with their

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fellow-subjects at home to be led astray by the cant words and impudent assertions of men who make politics a trade; perhaps more so. But, in point of fact, no steps have ever been taken to ascertain the real wishes of the colonists, It is a libel upon a British community to say that they do not wish to be well and wisely governed, or that they would oppose, or not joyfully accept, such an alteration in their local institutions, or in the administration of them, as would relieve them from being, under pretence of self-government, reduced to the condition of un gens taillable et corveeable, to serve the ambition of a clique of colonial politicians.

But the great difficulty which is alleged is the impossibility of carrying on the public business if the House of Assembly should refuse to vote the supplies. The conduct of the French Canadians, who were eight to one of British origin in the Assembly of Lower Canada, cannot fairly be cited as an example likely to be followed in a purely British community. But even the stoppage of the supplies is an event not much to be feared, when the provision of a Civil List reserves for Her Majesty a sufficient portion of the revenue to maintain the administration of justice, and of the executive government. Where the result of such a step would not be the opening of the doors of office to the leaders of the Opposition, there would be little cause to apprehend it. But when it might occur, it would, in stopping the public works and starving the public servants, affect the members of the House and their constituents more than the Governor and his Council, who might patiently wait the decision of the Secretary of State on the points of difference which led to the interruption of the public service; and the great body of the colonists would fearlessly rally round a Governor whose moral character was unassailable, and whose conduct gave evidence that he was guided by a stern sense of duty alone.

The truth is that until the system called responsible government made colonial politics a trade, and converted the sacred trust of a legislator into a means of converting the public money to the uses of the individuals who held that trust, the management of a colony was an exceedingly simple affair.

In the grandiloquent effusions of our colonial statesmen one meets with the assumption that the policy of a colony must be something of a very difficult and recondite character. To hear some of our colonial orators it might be imagined that they had the affairs, not of a colony, but of an empire--not, perhaps, of

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an empire, but of a whole continent containing many empires, on their hands.

Their proceedings would suggest the supposition that the existence of human beings in civilised community had no other object than to afford a field for the display of all the talent with which the community might be gifted; and that it was the highest privilege of the community to provide a fund not only for their maintenance as politicians, but for the absorption into their body of politicians of every opposing element who might threaten their existence. But, in sober truth, if the words "duty and right" were restored to the vocabulary of our colonial statesmen and made the rule of their conduct; if, instead of being encouraged in the great swelling words of vanity with which they are wont to magnify their office as "the founders and progenitors of a great, powerful, and prosperous State," our colonial statesmen were kept by superior authority to their proper functions, the community would be saved from the ruinous consequences of an overvaulting ambition, and its real business would be found to be both simple and inexpensive; such as would permit the ablest men in the colony to take a part in its legislation, without sacrificing their private interests; for since the introduction of responsible government, it is true in other colonies, as well as in Lower Canada, that the best of the colonists have retired in disgust and despair from taking any part in the public affairs of the community, which are consequently left "in the hands of lawyers, doctors, notaries, surveyors, small traders, tavern-keepers, and mechanics," together with a large proportion of adventurers, who, having failed in all honest business, have made colonial politics a trade.

In regard to legislation, the universally-admitted principle of law being that British subjects carry with them to British colonial settlements all the rights and privileges which they derive from the fundamental laws of their country, the limit of the subordinate powers of legislation must be found in the application of that principle to the altered situation of the colonists. Passing from the one extreme, which in the instance of the Australian colonies made a despotic Government in the early days of those colonies a matter of necessity, to the other extreme, of allowing the democratic element of the Constitution a degree of power in the colonies which it has never attained in the mother country, the British Government and Parliament have lost sight of the consideration that the real danger of oppression to the Queen's

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subjects in the colonies existed in the abuse of delegated powers, rather than in the interference of the sovereign authority. It is true that the increase of wealth and the complications of modern society have created a different state of affairs to what existed in the earliest experience of British colonists, when the burden of government was laid upon the persons most competent to bear it, and its functions assumed as a duty; when Governor Bradford, "after having been chosen Governor of Massuchusetts for nine successive years, notwithstanding his remonstrance that if this office were an honour, it should be shared by his fellow-citizens, and if it were a burden it should not always be imposed upon him, was excused the tenth year by reason of his importunity."

It is an effect of the writings of such men as Mr. Gibbon Wakefield that a British colony has come to be regarded rather in the light of a theatre for the display of political talent than a settlement of British subjects, who, if their affairs were administered with integrity, would need little from the Government except the protection of its laws.

If confined to their proper functions, the colonial Legislature would have little to do beyond providing means to make roads and bridges as they might be required by the extension of the settlement, to construct wharves and other conveniences for the promotion of commerce, and buildings for the administration of justice, and other social necessities, such as hospitals and lunatic asylums. The advantage of such undertakings is so generally understood, that little difficulty would be experienced; each individual of the community would recognise their necessity, and cheerfully submit to the burdens that necessity imposed.

The chief practical distinction which it is important to keep in view in the administration of the affairs of colonies, is that between the furtherance of the public and private wealth of the colonial community, by public works and undertakings for which it is necessary to vote public money, and the maintenance of law and justice, by those acts of government which involve the public faith and affect private rights. In the latter case the Governor ought never to forget that, by the delegation to him of the Queen's authority, he has become the embodiment of the public faith and the guardian of the national honour, and that he is bound to adhere to his own views of the obligations which are thus imposed upon him, unless and until his judgment shall be overruled by the Queen's Secretary of State. But in the case of the former, his judgment may be more legitimately swayed by that of a majority of the Assembly, through whose

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agency alone taxes and rates can be levied and expended, and who are in this respect understood to represent the interests of those who elected them. But even in matters of this kind his vigilance will be constantly required to prevent any portion of the community or any individual from suffering injustice at the hands of a self-interested and tyrant majority, which will be always prone to lay upon the more distant settlers, who are most weakly represented, the heavier burdens; and to withhold from their districts a due share of the expenditure upon public works.

In all such cases, where an irreconcilable difference exists between a Governor and a majority of the Assembly, any sacrifice of principle or self-respect becomes unnecessary, because both parties are bound by the decision of a superior authority; a colonial administration thus affording free scope for the checks and balances of a mixed government, subject to the final control of an authority as impartial as can be supposed to exist. It is a necessary consequence of a competition of powers that one must give way to another, that there will not only be what Lord Brougham calls "a system of give and take" between the Crown and its Ministers when swayed by a majority or expected majority in Parliament; but, on one side or the other, there will occasionally be some sacrifice of principle to prevent a dead-lock in the functions of government; whereas in a colony there need be no room for this sacrifice of principle, or danger of good government being sacrificed to the predominance of one element of power. But in order to this, it is necessary to discard the notion that the subordinate Government of a colony has any right to act as if a colony were a nation, entitled to absolute power and independent action, and not a detached portion of an empire, the Government of which cannot evade the responsibility of protecting its inhabitants either from outward aggression, or from the oppressions or abuses of its local functionaries; or that the colonial subjects of the Crown can owe allegiance to local authorities, or be deprived of the protection to which, in right of their allegiance to the Crown, they are entitled from it.

A system of colonial administration which allows executive functions to be overruled by the vote of a majority has shown itself to be inconsistent with a government according to law and justice, as substituting the crude opinions, not to say the selfish objects, of the majority for the principles of government which law and experience have established. It is inconsistent with one of the most essential requirements of good government that the functions of the legislative department of the

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State should be kept distinct from those of the executive department. It is only consistent with a state of barbarism from which the European nations have emerged for several centuries.

The first essential requisite of government is stability; and it is the highest triumph of civilisation to have secured, as in Great Britain, the co-existence of the stability of the Throne with the liberty of the people. These advantages belong of right to the inhabitants of every British colony, as well as to those of the mother country; but they can only be secured by an adherence to the principles of British government.

Why should a community of British freemen relinquish the first and greatest advantage of that civilisation which the wisdom and patriotism of their ancestors had bequeathed to them, in order to throw themselves into the hands of a faction, which, in the very fact of its existence, ignores the sense of duty and loyalty, and which, as experience has already invariably shown, can only maintain itself by corruption; paralysing the proper functions of government, and substituting for them a perpetual struggle for oflce, which makes a due attention to the real business of the community impossible?

In the mother country there exists an hereditary class whose circumstances constitute to the community one of the greatest securities for good government, independently of the influence of party or of faction--a class of persons elevated in rank--in possession of wealth to satisfy every desire and imagination-- having only one object of ambition left, that of obtaining distinction in the management of public affairs; a class of persons trained from their earliest years in the science of politics--knowing all knowledge, enlightened by the results of all experience--with the prestige of rank and of a historic name--inaccessible to the temptations which the emoluments of office hold out to the needy. To such a class, which at once adds to the stability of the Throne, and protects the liberties of the people. Divine Providence would appear to have specially assigned the functions of government, and amongst their ranks are generally found a large proportion of men distinguished for talent, possibly inherited from their progenitors, who were the first to achieve greatness, as well as a disposition "to scorn delights and live laborious days." But in the colonies such a class is altogether wanting. It may be affirmed almost absolutely, that there are no men in the colonies to whom the emoluments of office would be indifferent, and to whom the colonists could look up, as a governing class, with any degree of assurance, that their object

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and aim in acquiring office would be an exclusive devotion to the public good. It is enough to say that there are men competent to the task of government if continued in office; but honourable men find it impossible to submit to the conditions by which votes are influenced, and they are forced to give way to others who have no higher objects than to make the public interests subservient to their own, and to the interests of those by whose votes they were placed and are maintained in office--men of whom, with but few exceptions, it may be said, that they assume the functions of government only to disgrace them. 13

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It may be urged in answer to all this that the Supreme Government has never, in fact, relinquished the power to direct and control the conduct of the Queen's Governor, and that they leave "the success or failure of responsible government to the tact and talent of the Queen's representative."

The Queen's commission and instructions, under the Royal signet and sign manual, are also, in no sense, reconcilable, as

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has already been observed, with the delegation of the Governor's powers. 14 Let us take the case of New Zealand. In the despatches of the Secretary of State, authorising the introduction of the system called responsible government, on provision being made for the retiring functionaries, there is no revocation of the former instructions, nor any passage vhich could be construed as giving authority to the Governor to abdicate his functions. But, on the receipt of this despatch, the Governor sent a message to the House of Representatives that he would be ready to give his confidence to such members of the House as they were willing to support as his executive functionaries, and the members indicated were, thereupon, appointed to be members of the Executive, and to the offices vacated by the previous officers. It is probable enough that the Secretary of State might, at the time, consider that this was nothing more than the relinquishment of the patronage of office, and that the new functionaries would not be the less "obedient, aiding, and assisting" to the Governor, as required by the conditions of their accepting office, because of their being chosen at the instance of the House of Representatives. But it very soon appeared that the change meant nothing less than an abdication by the Queen's Governor of the functions of his office. This is a point which it is easy o determine, as well by the public acts of the local Government as by the despatches of the Secretary of State. Governor Browne expressed his conception of what "responsible government" meant in a "memorandum by which the relations of the Governor towards his Ministers was established:'--

"1st. In all matters under the control of the Assembly the Governor should be guided by the advice of gentlemen responsible to that body, whether it is or is not in accordance with his own opinion on the subject in question."

From these he excepts "matters affecting the Queen's prerogative and Imperial interests generally," including "all dealings with the native tribes." On this last reservation a late Prime Minister of New Zealand observed that:-- "In assenting to the introduction of that practice into the colony, the Home Government attached but one condition-- that we should pension the retiring officers of the Executive Council. But Governor Browne added another condition, unauthorised by the Home Government--that we should surrender to him the entire administration of all affairs relating to the natives. It was robbing us exactly of half our Constitu-

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tion." 15 This is a sample of the ideas pat forth by the men whom the Constitution, and- the law, look upon only in the light of subordinate functionaries, bound to obey the Governor's directions, and "to be obedient, aiding, and assisting to him."

Thenceforward the Governor gradually sank to be the mere organ of the men who, for the time, could obtain a majority in the Assembly. A slight, but ineffectual, struggle was made in a case or two where the public faith was in question, and the management of native affairs was, for a time, kept apart from the other business of the Government. But gradually this became also more in name than in reality. The increasing necessity for patronage to maintain supporters, and buy off opponents, at length removed the old and experienced native functionaries, and the new were not long of precipitating a war with the natives. The next Governor, Sir George Grey, from whom such great things were expected, at once, and entirely, coalesced with the existing state of things, and went openly beyond Governor Browne, inasmuch as that, whereas Governor Browne ostensibly maintained his independent action in native affairs, Sir G. Grey yielded these also to the direction of the Ministry of the Assembly. In a despatch to the Duke of Newcastle, dated 30th November, 1861, he writes as follows:--

"1. In my despatch. No. 3, of 9th October last, I transmitted the copy of a memorandum on the machinery of government for native purposes, which had been forwarded to me by the New Zealand Ministers.

"2. The substance of the question which has been raised upon this subject may, I think, be stated to be this: that, whilst the colonial Ministers are virtually responsible for all other matters of government in this colony, the Governor has hitherto retained the management of native affairs in his own hands.

"3. The Ministers, in their memorandum, state this in the following language:-- 'The result is that while, on all other subjects, the responsible Ministers are the sole advisers of the Governor, and exercise the entire executive functions of the Government, on native affairs the Governor has, in addition to his Ministers, another adviser--his native secretary--who is not a responsible Minister, nor under the control of responsible Ministers, but who exercises (subject only to instructions from the Governor himself) all the executive functions of Government in relation to native affairs.'

"4. Under this system there would be two Governments in

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the colony, which not only would not always aid one another, but which would sometimes act at cross purposes with each other.

"5. At the present crisis, it is quite impossible that Her Majesty's Government could be advantageously carried on under such a system. I therefore immediately arranged to consult my responsible Ministers, in relation to native affairs, in the same manner as upon all other subjects, and, in like manner, to act, through them, in relation to all native matters. If any serious difference takes place between us upon these subjects, I must, as in other cases, resort to other advisers, and appeal, in fact, to the General Assembly........

"9. Another disadvantage of the system of making the Governor chiefly responsible for native affairs is, that it will be thought that the wars which may arise under it have sprung, whether rightly or wrongly, from the acts of the representative of the British Government, over whose proceedings the Colonial Legislature had but very imperfect control, so that it would seem difficult to call upon that body to find means of defraying the cost of a war, for the origin, continuance, or conduct of which 'it was only in an indirect manner responsible.'"

Amidst the ambiguities which characterise the language of this, as well as of all other despatches relating to what is called "responsible government," it is to be gathered from the sentences above quoted:--

First, that in the administration of native affairs the Governor had previously, ostensibly at least, acted upon his commission and instructions--that is, that through another adviser (his native secretary) he exercised "all the executive functions of government in native affairs;" this adviser, however, being "in addition to his Ministers (who are bound by their oaths, as members of the Executive Council, to advise the Government when called upon). Secondly; that Sir George Grey considered that this was one Government, and that the second Government was that of the responsible Ministry, which, together, constituted "two Governments in the colony"--that is to say, the Government of the Queen in the one case, and the Government of the Assembly in the other case. The language of Sir George Grey, in his minutes addressed to his Ministers in accordance with these views, is not that of command, nor is it a requisition for advice. It is couched in such terms as these--"I think it might be found expedient;" "I would, therefore, earnestly recommend;" "My responsible advisers have not yet given to me the details, military or financial, of

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the plans by which they intend to give effect to that policy," &c.

In reply to the above despatch, the Duke of Newcastle writes, under date the 26th May, 1862:-- "I am ready to sanction the important step you have taken in placing the management of the natives under the control of the Assembly. I do so partly in reliance on your own capacity to perceive and your desire to do what is best for those in whose welfare I know you are so much interested. But I do it also because I cannot disguise from myself that the endeavour to keep the management of the natives under the control of the Home Government has failed. It can only be mischievous to retain a shadow of responsibility when the beneficial exercise of power has become impossible." And again, in a despatch to Governor Grey, dated the 5th June, 1861, the Duke of Newcastle expresses himself as follows:-- "Whatever may be the future arrangements as to the purchase of native lands, or administration of native affairs, or whatever may be the amount of force maintained in the colony, or whatever the source from which its cost shall be defrayed, it will be impossible for Her Majesty's Government to authorise the Governor of New Zealand to employ Her Majesty's troops in suppressing native disturbances, unless he shall have been thoroughly conversant with, and personally consenting to, every measure of the local Government, which in its operation may have unfortunately led to the necessity of employing them." Is it possible to come to any other conclusion from this passage than that the Secretary of State admits the existence in the colony of a "local government," which has the power to exercise executive functions, apart from the Governor, without his knowledge and concurrence, and of such a nature as may lead to civil war. But what is to be thought of the conclusion:--that, in such an event, the Queen's subjects, amongst whom such an usurpation and abuse of power is permitted, are to be deprived of the protection which is due to them as members of the British Empire? These passages from the published despatches of the Governor and the Secretary of State, seem to leave no doubt of the construction which is put on the words "responsible government" by these functionaries. It may be well to add another illustration, arising out of the exercise of the first of the special powers which the Constitution Act reserves for Her Majesty: the words of the Constitution Act relating thereto, being as follows:-- "Whereas it was among other things provided, that at any time during the continuance of the office of any Super-

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intendent of a Province, it should be lawful for Her Majesty to remove him from such office, on receiving an address signed by the majority of the members of such Provincial Council, praying for such removal;" which power the Constitution Act authorised Her Majesty to delegate to the Governor, and which was delegated accordingly.

In the session of the Provincial Council of Auckland of 1862, a petition signed by a majority of the Council was presented to the Governor, praying for the removal of the Superintendent, to which the following replies were made:--

Government House, Auckland, April 12, 1862.
To Hugh Carleton, Esq., M. P. C.

Sir, --In reply to your note of the 25th ult., forwarding a petition from members of the Provincial Council of Auckland, praying for the removal of his honour John Williamson, Esq., from the office of Superintendent of the Province, I an directed by his Excellency the Governor to inform you that, after a careful consideration of the subject, he deemed it proper to forward it for the consideration of his responsible advisers, --I have, &c,

(Signed) E. L, LAYARD, Private Secretary.

Colonial Secretary's Office, April 14, 1862.
To Hugh Carleton, Esq., M. P. C.

Sir, --I have the honour to inform you that the petition signed by eighteen members of the Provincial Council of Auckland, praying for the removal of the Superintendent, which was forwarded by you to his Excellency Sir George Grey, has been referred by him to his Ministers for their advice as to the course which he ought to pursue iff the matter; and I am commanded to convey to you, on behalf of yourself and the other gentlemen who signed the petition, the conclusion arrived at by his Excellency, which is, that the circumstances disclosed by the petitioners do not constitute one of those extreme cases which would alone justify bis Excellency in exercising the power vested in him by the Constitution Act. --I have, &c.,

WILLIAM FOX, Colonial Secretary,

Here is another illustration of the ambiguity which seems inseparable from the exposition of even the simplest transaction of the government under such a system. The 12th clause of the Royal instructions is as follows:-- "And it is our further will and pleasure, and we do hereby command you that in the execution of the several powers and authorities granted and committed to you by our said commission and these our instructions, or by any additional instructions hereafter to be given to you by us, you do in all things consult and advise with our said Executive Council:" and by the 18th clause, "It is our plea-

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sure that you do attend and preside at the meetings of our said Executive Council, unless when prevented by some necessary or reasonable cause."

These instructions are plain and precise, and the Governor is sworn to obey them. What course does the Governor pursue? His private Secretary's letter informs us, "that after a careful consideration of the subject" (extending over a period of eighteen days), "he deemed it proper to forward it for the consideration of his responsible advisers." There is no mention of the Executive Council. His responsible advisers are indeed members of that Council. But in pursuance of his instructions it was his duty to summon his Executive Council, to preside thereat, and to cause its deliberations and resolutions to be recorded in the Minutes of the Council. We were, perhaps, not entitled to be informed that this had been done. But why then state that the petition had been forwarded for the consideration of his responsible advisers? Are the proceedings directed by the instructions compatible with those actually resorted to? Or are they not rather, like the passage above quoted from the Duke of Newcastle's despatch, a recognition of a "local Government" apart from the Queen's Government, called a "responsible Ministry," accountable not to the Crown as required by law, but to a majority of the House of Representatives?

But in order to understand in its full significance the case of this petition, it is necessary to mention that it was by the defection of this superintendent, who was a member of the House of Representatives, and had two of his subordinate functionaries in the Legislature, that the previous Ministry had been ousted, and the then existing Ministry established in office by a majority of one vote; and the question naturally arises, was this a proper question on which to consult his Executive Council, or is responsible advisers, call them which they will, seeing that their very existence as such might depend upon the advice given? Or, was it not rather one of those cases provided for in the Queen's instructions "which may be of such a nature, that in your judgment, our service would sustain material prejudice by consulting our said Council thereupon;" and therefore requiring the exercise of that exclusive discretion which the instructions reserved to the Governor.

Of the meaning attached to the words "responsible government," proofs in abundance might be brought from the public correspondence relating to other colonies, as well as from that relating to New Zealand. In a despatch to the Governor of

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Victoria, dated June 26, 1863, relative to the obligation of colonies to contribute to their own military defence, the Duke of Newcastle uses the following words:--

"The force in Tasmania, where the effects of the old system of transportation are not yet worn out, will be maintained for the present at the expense of the Home Government; and in the remaining colonies of New South Wales, Victoria, South Australia, and Queensland, there are no exceptional circumstances to prevent the free application on the part of the Home Government of those principles which arise from, or are correlative to, the grant of responsible government.

"That form of government being unequivocally established, it is, I imagine, admitted on all hands that the Imperial Government has no further responsibility for maintaining the internal tranquillity of the country. Its obligations, therefore, to contribute towards the defence of colonies in full possession of internal self-government, and unaffected by any exceptional circumstances of situation or population, is limited to the contingency of war and danger of war."

Shortly after the receipt of this despatch the Governor to whom it was addressed. Sir Henry Barkly, was removed to the government of Mauritius. At a farewell dinner given to do him honour, after acknowledging the complimentary toast, he thus expresses himself:--

"I feel, however, that there is something solemn--something almost affecting --in thus being called upon to give an account of my stewardship. True, as a constitutional Governor, I can claim, as Sir James Palmer has said, little share of the praise or blame of the policy pursued by my advisers. Still, a constitutional Governor does retain a certain negative power, which may be employed either for much good or for much evil. (Hear, hear.) A popular idea, no doubt, is, that nothing can be easier or more delightful than the position of a Governor under responsible institutions--that he has merely to act on the advice tendered to him, or rather, to let others act in his name. Nevertheless, I think those who reflect will see that the first constitutional Governors in these Australian colonies have had certain difficulties to encounter and certain delicate duties to perform in the transition from one system of government to the Other. (Hear, hear.) Instructions from the Crown to these Governors remain precisely as they have done before, and if they look to the Constitution Acts for guidance, they will find them generally vague and difficult of interpretation with regard to questions affecting prerogative, and that the Constitution Act of Victoria especially, so far from throwing light on the question of responsible government, mentions it merely in a marginal note, which is no part of the enactment. And if they look to the constitutional history of the mother country for precedents, they will find many which are of no value for guidance

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in colonial matters, and many that are contradictory and uncertain. He must recollect that the British Constitution is not like our own--a written document; that constitutional government at home is a matter of practice, not theory; and that most of the theories of modern writers on the subject have never been carried actually into effect, and probably never will be. True, Professor Goldwin Smith tells us that we have really had two constitutional Sovereigns in England --the first and second Georges; but he adds the somewhat unparliamentary explanation that they were fools as well as foreigners. (Laughter.) And my friend, Mr. Henry Taylor, of the Colonial Office, in the preface to one of his works, holds up Charles the Simple of France as the beau-ideal and prototype of a constitutional Sovereign, because he was so mad that he could not be held responsible for his acts, and at the same time was sane enough to feel for the sorrows of the people, and sympathise with them. (Renewed laughter.) But it seems to me -- although every theory may contain a certain amount of truth -- that this is carrying the doctrine to the point of absurdity, I believe it to be impossible for any one to accept the doctrine of the absolute nonentity of a constitutional Governor who really has a regard for the good of his country. My own conviction is, that a constitutional Governor, while bound to abstain carefully from anything like party politics, or from interfering in anything like matters of detail, must, in the performance of his duty, and under certain contingencies, be called upon to exercise an independent judgment, and act as he deems really best for the good of the country, (Applause.) And if you will allow me, gentlemen, at a moment when my administration is about to close--and when what I say may be looked upon as a dying declaration, and, therefore, may be taken on that account as true--to make one or two observations on the position of a constitutional Governor in this colony, I would venture to say that I think it would be better if a little more latitude were allowed to the exercise of negative power on the part of a Governor; if, for example, it were possible for him to refuse to acquiesce in a questionable appointment, without its being understood that the refusal should occasion a Ministerial crisis, or involve the whole machinery of Government in confusion, (Loud cheers.) Again, I think it would be better if a little more power of supervision over institutions intended for the moral and social welfare of the people--such as the penitentiaries, lunatic asylums, and gaols--were allowed to the Governor. (Hear, hear.) Really, very often the Governor has little or nothing to do, and there is a certain amount of danger that such institutions may be overlooked amidst the turmoil of party politics. (Hear, hear.) I will only say in conclusion, that as I accepted the Government of this colony with the firm determination to aid to the best of my ability in carrying out the experiment of responsible government which had then been established, so I have endeavoured, during my administration of the Government, to act impartially and in the spirit of the Constitution. (Great applause.) If I have been guilty, as no doubt I have, of sins of omission and commission--(no, no)--if I have erred, as, allow me to say, I know that I have, from lack of foresight or from infirmity of temper--if, in the discharge of what I conceived to be my duty, I have come into collision with those who thought they were doing theirs, I can only say, and I say it on the last occasion I shall

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probably have of doing so, that I bear no animosity to anyone; and I earnestly trust that on quitting this country I shall leave behind me not one single private or even political enemy."-- From the Melbourne Argus.

In reading such language as this it is difficult to realise the fact that the person who makes use of it, so far from requiring to be allowed a little more latitude in the exercise of negative authority, or that it "might be possible for him to refuse to acquiesce in a questionable appointment," was the only person in the colony who could legally, by himself or by his subordinates, exercise administrative authority in any shape whatever. Of his loyalty to the Sovereign who appointed him, his speech furnishes evidence of a curious character. Of his idea of the respect due to that Sovereign, in the person of her representative, the following fact furnishes curious illustration. In accordance with previous arrangement, Sir Henry Barkly attended at the Parliament House in Melbourne to prorogue the Assembly on an appointed day and hour, that hour being three o'clock; but at the moment of his arrival there was a party question in debate, and the announcement that his Excellency was in attendance was not allowed to interrupt it. Six o'clock arrived, and the debate was adjourned, to allow the members to go to dinner, the Governor all the while remaining in the waiting-room; at seven the debate was resumed, and at eleven o'clock the Governor, being still found, at the conclusion of eight hours, in waiting upon the Assembly, received notice that they were ready to receive him, and he went in and prorogued them accordingly. It would seem that a "constitutional Governor" must be insensible to personal humiliation, and that to act "constitutionally" was to show insensibility to the degradation in his person of the Sovereign whose functions he was delegated to perform. There is one point connected with the establishment of "responsible government" in probably all of the colonies which is worthy of a passing remark: viz., that among the first acts of a responsible Ministry has been an application to the Secretary of State to permit them to increase the salary of the Governor who consented to its introduction, 1000l. a year was immediately added to the salary of Governor Browne; a similar increase was made to that of Sir George Grey; Sir Henry Barkly was provided with the munificent income of 10,000l. a year, besides 5000l. a year in lieu of being provided with a house and establishment.

It is perfectly competent to any man, so far as regards his personal relations, to resume the conditions of his nonage, and to place his conduct and his affairs "under tutors and governors," binding himself by their action "whether it is, or is not

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in accordance with his own opinion on the subject in question," though the world would probably look upon such conduct as something like an admission of conscious imbecility. But it is not legally competent to a British Governor to pursue such a course, in relation to the powers committed to him for the government of a colony. These powers are granted by Act of Parliament to the Queen, with authority to delegate them to the person to be specifically appointed by Her Majesty to administer them. Not only is the power of delegation specifically provided for, but the very mode in which such delegation is to be made is also specifically defined. But in the New Zealand Constitution Act there is (with the exception of the power to appoint a Lieutenant-Governor to act in one of the provinces in certain contingencies) no power of delegation committed to the Governor, nor is any such provided for in the Queen's commission or instructions. His powers are specifically vested in himself, and he alone is accountable for their exercise.

Since the above was written, the despatches relative to New Zealand laid before Parliament on the 7th February, 1865, illustrate, in a still more striking manner, the meaning attached to the words "responsible government;" and would seem to render much that has been said superfluous, did it not seem desirable to show the gradual development of the system. First, these voluminous documents show that, by the adoption of Sir James Stephen's doctrine, that it was a folly to attempt to govern colonies at the distance of half the globe; and, the consequent attempt to get rid of the trouble of doing so, by "leaving them to manage their own affairs, and settle their differences amongst themselves," the Colonial Office has entailed a tenfold amount of labour upon itself.

The bulk of the correspondence from the colony between the 7th May and 7th November, 1864, is such as to preclude its examination by any one who has other business to attend to. Secondly; it brings responsible government to a test which proves the impossibility of conducting public business by such a system. Throughout these papers the Ministry claim the right to decide, and, having decided, to advise the Governor to act in conformity with their decision. This right to advise is only another way of expressing the right to direct, and the advice becomes law to the Governor.

Sir George Grey and the Fox Ministry had agreed upon the confiscation of the Waikato country. It would even appear that the Governor, in his first views, went beyond his Ministers

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in the extent to which he would carry confiscation. In page 6 of the papers of 2d March, 1865, the Colonial Treasurer reports a conversation between the Governor and himself, in which the following words occur:-- "His Excellency replied that he was aware of those views, and that he did not know that there was any difference of opinion between himself and his Ministers on the subject of confiscation; 'if anything,' he added, 'he went further than they did.' The Colonial Treasurer asked in what direction. The Governor replied-- 'You would give them (the rebel natives) back some of their lands, but I would not.' The Colonial Treasurer then asked what he would do, as, if the people had no land, they would be driven to despair. The Governor replied-- 'No; that would not be the other tribes, in different parts of the country, would give them land enough for their wants.'" The natives of that district, as well as of Tauranga, acknowledged that the land was forfeited as the result of conquest. They were totally disheartened by the victories of Sir D. Cameron in Waikato, and by the result of the action at Tauranga, under Colonel Greer, on the 21st June, 1864.

In a letter to Bishop Pompallier, dated August 9, 1864 (page 155 of papers of 7th February, 1864), William Thompson states:-- When the above prisoners (who had been sent by the Government to visit the rebel natives) came to me saying, give up Waikato,' I have fully complied with their proposal." In the report made by those prisoners, it appears that even Rewi, the chief most bent upon war, and other leading chiefs, were, at that time (11th June, 1864) "prepared to relinquish the whole of the Waikato country now taken and held by our forces." (Papers of 7th February, Pg 48.)

On the 6th of August Sir G. Grey reports that, "at a meeting, attended by all the natives in this district (of Tauranga) who have been in arms against us, with the exception of thirty-five, they made a public and absolute submission to the Queen's authority, unreservedly relinquishing the whole of their lands as forfeited." (Papers of 7th February, 1864, page 96.)

Such was the state of things when, in accordance with a desire expressed by the Secretary of State that the land should be obtained by cession instead of by confiscation, a controversy arose between the Governor and his Ministers which paralysed the action of Government when the utmost promptitude of action was a necessity. If the Government of the colony had been conducted according to the law of the Constitution Act,

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and the Queen's commission and instructions issued under the authority of that Act, this controversy would have occasioned no evil. The question would have been discussed in the Executive Council, and a few hours would have determined it. The Governor, if convinced that the views of his Ministry were correct, would have adopted and acted upon them. If he adhered to his own views, he would have carried them into effect. If there had been "divided councils," they would not have brought the public business to a collapse, nor would their existence have been known beyond the walls of the Executive Chamber. But under the system called responsible government the controversy is continued by "Memoranda," addressed by the Governor to his Ministers and by the Ministers to the Governor, "by means of adverse minutes (to use the words of the Secretary of State) treasuring up records against a future time, and involving great and deplorable delay in the conduct of present and pressing affairs." "I greatly regret," writes Mr. Cardwell, "that so much delay had occurred in issuing such a proclamation; and that five months after you had reported, in your despatch of 7th May, that you had thought it essentially necessary to let the natives know some terms upon which they might return to their allegiance, no sufficient steps had been taken for that purpose" (papers of 7th Feb., 1865, p. 200). At length, on the 25th of October, a proclamation was issued inviting the natives to come in, take the oath of allegiance, and agree to the cession of such territory as might be required of them. But it was too late. The natives, seeing the vacillation and indecision of the Government, allowed the time fixed by the proclamation to expire without paying any attention to it. They heard also that three regiments were to be immediately sent home, and that the remainder were speedily to follow. The invitation to cede land which they had frankly relinquished as the fruits of conquest implied a doubt of our ability to hold what we had taken, as well as a recognition of their power to withhold what they were invited to cede. The result was an entire change in their views. They considered that if the troops were able to conquer them, the Government was unable to rule them, and that, on the withdrawal of the troops, they would be able to re-possess themselves of the conquered country. They, consequently, biding their time, withdrew from further communications, stating to Mr. George Graham that they wished to live upon the most friendly terms with the Pakeha, but the Pakeha must remain upon his own land. These were the latest views expressed by William Thompson, the advocate of peace, as well

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as by Rewi, the Napoleon of the war. The proclamation having been issued contrary to the views of the Ministry, who had considered it "to be an imperative duty to record their protest against the introduction of a new form of government, under which native affairs would be administered partly by his Excellency and partly by his advisers" (papers of 7th March, 1864, p. 103). Mr. Fox and his colleagues lost no time in sending in their resignations. On the meeting of the Assembly a new Ministry was formed, consisting exclusively of Southern politicians. These gentlemen, whose families and property were safe from Maori violence, at once removed the offices of Government from Auckland, which, by command of the Queen, had been proclaimed the capital of New Zealand twenty-five years before; and professed their intention to dispense altogether with the services of the Queen's forces, and to rely upon the local force for the subjection of the rebellious Maories and the protection of the settlers. But, inconsistently enough with this professed policy, they determined to carry the war into a new district--a measure which, in the judgment of the General, required an addition to his force of 2000 men, instead of allowing any to be withdrawn. The Governor sided with his Ministers against the General; the General resigned in disgust; and the Northern colonists are waiting with anxiety the results of a policy which, if carried out, they look upon as intending their destruction; and, with not less interest, to learn what the Secretary of State will say to the Governor agreeing to a policy so contradictory of his expressed determination not to allow the blood and treasure of England to be expended in making fresh conquests. 16

Before the accounts of this new policy of a new Ministry

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had reached him, Mr. Cardwell had made the following observations on the limits of responsible government:-- "I have abstained throughout this controversy from entering into any abstract arguments upon the limits or responsible government, for which a time like the present is eminently unfit. But it is impossible for me to abstain from observing that if the doctrines of your Ministers, as now broadly propounded, are to be admitted. New Zealand must be regarded, not only as owning no dependence on the mother country and as having that inherent right, which independent countries exercise, of conducting their own affairs according to their own judgment, but as having this right coupled with the singular privilege of enjoying the services of a Governor, a General, and an Army furnished to them by this country. On the other hand, the mother country would simply be a tributary nation, affording at its own cost the means of carrying into effect the policy of the Colonial Ministers, without exercising any voice in the direction of that policy. It is sufficient to state these conclusions; it is not necessary to enter into any discussion of them. But while I thus avoid entering into controversial discussion, I feel it incumbent upon me to instruct you that the position thus laid down for you by your Ministers is not the position in which this country can permit Her Majesty's representative to be placed. In truth, the only satisfactory solution for the present difficulty is to be found in that spirit of reason, of good sense, and of cordial co-operation which I am sure will not be appealed to in vain." 17 After such a reductio ad absurdum of "the system called responsible government," would it not have been more to the purpose for the Queen's Secretary of State to have instructed the Queen's representative that the only solution-- not only of the present difficulties, but of the interminable difficulties which must always result from a policy which ignores duty, was a return to the mode of administration which he was required by the Queen's commission, and directed by Her instructions to pursue; and to which his oath to administer the Queen's Government required him to adhere?

It is time that some reference should be made to the actual results of this betrayal of the trusts of Government. When the British Government gave power to the local authorities of the colonies to deal with the waste lands, they made a sacrifice of the public interests to an extent which they could little have foreseen, and opened a door for corruption, such as the fondest speculator on the weakness of public functionaries never could

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have dreamt of. It would require a volume to trace the disastrous sacrifice of public property which has resulted in all the colonies from the subjection of so great a public interest to the ignorance and charlatanism of colonial-demagogues. The following passages are extracted from a published letter addressed in 1860 to Governor Gore Browne, entitled, "Illustrations of the System called Responsible Government." After having given the details of some extraordinary transactions in relation to land, the writer proceeds to say:-- "There may possibly be some minds so constituted as to believe that all these illegal transactions, entailing so grievous a loss upon the land revenue of the province, did not take place in order that the Superintendent and the former partner of the Attorney-General might benefit by it; that is, that the framer of the law, and the principal administrator of the law, did not unite in violating the law for so base a purpose as to benefit themselves or their friends; but that such benefit was merely a secondary or incidental result of a tender sense of honour, and a virtuous determination that not even law itself should stand in the way of justice. The point to which I wish to bring the question, and in order to which I have pursued this disgusting investigation, is this--whether 'the system called responsible government,' which was called for by the House of Representatives; to which the Secretary of State said he had no objection; and under which your Excellency consented to see the colony governed, affords the same security to the public, that their affairs shall be as well and honestly conducted, as they would be under the real, and not the nominal, administration of a Queen's Governor. I put it to your Excellency whether there is any interest in England sufficiently powerful to have saved a Queen's Governor from ignominious dismissal who had been the agent in such transactions as these--against whom there was one-half the evidence of corruption which is evidenced by these transactions--or, even supposing he could have been cleared of corruption, who could have been capable of such sottishness as to violate the law for such an occasion as this?

"Having brought the case to this point, let us examine whether even these proceedings are exceptional, or whether such proceedings are not rather a part of the system regularly pursued: in other words, whether. the responsible government does not actually maintain a systematic violation of law. Your Excellency is much better aware of the state of things in the Province of Wellington than I am; I, indeed, have had little opportunity of knowing in detail what has been going on

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there. Of this much I am aware; that the Superintendent, who is entrusted with the custody of the public money of that province, to be expended by him for the purposes to which it shall be appropriated by an act of the Provincial Council, has, for a long period--probably not less than two years--been spending the public money without an appropriation act--that is--has been guilty of a continuous breach of the trust reposed in him by law. ** Is it any excuse that he has spent the money, as he alleges, for the good of the province? Who is to take his word for this? Was so impudent an apology ever offered for a criminal act--nay, for a systematic perseverance in criminal conduct, before the invention of 'the system called responsible government?' Doubtless, your legal adviser has told you that the Constitution Act has provided a remedy for this--that the Superintendent is removable by the Governor on a vote of the Council. But is it not evident, that if those who refuse the money, to be expended by him, were to petition for his removal on this ground, their own hands would be tied up when their own turn should come.

"It is very clear the public service is as little in the mind of

** By a return to an order of the House of Representatives, dated 23d October, 1860, "for a statement of the unauthorised expenditure incurred by the general Government during the period commencing on the 1st July, 1866, and ended on 30th September, 1860. Also a return of the amount of the unauthorised expenditure of the several Provincial Governments for the same period, or up to the latest date." (Signed) C. W. RICHMOND.

Dated Treasury, Auckland, 10th June, 1861.

It appears, that between those dates the general
Government had expended without any legal authority
the sum of

£20,245 12 9

And under guarantee of resolutions of the House
of Representatives the further sum of

23,477 9 8

Besides "expenditure in connection with the native
insurrection provided for by loan of £150,000,"
amounting to

25,043 14 2

That the Provincial Government of Auckland had
expended without legal authority

22,851 10 9

That the Province of Wellington, to 31st
December, 1860, had expended without any legal
authority the sum of

86,603 13 10

And under guarantee of resolutions of
Provincial Council

17,088 4 11

The Provinces of Hawkes Bay and Otago had
respectively expended the sums of £12,621 2s. 3d.
and £10,075 7s. 10d., and the Province of
Marlborough £175 7s. 8d., without legal authority.
From the provinces of Nelson and Canterbury
there were no returns.

It appears by the financial statement of the
Colonial Treasurer, received while these pages
are going through the press, that the
"unauthorised expenditure" of the general Government
during the two years from 1st July, 1863,
to 30th June, 1865, amounted to

161,610 0 0

Of which sum about £55,000 is said to
have been covered by resolution of the House,
authorising the removal of the offices of
Government from Auckland to Wellington.

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the party who is struggling to obtain power over the public money, as in that of the party who is determined to retain and use that power, although he can only do so by a systematic violation of the law. The Constitution Act requires that the proportion of the general revenue which falls to the Province of Wellington should be paid to the Superintendent of that province. But the question naturally arises--do not those who pay public money into the hands of a person who is notoriously putting it to an unlawful use, make themselves accessory before the fact to the offence which is committed? Or, if not, is the Constitution Act and the 'system called responsible government,' grafted upon that Act, to be looked upon as anything else than the framework of a conspiracy to defraud the public of their money and their political rights under pretence of governing them? Everything is made to work in a circle. One abuse is perpetuated by the introduction of another abuse. The abuses of the Superintendents are balanced by the abuses of the general Government, and each party, in sparing the misdeeds of the other party, finds an indemnity for its own. Everything is allowable that can be covered by the vote of a majority. This is 'responsible government!' The complicated provisions of the Constitution Act seem intended to enable the functionaries who act under it to bring forward one section of the Act to justify the violation of another section of the Act. I confess, when I consider that the Constitution Act of New Zealand, in what distinguishes it from all other Constitution Acts, was the work of Mr. Edward Gibbon Wakefield. I am inclined to believe that these were the means, joined to the system of 'responsible government,' another invention of the same distinguished artist, by which he intended to keep the administration of the colony in his own hands, and in the hands of his coadjutors.

"But to turn from Wellington, of which I know little, to Auckland, of which I know much, I beg your Excellency's attention to the proceedings of the Superintendent during the last twelve months, and to the proceedings of the Provincial Council during its various sessions. You will find the violation of the law assume a new and more remarkable phase. On a former occasion I brought to your Excellency's attention the fact that the present Superintendent, while locum tenens in that office, between a dissolution of the Council and a new election, spent the sum of 26,000l. of the public money, without legal, authority; a large portion of which was spent upon what were called public works, but which no one could deny were exactly

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such public works as would secure his own re-election to office, and the election of those who would support him in it. He has now gone a step farther. He has stretched beyond the measure of the Superintendent of Wellington, and of his own measure in previous years, and has actually taken the money which was appropriated by law to one purpose, and applied it to purposes for which it was not appropriated. Nor was this done to a trifling amount. The sum of 13,000l. was voted for harbour works, contingent upon the money being raised by debentures upon the security of the harbour endowment. The money was not raised by debentures, and yet the Superintendent actually expended 21,000l. upon these works, thus, by a double breach of the law, withholding the money from the purposes for which it was appropriated by law, and expending it upon purposes on which it could not legally be expended. The Council not only virtually acquiesced in these proceedings, but seemed to receive with approbation the observation of a member that every Government must violate the law--that he would be sorry to see a Government that would not violate the law. The Superintendent of Auckland stretches beyond the measure of the Superintendent of Wellington, but, what is more, he carries his Council with him. It would be more economical and productive of less injury to public morality to leave the expenditure of the public money to the will of the Superintendent. The corruption of one is a less evil than the corruption of twenty. Less money would be wasted in allowing the Superintendent to effect his purposes without any pretence of control than in making it necessary for him to bring a majority of the Council to sanction or acquiesce in his proceedings. The Provincial Council has become a false pretence, a piece of machinery which the large funds entrusted to the Superintendent enable him to work for his own purposes. The elective

Superintendencies and Provincial Councils are parts of the Constitution Act, which might exist without 'the system called responsible government,' but, in conjunction with it, they render misgovernment complete--an entire perversion of the functions of government from the true purposes of government to serve the selfish and ambitious ends of those who have got possession of the public offices and the command of the public revenue.

"I shall not trouble your Excellency with any more illustrations of the working of 'responsible government.' I have shown the dealings of its members in cases where they had to decide between the interests of themselves and their friends, and the interests of the public; and in other cases where they

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had to decide between the public interests and the interests of parties indifferent or obnoxious to them. It is difficult to say which class of cases is most instructive. I have also shown, in few words, how harmoniously they have worked with the Superintendents in producing and perpetuating abuses, and in making the violation of the law the chief means by which the Constitution is kept in action. Is it worth while to enter into the question, whether the system is disgraced by the men, or whether honest men could be employed under such a system? Can anything be more clear than this, that with the command of 280,000l. or 300,000l. a year, the least scrupulous will be the most successful in purchasing support? I have before adverted to a supposed necessity as the only excuse for continuing such a system. Whence is the origin of such a dogma? The true questions are these:--First, is the British Government unable to rule a dependency of 100,000 people? or secondly. Is it entitled to withhold the protection of British laws from any class of the Queen's subjects? Whether the British Government is entitled to throw off a class of British subjects, and give them what is popularly called 'self-government,' is a constitutional question of deep interest. In such a case, however, they could not refuse to the colonists the right of settling in a Convention the Constitution under which they would be governed, and of choosing the men to whose government they would submit. In such a case nothing would remain for any British subject who objected to the new Constitution and the new Government but to leave the colony. But while we remain British subjects, while the colony is, even nominally, ruled under a Governor appointed by the Queen, it is riot competent to the British Government to withhold from us the protection of British laws and of the Queen's authority, against men who oppress us by enacting laws which (being repugnant to those fundamental laws of the realm which constitute the bond of allegiance and protection between the Sovereign and the subject) have no legal validity, and who may commit the most flagrant breaches of trust with impunity, because they are made responsible, not to the Queen's Governor, but to a majority of a representative Assembly. "

Since the date of these observations, the state of things which they describe is far from being improved. Moral considerations appear to have no place with administrators of the class which "responsible government" brings into office. The obligation of contracts is only so far observed as it serves to consolidate their power. Public faith, as might a priori have been

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predicated, cannot co-exist with a Government which can only be established by the abnegation of moral obligation, and which can only maintain itself by creating and controlling votes.

Two remarkable appeals to the Privy Council from New South Wales, afford good illustrations of this. The one is an appeal from the decision of the Supreme Court of that colony on the part of the Government in a case, the following brief notice of which is quoted from the Sydney Morning Herald: -- "In the case of Dumaresq v. Robertson, decided by the Supreme Court during the week, a principal question was, whether a promise of a grant, made by Governor Darling-- when the Governor for the time-being represented only the Imperial Administration--was binding upon the Governor of the present day, who acted under the advice of Ministers responsible to the colonists alone. The Court held that it was binding. The only legally recognisable government was that of the Sovereign, locally represented, and a promise made in the name of the Sovereign at one time was binding at all times thereafter. And as the Queen granted land by her governors, the latter must be presumed to have, inherently, the power of negotiating for grants, and therefore of making promises."

The other was that of an appeal against the legality of a municipality, established (by proclamation) under a colonial enactment, whereby the inhabitants of a town on one side of a navigable river, occupying small portions of land, would be able to lay the burden of local taxation almost exclusively upon land belonging to an individual whose land was situated on the other side of the river, and which was only suitable for pasture; and could derive no benefit from the outlay. The enterprise was suggested by a leader of the Demos, who denounced the proprietor of the land as a "'Mammoth Monopolist,' who occupied land upon which 50,000 people might be settled." This land he described as a "veritable diggings under the Municipal Corporations Act, which would require no expensive machinery," "the only thing to be crushed there being a miserable earthworm, which can be done by the simplest possible process--the mere vote of the Shoalhaven Municipality." The rate, which would amount to 2s. 6d. a year on the occupier of a town lot, would, it was asserted by the party who recommended this act of extortion, amount to 2250l on the "Mammoth Monopolist." But the influence of this leader of the Demos was sufficient to make or unmake a Ministry; of so little value are laws and Constitutions of Government, unless the governing power is administered with integrity.

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In both cases the Privy Council decided in favour of the parties oppressed. These parties were men of wealth and standing in the community, and were able to defend themselves, but how would it fare under such Administrations with individuals too ignorant to understand their rights, or too poor to maintain them?

The financial results of "responsible government" so-called in New Zealand are worthy of some further illustrations. In order to a just appreciation of these, it may be of use to advert to the expenses of government in other countries. In the United States of America, before their late troubles, there existed, as in New Zealand, two Governments--the general Government of the United States, and the distinct Government of each separate State. By a document "printed for the Senate" in 1854, it is stated that the whole charge of the double government only amounted to 17s. a head of the population--viz., of the government of the United States, including army and navy, diplomacy and foreign relations, about 8s.; and of the State or domestic government, including "clergy, road-building, militia, poor-rates, town expenses, schools and county expenses," about 9s; and these charges had nearly doubled in the preceding twenty years, for in 1832 they amounted to only 9s. It appears from Mr. Montgomery Martin's "History of the British Colonies" that the rate of taxation in the North American Provinces, before the introduction of responsible government, was in Canada about 7s. a head, in Nova Scotia about 5s., in New Brunswick about 10s., in Prince Edward's Island about 7s. The whole government of France, including its immense army and navy, did not at the same period (1852) exceed 1l per head of the population. In 1863 Mr. Gladstone,. the Chancellor of the Exchequer, stated in the House of Commons that in Ireland the taxation amounted to 1l. 2s. 10d., and in England to 2l. 11s. 7 1/2d., per head. Since the days of Adam Smith a freedom from taxation in new colonies has always been considered as, next to the abundance of land, one of the principal elements of their prosperity. In the colonies of New Zealand, which, of all others, have suffered most from empirical government, the rate of taxation by Customs duties had reached nearly 2l. a head before the introduction of representative institutions. But, in a financial statement of the Chancellor of the New Zealand Exchequer, the Customs revenue for the year 1862-63 is estimated at 413,000l. From the same statement it appears that "this estimate of 400,000l. gives an average receipt of 4l. a head

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from every man, woman, and child in the colony;" in addition to which the provincial taxation amounted to about 10s. a head; and, in still further addition to the revenue which was thus raised, there was an income of 285,000l. from land. Since then, an addition of 30 per cent, has been made to the Customs duties, which will raise the taxation to the unprecedented rate of 6l. a head. 18

But all this was inadequate to meet the purposes of "responsible government." Not only the general Government, but most of the provincial Governments, have mortgaged the property of the colony by borrowing money to a vast, and what would almost appear to be an incredible, extent; the Acts passed by the general Legislature having authorised the raising of loans to the amount of not less than 3,000,000l., and the ordinances of the Provincial Councils having, though illegally, made provision for the raising of upwards of 1,500,000l. by the issue of debentures.

With regard to the borrowing of money by the provinces, the Constitution Act has the following provision:--

"It shall not be lawful for the Superintendent and Provincial Council to make or ordain any law or ordinance for regulating any of the current coin, or the issue of any bills, notes, or other aper currency." (Clause 19, sub-section 3.)

In proposing to his Council an ordinance to authorise and regulate the issue of debentures for the sum of 500,000l., the Superintendent of the Province of Auckland stated that he had obtained the promise of the "responsible Ministry" that, if passed by the Council it should receive the Governor's assent. The ordinance passed the Council, and received the Governor's assent. By an express enactment of the Constitution Act this , was an illegal ordinance; but so little is law regarded in the colony, that the debentures were all purchased by a local institution, of which most of the members of both Legislatures and Governments were proprietors. The ordinance could have no effect without the assent of the Governor, but in each of the two previous changes of "responsible Ministers," the change had been effected by a majority of one vote. The Superintendent and one of his subordinates being members of the House of Representatives, it is esy to understand what the res dura et novitas regni of a Ministry depending upon a majority of one

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may compel them to submit to. Such are some of the financial results of the system called responsible government, and, it may be added, that such or similar results are not altogether peculiar to New Zealand, but common to other colonies into which the system has been introduced. **

When any change is proposed in the Constitution of any one of the United States of America, there is a special "Convention" for the purpose, at which deputies are elected to consider the specific changes proposed; and in the Constitutions of some of the States there is a special provision for a periodical Convention to consider whether any, and, if any, what changes may be expedient. There is something very absurd in the British Government professing to have acted upon the alleged wishes of the colonists in giving them a Constitution when not one colonist in a hundred ever heard anything of the matter until the two or three persons who pretended to represent them had accomplished their designs.

On the other hand, nothing is more remarkable than the way in which the home Government has set aside the only legitimate expressions of the wishes of the colonists of the Northern province which have been sent to England. The city of Auckland was, by an express instruction of the Queen, communicated through Lord Stanley when Principal Secretary of State for the Colonies, proclaimed, in the most public and authentic manner, to be the capital of New Zealand. Had the Provincial Council of that province been actuated by ambitious motives, they would have abstained from any proceeding which tended to deprive the Province of Auckland of its superiority as the seat of the general Government for all the provinces. They sought not to continue such a superiority; they sought to have the management of their own local affairs without the interference of strangers. They set forth in their petitions, sent to the Queen and both Houses of Parliament in 1853, 1855, 1858, and 1862, the anomalous and unprecedented character of the Constitution, which confederated six colonies, each as distinct from the rest as any colony that was ever planted from all

** In 1863 the debts and rate of Customs duties of the several Australian colonies per head of the population were as follows:--

Rate per Head
of Debt.

Rate per Head
of Customs Duties.

New South Wales

£11 5 6

£1 15 3


14 7 6

2 6 3


13 10 0

2 6 4

South Australia

6 3 6

17 0

New Zealand in 1865, about

45 0 0

4 9 11

Great Britain about,

24 0 0

2 11 7 1/2

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other colonies under one general Government and Legislature; which general Government and Legislature had power to abrogate the acts of the local Legislatures and authorities of the individual provinces, thus subjecting the interests of the inhabitants to be dealt with by a majority of persons who had no interests in common with theirs, but who had interests antagonistic to theirs.

They showed that each province was capable of maintaining a sufficient Government for the management of its own affairs; that while the colonies were dependencies of the Crown the (so-called) general Government could exercise no functions of a general or national character, nor any other functions which each province was not more capable of exercising for itself; that it was not simply a useless and uncalled-for institution, but that its existence was incompatible with the true objects of government; its only effect being to create a governing class, which could only exist by complicating public business and rendering the true objects of government impossible. 19

When the Constitution Act of New Zealand was passed in 1852 the Parliament was in "a state of dissolution." Sir John Pakington, at that time Principal Secretary of State for the Colonies, threw himself on the forbearance of the House, representing the necessity of passing the bill, or of renewing the Act, by which the previous Constitution Act giving representative institutions had been suspended; but stating that if it should be debated in committee on every clause which any member might object to, there could be no hope of its passing before the dissolution.

There was a general agreement amongst the members who spoke, to allow the bill to pass, however much they might object to some of its peculiar provisions. What was chiefly insisted upon was its approval by those who were said to represent the wishes of the colonists. But of those provisions the colonists of Auckland, whose number was equal to the average of two of the other provinces, being one-third of the whole, knew nothing until it was too late to remonstrate. The baneful influence of Mr. Gibbon Wakefield and his associates of the New Zealand Company was still in the ascendant in the Colonial Office. On going into committee on the bill, Sir John Pakington presented several petitions. "The last of these petitions," he said, "was from Mr. Gibbon Wakefield, the prayer of which was particularly directed to the question whether there should be provincial Legislatures, or whether

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there should be a Central Legislature, and Legislatures for particular localities. With his usual ability, Mr. Wakefield discussed the subject, and earnestly prayed that the bill, as it stood, might pass into a law."

He subsequently stated that:--

"The case had been so strongly put by Mr. Gibbon Wakefield, that he hoped the House would permit him to refer to an extract."

With respect to Mr. Gladstone, "who, if he rightly followed the right honourable gentleman in a former debate on this subject, expressed great objection to the course he (Sir J. Pakington) had taken of establishing a Supreme Legislature in the colony.......He could not but think that, for the future welfare of those colonies, there should be one Supreme Legislature, whose power shall be superior to those minor bodies, who ought to deal only with the interests of their own localities, subject to the paramount authority of the Central Legislature." "Having had opportunities of consulting parties directly connected with Nelson, Wellington, Otago, and Canterbury--namely, four out of six localities."

He agreed with the noble lord who preceded him (Earl Grey), "that anything like an elective Executive was unknown to the British Constitution;" but was afterwards induced to make the office of Superintendent elective.

In Mr. Gladstone's speech is the following passage:--

"Take, said the honourable member for Southwark (Sir W. Molesworth), the Central Legislature, and make it the fountain of power; on the other hand, I say let the district Legislature be for New Zealand, and, under its circumstances, the fountain of power. But I do not think this bill proceeds consistently either on the one principle or on the other; and concurrent jurisdictions, I must confess, are to me subjects of apprehension and alarm. A concurrent jurisdiction in the business of legislation means uncertainty, conflict, and confusion. The overriding of arrangements already made, under authority deemed competent, by extraneous power, must ever lead to annoyance and angry feeling. What reason can there be if these district Legislatures are fit to deal with the subjects that come before them; what reason can there be that their decisions should be subject to revision?"

Sir William Molesworth said "that the General Assembly would ultimately eat up the Provincial Legislatures and reduce them to municipalities." The Duke of Newcastle, that "either the Central Government would swallow up the six minor Legis-

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latures, or that the six minor Legislatures would eventually render useless and cause the abolition of the Central Legislature." It does not appear to have occurred to any one that a dependency could have none other than local affairs to administer, without usurping, under the term of a "general Government," the functions which belong exclusively to the Sovereign Government of the Empire; or that the central and provincial authorities would in the long run unite harmoniously in a general system of corruption, mutually condoning the illegal action of each other. 20 But the House being "in a state of dissolution," the Act was permitted to pass with all its acknowledged imperfections.

Mr. Gladstone seems to have been in favour of yielding still more power to the colonists, eulogising the first Constitutions of the Puritan settlements of New England, one of which he referred to as providing a Governor for one year, after which the colonists were to elect their own Governors. But he overlooked the duty of protecting individual colonists from the tyranny of local authorities. Grahame 21 gives some instructive illustrations of the state of things which was brought about by the Constitution he eulogised. In 1631 "the Assembly of Massachusetts enacted that none but Independents should hold office in the colony, or act as jurymen; and it banished shortly afterwards Roger Williams for his religious opinions. It inhibited smoking under a penalty, but permitted the practice as soon as some of the Independent Ministers had given way to that indulgence. Jesuits and other Romish priests were subjected to banishment, and, in case of their return, to death. This cruel ordinance was afterwards extended to the Quakers, and all persons were forbidden, under the severest penalties, to import any of 'that cursed sect' or of their writings into the colony. All persons were forbidden to run or even to walk, except 'reverently to and from the church,' on Sundays, or to profane that day by sweeping their houses, cooking their victuals, or shaving their beards. Mothers were forbidden to kiss their

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children on that day.. Pecuniary mulcts were imposed on every person 'observing any such day as Christmas.' A convicted criminal known to have had accomplices, and refusing to disclose them, might be subjected to torture. Dancing was proscribed; and kissing a woman in the street, even in the way of honest salute, was punished by flogging."

In 1759 a British ship of war was stationed off the coast of Massachusetts for the protection of its trade during the war with France. The captain had left his wife at Boston. Returning thither on a Sunday after a long cruise, his wife rushed down to the beach to meet him, and they embraced each Other upon meeting in the open street. For this breach of the laws and supposed desecration of the Sabbath, the captain was summoned before the magistrates, gravely rebuked, and sentenced to be flogged, which punishment was inflicted upon him accordingly; a compliment which, as the story goes, the captain returned by inflicting the same number of lashes to which he had been subjected upon each of the magistrates at the conclusion of a farewell entertainment given on board his ship on leaving the station. Such, even amongst the Pilgrim Fathers, were some of the consequences of not maintaining the law of England, and administering the government according to constitutional precedent. (Grahame, Book II., cc. 2 and 3, and Appendix.)

In a speech, on moving for a Committee of the Provincial Council of Auckland to prepare their third petition to the Queen and Parliament (that of 1858), a member of that Council is reported to have thus expressed himself in relation to the Constitution Act:-- "Now, sir, it is. time that we should endeavour to trace something of the history of this strange and anomalous machinery of government in order to account for so extraordinary a departure from all precedent in colonial administration. I hold it, sir, to be impossible that any man, or any set of men, sitting down to frame a Constitution for an infant colony, and having only, in his or their mind's eye, the peace, safety, and prosperity of the infant community, could ever have contrived such a Constitution as this. But I can imagine an association of adventurers, willing to undertake the toils of government, and anxious that the infant community should enjoy the advantage of their united wisdom and talent, framing such a Constitution as would give full scope to their endeavours to manage the affairs of a colony with profit and advantage to themselves. We all know that Auckland was settled by a fortuitous concourse of individuals, each pursuing

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his own objects in his own way. We know that the other five colonies were organised by a company or association; in some cases by the aid of subordinate associations, each of which had its own peculiar crotchets for the management of immigration and the settlement of the colonists; its own schemes for establishing 'a sufficient price for land,' 'and a sufficient remuneration for labour;' and that the circumstances under which Auckland was settled were loudly complained of as inconsistent with the success of those crotchets and organisations. My time forbids me to refer more at length to these organisations. But I will ask the Council to suppose that the whole of them were the contrivance of one of the acutest minds of the nineteenth century: of a person who, judging from his antecedents, was not likely to be prevented by an over-conscientiousness from attaining his ends. And that all their movements were regulated by the same skilful hand; and all directed to give the most extensive field of operations to those who had shared in the venture, and were waiting to undertake the duties of government, and to make such provision for those duties as 'might not disappoint the reasonable expectations' of those who considered themselves 'the founders of the colonies.'" After quoting from a published letter from Mr. Gibbon Wakefield to the Duke of Newcastle, complaining that the General Assembly should meet at Auckland and not at Wellington--stating that "it became him as one of the principal authors of the Constitution, and as one of the principal founders of the colony, to declare publicly against the present policy of the Government"--the speaker proceeds:-- "Can any member have now any difficulty in understanding the net-work of contrivances by which we have been enveloped, and the motives which led to them. Let the seat of Government be transferred to Wellington as the most central position in the islands; let the revenue of all the colonies be collected into one common purse; let that purse be placed in the hands of the principal associates in the scheme; let what may remain of it, when their objects are accomplished, be made a stake to be gambled for by the election of parties to spend it; finally, let the Queen's representative be denuded of power to interfere with the working of the machinery under a system which is called responsible government; and then let us ask ourselves the question whether the Prince of Schemers has not exceeded all his former efforts in ingenuity, by making use of a community to aggrandise the leaders, and maintain the largest number of political adventurers associated with him which the community could,

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by any means, be made to support. The Abbe Sieyes said, when the first French Revolution was accomplished, that the difference between the new state of things and the old was this:-- That whereas, before, the Government was everything and the people nothing; now, the people was everything and the Government nothing. Sir, this Constitution reverses the picture, and places this community in the position of the French people under the old regime, who were divided into 'un gens corveeable et taillable"--a class whose part it was to labour, and to bear the public burdens; and a class whose privilege it was to lay on those burdens, and enjoy the fruits of those labours. I believe, sir, that whoever enters into the investigation the most deeply, will be the most fully convinced that, in the history of Governments, ancient or modern, the ingenuity of men has not been able to contrive a system that enabled one class of the community to constitute themselves a governing class, so disproportioned to the rest of the people; 22 or one which consumed so large a proportion of the earnings of

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industry; or one which, so far from promoting the peace and well-being of the community, did more to stir up party strife and ill-feeling, and to corrupt and debauch the people, as this Constitution of New Zealand with its responsible government."

Another extract from the same speech will not be out of place as serving to illustrate the view taken of the injustice under which the colonists of Auckland were suffering, and the struggles which were made to obtain the restitution of their constitutional rights:-- "Having entertained these views from the first appearance of the Constitution Act, my very first act, on becoming a member of the first Provincial Council, was to submit a motion identical in purpose, if not in terms, with the motion I am about to propose. The motion was carried unanimously, though the adoption of the petition was only carried by a majority of ten to eight. I could very satisfactorily explain the reason of this difference, but I will not now detain the Council by doing so. The answer was that the petition had been presented to the Queen, and very graciously received, but that Her Majesty had not been advised to give any orders respecting it. Again, sir, as you and some of the members of this Council are aware, I brought the question before the Council in the session of 1855, on which occasion the motion was agreed to and the petition adopted unanimously. The answer was the same as in the former case, in the sterotyped form when the Government have not made up their minds one way or another. I know, sir, that, in the view of these discouragements, there is a very general belief that any further attempts to procure a change of the Constitution will be unavailing. I do not in the slightest degree partake in that belief, I believe in the omnipotence of truth, and that those who adhere to truth and will pursue it will finally triumph over injustice. I hold, sir, that the people of this province are treated with the greatest injustice by the Constitution Act, and that all that is required to get rid of it is that every man should satisfy himself, first, what are the rights to which he is entitled as a British subject, and then express his determination by peaceable means to maintain such rights as we still possess, and to recover those rights of which we have been defrauded by this Constitution, in order to obtain that due share of the liberty and protection which the Queen is bound to afford to all her free subjects, whether in Great Britain or in colonies planted by British freemen. I use the word freemen with emphasis, for this colony was for some years ruled as a convict colony--I

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say deliberately, worse than a convict colony--and that the Constitution under which we are now governed is, as I am about to show, a false pretence of government and representative institutions, according to the laws and customs of British freemen. There are two ideas of what we call a Government, the one or the other of which is impressed upon our minds according to the point of view from which we regard it. In old countries-- take as an instance that of England--the origin of Government is shrouded in the shadows and mists of a thousand years; hereditary institutions have conferred hereditary privileges, which have acquired the force of rights, and have so long and so wisely been considered as rights, that no good man ever thinks of calling them in question. We say the Queen has a right to her throne, the peer to his peerage, the member of the House of Commons to the seat in the House of Commons to which he has been elected; and we are ready to forget that these privileges are, in fact, trusts held for the benefit of the people, and not for the gratification of pride or the selfish ambition of those who hold them. And, sir, while these trusts are administered with integrity the waves of faction will dash in vain upon the foundations of the British Constitution. They are at once the glory and the safeguard (et decus et tutamen) of the Empire. I consider that every British subject has a right to be proud of the Constitution of his country, which has long stood amongst the nations as a monument of the wisdom of ages, combining the stability of the Throne with the liberty of the subject. This, sir, is one idea of a Government--the idea of an institution which one regards as a thing established as much as the return of day and night, of summer and winter. We think and speak of the Government of England as we do of the palaces of its Sovereign, which, indeed, change their inmates, but are enduring; or its oaks of a thousand years, which cast their leaves and renew their verdure, but have not begun to decay--an institution which has its faults, as everything human has its faults, but whose faults are like the dust which gathers in the corners of its palaces or the mosses which cover the trunks of its oaks.

"There is another idea of a Government which reduces it to its elements. Population--to use the language of the economists--begins to press upon the limits of subsistence, the country is too strait for its inhabitants--the mother hive casts off her swarms--a new community commences the race of existence in a new country, unfettered by the restraints of the old, yet enlightened by its experience--with all the advantages

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of ripe civilisation, and yet free from the abuses which spring from the crowdings and competitions of society. This, sir, is a stage in the progress of human affairs which opens a new view of the institutions of government, and affords a rare opportunity for reducing its powers to their elements--for casting off the clogs and abuses which may have accumulated upon the institutions of the old country, and separating the essential functions of government from those which corruption may have contrived for the exclusive advantage of its administrators. The question arises, in what relation does the swarm stand to the hive from which it has taken its flight? It is not my intention to enter into any disquisition on the abstract rights and duties which belong, respectively, to the mother country, and the new community which has acquired a separate existence. I shall not go for illustration to the history of ancient colonisation, or of modern European colonies proceeding from other countries than England. To men who are themselves colonists, no inquiry could, rightly considered, be more interesting; but our time will not admit of it--and as regards ourselves, this relation has been settled for two hundred years. I hold it to be the duty of every British colonist to study the history of British colonisation. It will be found pregnant with lessons of instruction. Beginning with the first dawn of British emigration, and tracing its progress from the first settlement of the Pilgrim Fathers in New England, down to the establishment of the colonies of New Zealand, he will witness in operation every variety of human motives, and their corresponding results. At one end of the scale he will see a society of men laying the burden of government upon those of its members who were best qualified to bear it, and its necessary functions performed as a duty--the tenure of office not aspired to as an honour, or sweetened by its rewards--the wants of society claiming the aid of its members, and each member rendering his aid as a duty to the society. Take the following extract from the short and simple annals of the Pilgrim Fathers:-- 'After having been chosen to the office nine years in succession, Governor Bradford was, by reason of his importunity, let off from serving the tenth year, without being fined.' Here is the perfect development of the idea of government, naturally arising from the condition of human affairs, springing from, and adapting itself to, the wants of the community. At the other end of the scale we shall see a state of things which is altogether unparalleled at any intervening period: a governing class establishing and maintaining themselves at the expense of

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the community; more numerous, probably, in proportion to the population, than is to be found in the oldest and most corrupt countries, where the complicated interests of a crowded population require institutions which are unnecessary in a young community."

The leaders of the New England settlers were men with whom devotion to God, and the duties which, according to their views, sprung from it, were paramount. The prime mover of the Southern settlements of New Zealand was of a different character. He acquired his ideas of colonisation from his communication with convicts who had returned from the penal settlements of Australia. After three years' imprisonment in Newgate, he came out, as a late friendly notice of his life tells us "like Napoleon III., from the fortress of Ham, prepared to effect great things. "

The various Constitutions which have been framed by a departure from the old principles and analogies of provincial government have, year by year, shown their instability; and the home Government, in the same spirit of so-called liberality, which led it to depart from those precedents of colonial administration that have stood the test of two centuries, has yielded from time to time to the suggestions of the democratic leaders, in altering, or giving power to the colonial Legislatures to alter them. In the colonies of Victoria and Tasmania the Legislative Councils, instead of being nominated by the Crown, have become elective. In New Zealand various changes have been effected in the Constitution Act to accomplish some temporary expediency of the men in office. But the effect of these alterations has almost invariably been, by increasing the power of the majority, to enlarge and complicate the machinery of Government, and to aggravate the confusion which seems the necessary result of the abnegation of duty, and the substitution of the will of the majority for those principles of right and wrong which are unchangeable, and are universally acknowledged.

In New Zealand, the machinery of Government, under the Constitution of 1852, altered, as it has been from time to time to suit the temporary expediency of the holders of office, is of so complicated and extensive a character as to require all the talent which its administrators could command to keep it in action; and to adjust the movements of its various parts, confining their attention to the movement of the machinery, and losing sight of the results which it ought to produce. It has proved to be the very materialism of politics--a body without a soul--a maximum of forces producing a minimum of results.

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In the course of a few years six distinct colonies were planted in those islands, each as distinct and separate from the rest as any one colony which was ever planted was from all other colonies. According to the principles of British administration and to the ancient analogies, each of these colonies should have had its Governor or Lieutenant-Governor, its Legislative Council, and its House of Assembly; and at the period when the present Constitution was enacted, the least considerable of those six colonies was as capable of maintaining such a form of government as many colonies which have enjoyed it for upwards of a century. But the overriding powers of the general Government and Legislature have made it impossible to administer in any of the colonies the simple functions which belong to a subordinate Legislature, and, which, if left to their operation, could not fail to produce the fruits of peace, order, and well-being in the community.

In such a group of colonies as those in New Zealand there is one object, and but one, which requires an overriding authority--that is, the power of directing the Queen's forces in the event of war. It would clearly be inexpedient that the officers in command of the troops or naval forces on a distant station should be subject to the contingency of conflicting applications from different Governors. It is therefore necessary that there should be a Governor-General, to whom alone such applications should be addressed; and this is in strict conformity with established usage. There is a Governor-General in the various groups of the West India Islands, but his civil functions are restricted to the administration of the affairs of the principal colony which is chosen for his residence. Sir William Denison was Governor-General of all the Australian colonies, but he was instructed to avoid all interference with any other of them than New South Wales, even should he happen to be present in any of them. It has been affirmed that it is necessary that there should be one policy for the management of the natives of New Zealand, and that, therefore, they should be under one authority. It is this very "policy" which has created confusion amongst the natives, and led them to combine against the Government. The presence of natives in any settlement is the strongest reason why there should be in that settlement a paramount authority at once, and without delay, to deal with difficulties as they might arise.

The fallacy involved in the adoption of the suggestions of the Democratic leaders as the wishes of the colonists, who are assumed to be the best judges of their own interests, is not

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greater than the fallacy, almost amounting to a superstition, that the concessions and franchises which are yielded by the sovereign power, in supposed or real compliance with those wishes, are to be considered in the light of vested rights and privileges, which cannot be revoked or annulled; or as involving "an engagement to which it is necessary strictly to adhere." If the wishes of the colonists are to be the sole guide of the Imperial Legislature, in providing the institutions of government for the colonies, those wishes should be ascertained by some other process, or through some other channel, than the suggestions of a few individuals whose ambition is to be served by their adoption. But if the end and aim of government is the peace and welfare of the community, the delegation of authority, under whatever form, can be looked upon in no other light than as a trust for the purpose of securing those objects--a trust which conveys no personal or vested rights, and which the power that conveyed it is not only entitled, but bound, to resume, on its having failed to accomplish the objects for which it was created, and become a cause of injury to the community which it was intended to serve.

It is beyond all question that the Constitution granted to New Zealand by the Act of 1852, with the alterations which it has since undergone, has failed in producing the true ends and objects of government. The present condition of the New Zealand colonies can only be described as that of an organised anarchy. The native element has undoubtedly been one of great difficulty; but it was made so by the earliest Acts of the Government in destroying the confidence of the natives in its uprightness (as will be fully shown in the subsequent part of this work), as well as by the want of a paramount authority at each centre of population to deal at once with native difficulties as they arose. The natives could well appreciate the position of a Governor representing the authority of the Queen, but the institution of Superintendents and responsible Ministers appeared to them altogether incomprehensible. Accompanied, as their measures were, by vacillation and weakness, they created contempt where the natural disposition was to venerate, the embodiment of a power which they long considered irresistible. Had the first prestige of an authority wielded only in the maintenance of right not been destroyed, the natives of New Zealand might have been led like sheep by the hand of an upright Governor through the child-like confidence in the Sovereign of England which was instilled into their minds simultaneously with their conversion to Christianity. What do

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they tell us now? They find public affairs in the hands of men in whom they fail to discover the credentials of public authority, or, in most instances, any particular claims to personal respect; they find in them an infirmity of purpose as well as a renunciation of duty. They tell us, "We like your laws; it is your men that we do not like." 23

Wi Tako, a firm friend of Governor Grey in his former Administration, thus addressed him on his visit to the Southern districts on the 16th September, 1862:--

"When you were fighting with Rangihaeta you called upon me to assist you, and I did so, without waiting to consider whether he was my relation or countryman. You asked me to assist you at Wanganui, and I did so without demur. After the termination of the war you went to England, and there was a new form of government for New Zealand, Superintendents, and such like, numbers of them, and I was puzzled to know who was Governor. After this Rawiri Waiaua, a near relative of mine, an assessor also, was murdered at Taranaki, and I was much grieved about it. I went to the Superintendent at Wellington, Dr. Featherston, and asked him to go with me to Taranaki to inquire into this matter (he is standing near you and cannot deny it) more particularly, as at the time of the murder Rawiri was doing the work of Government. The Superintendent answered me by saying, 'I am not the captain of the ship, I am only one of the mates; I cannot interfere.' Now, as I always understood, that upon your departure for England the Superintendent was Governor here, and, he having refused to interfere in this matter, I then began to understand that it was not to protect the Maori race, but to acquire their land, was the great object of the Government, and for this reason I am earnest in upholding the King movement."

They tell us the foundation of this King movement is "faith, love, law;" and they show by their devoted bravery and self-sacrifice that they are sincere in their professions, however mistaken in their proceedings. It is a most sad necessity which brings an army of Britons to reduce such a people to obedience by the destruction of one-half of their number.

It has been shown, so far as regards the colonists of Auckland, to be indisputable that the Constitution, which has proved such an utter failure, was not only not granted in accordance with their wishes, but that they had no knowledge of it till it reached them in the form of a law;

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that one of the first acts, if not the very first act, of the Provincial Legislature, on its first meeting, was the preparation of a petition praying that the colony of Auckland should have a constitutional Government, in accordance with the admitted right of British colonists to manage their own local affairs, subject only to the paramount authority of the mother country; that the subsequent petitions of that Council maintained and renewed a continued protest against a Constitution which made their interests subservient to the ambition or interests of other colonists, with whom they had no connection whatever beyond being subjects of the same Sovereign. Finally, the colonists of Auckland have with one voice approached the Throne, pointing out the evils which have resulted from "divided counsels" to both races of Her Majesty's subjects, and reiterated their petitions for a separate Government for the province, as the only means of relieving the colony from those evils, and providing for the welfare of both races; the Governor of the colony concurring with the colonists in the opinion that "unless some such arrangement is carried out, it will be impossible to bring to a satisfactory termination the difficulties prevailing in the country." It is difficult to conceive how the unanimous petitions of a whole community, resting upon such grounds, appealing to such experiences, and supported by such authority, can be denied. Its denial would be, indeed, a virtual repudiation of all the principles of colonial administration by which the British Government has been actuated in its dealings with colonists, from the earliest days of colonisation, saving only in the necessary exception of convict settlements. No better opportunity could be desired for a return to that form of colonial administration of which two centuries of experience have testified the efficiency; and in departing from which, in later instances, the home authorities, in deference to the wishes, or supposed wishes, of the colonists, consented to forego their better judgment.

In one of the debates upon Canadian affairs the Earl of Derby stated that he never expected to see the day when an elected Legislative Council would be a more Conservative body than a nominated Council. Such a result could only be due to the party schemes of a Ministry depending for their tenure of office upon the necessity of creating votes to swamp the free expression of independent judgment. It is difficult to bring any abstract principles of government into operation without reference to circumstances actually existing. In order to meet the complications which had resulted from the anomalous Con-

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stitution of the New Zealand colonies, joined to the action of party government, the following Constitution was suggested to Governor Browne, and met with his unqualified approval. It was intended only for the province of Auckland, and would be well calculated to facilitate the introduction and harmonious action of a Constitution framed upon the ancient model:--

1. A fixed civil list for the essential functionaries of Government, the administration of justice, and native purposes.

2. An Executive Council appointed by the Crown, to consist of the Colonial Secretary, the Colonial Treasurer, the Attorney-General, and the Commander of the Forces, who should hold office quamdiu se bene gesserent.

3. A Legislative Council of not less than twelve and not more than sixteen members, to hold office during life, and to be appointed thus:--The House of Representatives, on its first meeting, after having elected a Speaker, to ballot for double the number of the Legislative Councillors--say twenty-four; each member present putting into the ballot-box a list signed by himself of twenty-four names of persons over thirty years of age. The ballot-box to be opened in the presence of the Governor and Executive Council, and the Speaker of the House of Representatives; and a list of the names therein to be prepared, showing the number of votes for each name; such list to be signed by the Speaker and the Clerk of the Executive Council, and transmitted to the Secretary of State.

From this list the Governor, at his sole discretion, to select the names of twelve persons who shall be appointed to be members of the Legislative Council, subject to Her Majesty's approval.

4. A House of Representatives to consist of thirty members, to be elected for four years. The qualifications for members and electors to be, --that they are British subjects, able to read and write the English language; that they possess real estate of the value of 50l., or have occupied a house or tenement for three years, at the annual rental of 10l. The members of the Executive Council to be ex officio additional members of the Legislative Council, or of the House of Representatives, as they shall be severally appointed thereto by the Governor; and to have in every respect the same privileges as the members elected by constituencies, save that they shall have no vote.-- August 15, 1861.

When it was finally settled that agitation would not lead to office, the turbulence of ambitious men would cease, schemes "of novel invention" would be less rife. Exempt from the

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watchfulness and precautions necessary to preserve office, the holders of office would be able to attend to their proper duties, and the colonists would soon find cause to rejoice that they were under the government of the Queen, and not under the power of men to whom they owed no allegiance, and towards whom they could feel no respect. It is true that it would be in the power of the Assembly to "stop the supplies;" and such a power is one of the necessary elements of a mixed Government. But the Parliamentary Constitution having provided for the administration of justice and the maintenance of the offices essential for the exercise of the Queen's authority, the Governor could in such a case be in a condition to say to the Assembly-- "That, gentlemen, is a measure which will affect yourselves and your constituents more than it will affect me. The points in dispute between the House and myself shall be referred to the decision of the Queen's Government in England, which must necessarily be final while the colony remains a British dependency. If, in the meantime, you should make it necessary to stop the public works and to starve the majority of the public servants, the responsibility of that remains between you and your constituents. I shall adhere to what my own views of duty require of me, until otherwise instructed by the supreme authority of the State from which I received my commission and instructions, and which alone has power to vary or overrule them."

1   Mr. Cobden.
2   Papers laid before Parliament on the 6th April, 1865.
3   Papers laid before Parliament on the 9th May, 1865.
4   Clark's Colonial Law. Note under page 126.
5   Story's Commentaries on the Constitution of the United States.
6   "The maxim or rule, Protectio trahit subjectionem, subjectio protectionem, has obtained in every age and in every country,"--Chitty on Prerogative,
7   Hansard's Debates, vol. cvi., 19th June, 1849, p. 460.
8   Colonial Constitutions, by Arthur Mills, Esq., of the Inner Temple.
9   The Duke of Newcastle to Sir Henry Barkly.
10   The Duke of Newcastle to Sir George Grey, June 5th, l861.
11   The last three pages are reprinted from a paper read at the meeting of the Association for the Promotion of Social Science, held at York in September, 1864.
12   Dwarris on Statutes, Vol. II., p. 672.
13   The Sydney Morning Herald--a paper which has always been in favour of the system called responsible government, gives in its monthly summary of the 21st August, 1865, the following picture of the men which that system has elevated to the position of legislators:-- "The last Parliament of New South Wales reached its last term of five years, and nothing could be more odious than its composition--nothing more necessary than its dissolution. The system of corruption had become perfectly organised and unblushing. In truth there is no sense of responsibility of members to their constituents, excepting within a very short time of an election. Political life in colonies resembles rather a procession, in which the travellers onward snatch on every hand what opportunity may throw in their way. The number who have risen into notoriety and sunk out of sight is not to be told. Many who were most demonstrative when Parliamentary government was introduced have gone from public recollection. Power given capriciously, and quickly withdrawn or abandoned, can never impose any serious obligations, 'Live while you live' is the motto adopted by that kind of wisdom which makes the most of the people."

The Aucklander of the 7th November, 1861, gives the following resume of the political condition of the Australian Colonies at that date:-- 'The Governors of New South Wales and Victoria have been visiting the country districts of their respective provinces, and have everywhere been received with something more than respect; perhaps something different from it. They have been received with that liking which is naturally enough shown to persons who are willing to give everything to everybody; persons who are willing to try every sort of experiment in the body-politic in order to please the people and lead a quiet life.

"We wish we were in a position to give our readers an exact account of the Governments of the Australian Colonies in their present condition. We have laboured through piles of newspapers in order to master the subject, but we are far from being able to give more than the merest outline. On the whole, however, we should say that the fever of democracy has pretty nearly run its course. The colony which was allowed to choose the most democratic Constitution, to dispense altogether with a Second Chamber, representing the experience, the property, and the moral status of the community, was Tasmania. In the Tasmanian Constitution, the conservative element was altogether wanting. The Government and the Legislature consisted simply of the Governor and the House of Representatives. We should judge from the petition which we give in another column, that the sensible people of that colony have seen the folly of forsaking the old standard and departing from the old ways which the wisdom and experience of ages have established.

"The British Constitution until these days of experiment commenced was always considered the best model for the government of a free colony. The governmental institutions of the Australian Colonies have suffered from the original destination of those colonies as receptacles for convicts. And it was perhaps natural that from the despotic government which they required as large prisons, they should go to the opposite extreme when left to their own choice. For it has been of late years the policy of the Colonial Office not to uphold British institutions, but to give such institutions as were represented to be conformable to the wishes of the people.

"In New South Wales, under the Government of Sir John Young, the responsible Ministry would seem to have ceased to be the mere organs of a majority. They have become an object of more than distrust to the democratic leaders. And the ranks of the democratic leaders in the Assembly have been gradually recruited with a type which appears to represent rather the violence of rowdyism than the intelligence of ordinary people, who wish for a representative of their own class in society. The Sydney Morning Herald commences a leading article, with the following description of their 'legislative men:'--

"'There can be no greater reproach to the people than that the men of their choice are the scorn of the world. There is now no part of civilised society, from the Equator to the Poles, where disgust, laughter, and speculation, have not been excited by the conduct of our legislative men. The German, French, and Spanish papers copy the 'proceedings' of our Assembly for the instruction and amusement of their readers. The point of interest is not in our politics-- which are too obscure and personal for comprehension--but in our manners.'

"Sir John Young himself has been taking advantage of a social meeting to lecture the people upon the necessity of a reverence for the law, which he tells them has been the chief characteristic of their forefathers.

"'Land for the poor man,' has been the cry with which demagogues have procured votes and obtained power. In New South Wales, as well as in Victoria, the popular leaders have denounced the squatters as enemies of the poor man, because their flocks are the sole occupants of millions of acres; not considering that it would require the population of China to occupy with the plough what is now producing from its natural pasture the staple export of the colony. In New South Wales the Legislative Council have hitherto prevented encroachments on the legal and equitable rights of the squatters. But it seems that the responsible Ministry of Victoria have, by a coup d'etat, issued land orders, which the Legislative Council have by an address to the governor requested him to suspend, until their legality can be tested by an application to the Supreme Court.

"Sir Henry Barkly has answered this address by informing the Council that his Ministry are perfectly satisfied of the legality of their proceedings as well as of their public advantage, and that it would be an improper interference with the principles of responsible government for him to comply with the request of the Council.

"Queensland alone is the happy colony which has escaped a Ministerial crisis during the first two years of its existence. The executive functionaries of that colony were not chosen by a majority of the House of Representatives, but by the Governor, and their measures have been not only conservative, but satisfactory to the people. The people of the new colony of Queensland have benefited by their knowledge of what democracy was doing in the older colonies, and they have hitherto been able to keep to the form of government which is really and truly responsible: a government of law and right; not that of a rabble Ministry representing only the vote of a majority.
14   See the commission and instructions issued to Sir G. Grey, which are given at large in the Appendix.
15   The War in New Zealand. By William Fox. 1860.
16   While these pages are going through the press newspapers have arrived from New Zealand containing the controversy between Sir George Grey and Sir Duncan Cameron, It appears that the resolution of the Weld Ministry to dispense with the services of the regular troops, which gave rise to so much congratulation in the House of Commons, was a mere brutum fulmen--the Governor, at the eleventh hour, having interposed his authority "as an Imperial Officer" to suspend the arrangements of which Sir Duncan Cameron had given notice, for the return of two regiments to England. The inconsistency of carrying war into a new district, while waiting for the Home Government to remove the troops, was perhaps paralleled by the proclamation of peace and amnesty on the 2d of September, followed on the 4th of the same month by a proclamation of martial law in the East Cape District. But these inconsistencies have a significance which is well understood in the colony. In order that the Weld Ministry might hold its ground, it was necessary to conciliate the politicians of Wellington and Taranaki, by an attempt to open a road between the latter place and Wanganui; and to conciliate the politicians of the Southern Island, by an appearance of peace, and of a consequent termination to the expenses of the war.
17   Papers of 7th February, 1865, p. 192.
18   It is stated (in the financial statement quoted in a previous note) at £4 9s. 11d. to 31st March, 1865, but the new duties had not then become available to their full extent; and additional taxation was announced in the shape of a Stamp Act, &c.
19   See, for example, the Petition of 1858 in the Appendix.
20   In the province of Auckland the three first Superintendents, who were elected under the provisions of the Constitution Act successively, resigned the office before the expiry of the period for which they were elected. The term of office is four years: the first Superintendent, the military officer in command of the troops, elected partly because less obnoxious to envy than a colonist, partly from the belief that, having no local interests to serve, he would act impartially, resigned, because of the incompatibility of the office with that of Lieutenant-Governor, which had devolved upon him. The next two, from disgust at the sacrifice of principle which would have been necessary to obtain the support of a majority of the Provincial Council.
21   History of the United States of North America.
22   By a return to the General Assembly, dated 6th September, 1861, it appeared that every twenty-fifth male adult was in receipt of salary from the public, the%verage rate being 154l. per annum. But this was before the introduction of Sir George Grey's "Institutions of Native Government," which were avowedly founded upon the assumption that the restless spirits amongst the colonists were kept quiet by the expenditure of so much money in salaries, and that a similar expenditure amongst the Maories would be cheaper than reducing them to subjection by military operations. The Assembly acceded to this view, and gave the Governor authority to appropriate, at his discretion, 25,000l. a year to give salaries to native assessors, and wardens, and constables; he undertaking to expend, or to procure a remission of the same amount, from Imperial funds. This led to no end of appointments; commissioners and resident magistrates being located all over the colony to instruct the Maories in the business of legislation and magistracy. The result of these measures was foretold by a remarkably active and intelligent native assessor in the Bay of Islands district:-- "I wish you," he said, "to remember what I say, for by and by you will see that it is true; the natives are not such fools but they can see that the Governor's plan is to keep all offenders and evil-minded people quiet by paying them money; and as there are many chiefs of more influence than us assessors, who are quite unknown, or at least unnoticed, by the Government, they begin to say they will obstruct the Government in every way, in hope of getting places and money. What can we assessors do? We have no money to pay offenders, and we shall lose all our influence." The last sentence was spoken ironically. He then said, with great seriousness:-- "I have always believed that offenders were to be punished by the law, but I see now that the punishment is to be money. Remember what I say, it will all go wrong this new system; there will be a great number of offenders; and as for myself, I think if the Governor gives Potatau (the Maori King) a salary, I will now be able to hold out any longer, but will begin to rob Pakehas myself. What is an assessor's salary to what a great robber would get?" By the latest accounts from New Zealand, it appears that since 1st January, 1864, 201 new offices have been created under the general Government, and £12,000 per annum added to existing salaries.
23   Wi Tamihana to Commissioner Gorst.

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