Mr. GODLEY'S LECTURE on the NEW ZEALAND CONSTITUTION BILL.

Lyttelton Times, Volume III, Issue 106, 15 January 1853, Page 9

Mr. GODLEY'S LECTURE on the NEW ZEALAND CONSTITUTION BILL.

(Concluded from Jan. 1.) I now come to the third division of my subject, namely,—the form and functions the different departments of Government, and the remaining features of the act, which have not been discussed under the two previous heads. I will lake first the ofiice of superintendent. This functionary is to be elected by the people for a term precisely corresponding to that of the Provincial Councils' existence; his appointment is subject to the disallowance of the Governor ; and lie is liable to be dismissed on an address of the Provincial Council. The functions which the act gives him are wholly concerned with the making of laws ; and the provision for'his dissolution (if I may so speak) contemporaneously with the dissolution of the Council, seems to stamp him still further with a purely legislative character. He seems intended to be, in short, a kind of Upper Chamber. But if this be the intention of Parliament, I must say, that the conditions under which it is provided he shall exercise his functions, seem to me so strange as to be almost ridiculous. I never before heard of a branch of any legislature which was " subject to instructions" with respect to the discharge of its legislative duties ; in other words which was bound by law to vote as it was bid. I know many legislative bodies which are practically in that predicament, but I should think this was the first instance of such a plan being put into a paper constitution. Again the unfortunate superintendent is not merely forbidden, on the one hand, to have a will of his own as regards assent to, or disallowance of bills, but he is also, on the other Land, dependent for his salary on the Council, and subject to dismissal at their instance. So that the upper branch, of which the sole apparent use is to be a check and balance to the lower, is deliberately placed in the power as regards those important particulars, of its legislative colleague. If the superintendent disallow a bill, forthwith: the Council addresses the Governor to dismiss him. It is true that the Governor may refuse, and this is the best chance the poor man has of enjoying his office for a reasonable term ; the Governor and the Council being tolerably sure to be on such a footing with respect to each other, that if he displeases the former he will be backed by the latter, and vice versfa. But if the Governor refuse to dismiss him when called upon, the Council will stop his salary, which will probably decide the question for all practical purposes, whether the Governor like it or no. On the whole I cannot imagine a public officer placed in a more "perplexing and humiliating position; not.knowing what he is to be or to do; in one sense, the representative of the people ; in another, the creature of the Governor; bound by the terms of his contract to serve two masters who are sure to be at variance, and one of whom can derive him of his pay, the other of his occupation ; sure only of one thing, which is, that he must not act an independent part, or follow his own judgment, lest he unite both against him, and so become inevitably "dissolved," without a voice being raised on his behalf. I can only account for the contradictions and anomalies which appear in that part of the act that relates to the superintendent's office, in;this way ; according to the original draft, he was to be appointed by the Governor, and to have a fixed salary payable out of the Civil List, in which case his position would have been the ordinary and intelligible one of a subordinate • official of the Central Government, and I suppose that when the office was made elective and otherwise to a great extent dependent upon the people of each pfovince, it was forgotton to accomodate the rest of its conditions and functions to the new state of things. But however this may be, the General Assembly will have carefully to consider the subject of the superintendent's position, as it is an extremely important one. In my opinion, he ought to be made primarily the head of the Provincial administration, supreme within his jurisdiction; he should also be invested with legislative powers of the kind usually possessed by the executive chief in constitutional countries. I mean powers of veto and dissolution. He should be released from his degrading vassalege to the Governor, with whom he ought really to have nothing whatever to do. He should be made, moreover, absolutely independent of the Provincial Council, by being elected for a fixed term, and by a provision that his salary once

fixed, shall not be reduced during his continuance in office. There appears to me neither reason nor advantage in connecting the termination of his office with the dissolution of the Council, and in making him liable to dismissal on an address of the Council. If his office were not elective and temporary, some such provision might perhaps be required, but as it is, his responsibility to the people makes it quite safe to keep him independent of the legislature; and the absence of a second chamber makes such a check upon hasty legislation peculiarly necessary. The assembly may also consider, whether'it will be advisable to give him any other work besides that of " superintendence:" probably (in the smaller provinces, at any rate) his time will not otherwise be fully occupied •, but this a comparatively unimportant matter of detail.

I do not think it necessary that I should acid, anything to what I have already said on the subject of the Provincial Legislature. I will repeat that, the only limit to its powers should be the limit of its jurisdiction. I mean, that Avhenever the subjects on which it may legislate shall have been fixed by the Central '.Assembly, thenceforward upon those subjects it should be supreme ; that its legislation should not be referred to the Governor for his sanction, nor be subject to be over-ridden by the concurrent jurisdiction of the Central 'Legislature. If the Central or Provincial Legislature exceed ils powers, of course its acts, pro tanto, ought to be void, and the question whether it have done so or not in any particular case, should be decided by the Supreme Court, or whatever may be the proper judicial tribunal, I will only say a few words in passing on the subject of the franchise, for I fear it has now ceased to be a practical question. In my opinion the qualification fixed by the act, involving as it does, almost what is vulgarly but improperly called universal suffrage, is too low. I hold that before the responsible and arduous privileges of an elector under a popular constitution be intrusted, some approximate test of reasonable competence on the part of the trustees should at least be sought for, and I do not think that every man 21 years old, or every occupier of a house worth £o is capable of exercising even indirectly the functions of a legislator with advantage to the community. I think we should endeavour by some more stringent process to distinguish the more moral, more industrious, more educated, and more intelligent part of the community from the rest, and to confine political power, as far as we can, to the former. I know we cannot do so otherwise than very imperfectly ; I know that wherever we draw the line, many good men will be excluded, and many bad men admitted; but that is of course no argument for drawing the particular line so as just to include males of 21 years old, or occupiers of honses worth £5, rather than at any other arbitrary point. It is, and must be, a question of degree only, upon which as there can be no particular reason for any two men to hold exactly the same opinion, some sort of compromise or general agreement is necessary. Now, my deliberate opinion is, that to a new country, where almost every sober, industrious, and intelligent man is tolerably sure, within a short period, of acquiring proproperty, a small property qualification is peculiarly well adapted, and would constitute, generally speaking, a fair test of political fitness. There would not be here as in England any class permanently excluded by it (that is if it were not too high); all that it would do would be to involve the necessity of a certain apprenticeship, in the case of men living by manual labour, before they could obtain the franchise, and to exclude altogether from the management of public affairs those only who should prove themselves incompetent to manage their own. Nothing has ever impressed upon me more strongly the careless and contemptuous mannev in which colonial questions are treated by British Statesmen, than the fact that men who would sacrifice half their estates sooner than consent to the establishment of a franchise like this in England, either contentedly acquiesce in, or actually advocate the enactment of itior New Zealand. It is really incredible, that upon this all important question of the suffrage under the new constitution, not a single observation, so far as I can discover, was made iv either House of Parliament. Independently of general reasoning, there has always, appeared to me to be a special "•round for desiring the establishment of a property qualification for electors in New Zea-

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

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

The next provision in the Act before us, on which I think it necessary to comment, is the composition of the Legislative Council of New Zealand. The Act provides that Her Majesty acting through the Governor shall have power to summon such persons, being not less than ten, as Her Majesty shall think fit to the Legislative Council, and that these Legislative Councillors shall hold their seats for life. To use the popular phrase, you are to have a nominee Upper Chamber. Now, here again we have under another form, the old idea, against which so much has been already said in this lecture—the idea of keeping up the " interest of the Crown" in these Colonies by means of a control over their Governments and Legislatures. Why should the Colonial Minister of England, I want to know, exercise any influence at all over your legislation ? As he has no business to veto your laws, why should he appoint your legislators ? Who is the better for his doing so ? What conceivable interest has England in forcing into youv Legislature men whom you would not yourselves choose for that purpose ? And as to your own interests, surely you are the best guardians of them. It is your business to take care that the best men that can be obtained, shall be obtained to make your laws. It signifies nothing to any one else. I cannot understand how any one can seriously attempt to draw a parallel between the Peerage of the United Kingdom, and a chamber of Colonial nominees. The comparison is ludicrous. Iv the first place, I think I may assume that even at home a body like the House of Peers could not now lor the first time be created. Its power and influence and greatness depend on circumstances of an altogether peculiar kind ; it lives by its historic glory, by the prescription of a mighty name, and by its intimate connexion with every other part of the Constitution, quite as much as by the hereditary wealth and dignity of its members, and by its suitableness to the aristocratic and semi-feudal character which

still stumps British society and British institutions. What analogous means of influence would a nominee chamber possess here, to compensate for its anti-popular character? Whatever traditions may be connected with it are certainly not of a very glorious or imposing kind. From the general equality of conditions that prevail in this country, it is not likely that they will be much removed by property and position from the mass of their fellow-citizens. Nor is it likely that with the very best intentions, the Governor will be able to get men of eminent merit and ability to become his nominees. Such men will, I trust, have the opportunity of holding, and will certainly prefer to hold seats in the popular branch of the Legislature. If, even in England, an active politician regards removal from the House of Commons to the House of Lords as a sort of supersession, or at least, as extremely detrimental to his political influence, & fortiori will an analogous feeling prevail here, where the acceptor of a nominee seat will be exposed to so many prejudices and to such popular odium. lam inclined, therefore, to anticipate that the nominee chamber having no real stamina or foundation ■will not be an active nuisance; it will rather fall speedily into impotence and contempt. If the Governor continue to exercise, as at present, a personal influence and control in the management of your local affairs, the nominees will be of no material use to him ; he may possibly contrive to do through their votes what he would otherwise do openly on his own responsibility, and thus throw on them some part of the odium incident to his own position, but that is all; and I do not think you will be much worse off for the alliance. If, on the contrary, your affairs come to be managed by responsible ministers, as in Canada, they will adopt like the Canadians, a very simple method with the nominee House in order to bring it into harmony with the Executive and the majority of the Lower House. They will just "s'.vamp" it to the necessary extent with their own partizans. Under either of the above systems, there will always be a strong tendency to increase the members of the Council, as successive Governors, or successive ministers, find it convenient to satisfy adherents, or override opposition ; and they know little of the way in which Colonial politics are carried on, who think that any Constitutional scruples, or regard for the dignity of the order, will interfere, as at home, to prevent this " swamping" process from being employed to any required amount. It is possible, therefore, that you will quickly have a very numerous Legislative Council.

If we must have nominees, it is undoubtedly an improvement on the old nominee system that they should be appointed for life, as they will thereby be able to preserve some degree of independence; but on the other hand by this provision, if the full compliment, which may be considered right, be made up within a few years, as I have shown to be probable, all chauce (even if there were otherwise a chance) of attracting into the Legislative Council from time to time the best men in the Colony, is excluded. In a population like ours, deaths occur but rarely; and it is probable that 20 years hence, the composition of the Legislative Council will be pretty much the same as next year, or the year after—neither better nor worse ; your security against this, however, is that there is not much likelihood of the Constitution lasting, in its present form, for 20 months, to say nothing of 20 years. For my own part I am somewhat inclined, with Mr. Gladstone, to think it not improbable tfiat the operations of the Legislative Council may come to a standstill ou the vulgar qu stion of money payments. -There is not the slightest chance that the people will consent to pay the expenses of nominees, and I doubt very much, whether, without payment, you will get a quorum to attend the Legislature ; unless, indeed, a sufficient number of them happen to reside in the immediate neijrhbourhood of the seat of Government. Tiie subject of the political position in which the native population is placed by the Act now under review has been already alluded to ; but it is too important not to require some additional consideration. The Act says that the Governor may "constitute within New Zealand convenient electoral districts," &c. lam not sure whether, under this clause, the Governor has or has not power to exclude the inhabitants of any part of New Zealand from the privileges which it confers. If he has not, those large tracts of the Northern Island which are hardly ever visited, by Europeans, and in which

the bulk of the natives live, must be formed into districts aud elect members; if he has, as I suppose, then I must say that the precise nature and limits of a power so unconstitutional, and so capable of being abused, should in my opinion have been clearly laid down. With the principle, however, which the act involves—the principle, namely, that the European provinces are to constitute a "Pale" outside of which native laws and customs are to prevail, I fully agree. It is in fact only recognizing and making legal a state of things which will exist whether you will or no. But Ido not at all agree with the policy of setting apart a sum for the benefit of the natives, over which the Assembly is to have no controul. As the natives are to have their full proportionate influence in electing representatives to manage the general expenditure, it is unfair that they should have a special provision besides. Nor do I see why it is to be supposed that the Assembly would show any reluctance to give whatever might be required for native purposes; while I think the disposal of it would be much more properly and safely vested in their bands than in that of the Governor. There is a popular notion, which Colonial Governors, I observe, take great pains to foster, that Colonists are the natural enemies, and Governors the natural guardians, of natives. But I caunot find any ground for this notion, either in reason or experience. It is reasonable to suppose that those who are the most deeply interested in preserving peace and friendly intercourse with the natives, and promoting their civilization and prosperity, will be the most likely to devise and adopt a policy conducive to those ends, and I utterly repudiate the idea, which is, I suspect, in fact though unavowedly, at the bottom of this theory, that an Officer chosen by the Crown will be wiser, more humane, and more likely to obtain the confidence of the natives, than one chosen by the Colonists. Nor does experience, I think, tend to prove that Imperial Officers understand how to deal with the natives better than Colonists. If I look to New Zealand, I find that the only serious native hostilities we have had to contend with sprang directly from the acts of the Government, and nothing is more remarkable in the history of the early colonization of this country than the amicable relations which prevailed between the Settlers and the Maories, so long as Government did not interfere, and the immediate disturbance of those relations when it did. Again ; when I look to the history of other countries, I find an analogous result. I cannot discover that the policy of the North American Colonists towards natives (who were practically independent of England) was either less humane or less successful than that which has been pursued at the Cape, in Australia, and in Van Diemen's Land, where the Mother Country has exercised despotic power. I hold, therefore, that the relations of Colonists with neighbouring savage tribes, like every other matter of primarily local interest, ought to be left exclusively to the Colonists themselves. The old policy—the North American policy—was right in this, as in almost every other point.