AT A COURT AT BUCKINGHAM PALACE, The 1st day of May, 1849;

New Zealander, Volume 5, Issue 360, 27 September 1849, Page 3

AT A COURT AT BUCKINGHAM PALACE, The Ist day of May, 1849 ;

Present The Queen's Most Excellent Majesty in Council. Whereas there was this day read at the Board a Report of the R'ght Honourable the Lords of the Committee of Council, appointed for the consideration of all matters relating to Trade and Foreign Plantations, dated the 4th day of Ajuil last, in the words following; viz.— Your Majesty having been pleased, by your Order in Council of the 3ht January last, to refer unto this Committee copies of a correspondence between Earl Grey, one of Your Majesty's Principal Secretaries of State, and Sir Charlei Fitz Roy and the other Gover- j nors of Your Mijeity's Australian Settlements, on the ( subject of the introduction to Parliament, in the ensuing session, of a Bill for the better government of those colonicii to consider the same, and report to Your Majesty our opinion as to the steps which it •would be advisable for Your Majegty to take on the subject of the said correspondence. In obedience to Your Majesty's command! we hare taken into comideration the subject so referred to us, and humbly submit to Your Majeity tLe following Report of the conclusions which we have adopted. In order to render intelligible the groundi on which our opinions on this subject proceed, we must briefly advert to the distinctions between the practice which lias been observed dm ing the preient centuiy, and the practice which was observed in earlier times, respecting the establishment of systems of civil government in the colonial dependencies of the British Crown. In those ancient possessions of Your Majesty'! royal predecessors, which at preient form so large a part of the United States of America, and in all the other British colonies ( whether acquired by the occupation of vacant territories or by cessions from foreign powers), there prevailed until the commencement of the 19th century the almost invariable usage of establuhsng a local legislature consisting of three estates—that is, of a Governor appointed by the Sovereign, of a Council nominated by the Sovereign, and of an Assembly elected by the people. Although ia some cases other schemes of colonial polity had been at first established, yet thoie schemes had all, with one exception, progressively been brought before the end of the eighteenth century into conformity with this general type or model. The coloniei of Ceylon, Trinidad, and Guiana do not form exceptions, for although conquered, they Lad not Leen ceded before the beginning ot the present

century, Nor is Newfoundland an exception, because it was in those times regarded and governed as a mere fishing station, and not as a colony. Neither can Malta and Gibraltar be referred to ai exceptions, because they were regarded not as colonies, but as mere military fortressci, and weie governed by military laws. The only real exception was in thfe case of Sierra Leone, which at the era in question was governed by an incorporated company. Further, these colonial constitutions were all (except in the Canadas) created by letters patent under the great Seal eit er of England or of Great Britain, and those letters patent were issued in the exercise of an unquestionable and undisputed prerogative of the Crown. But in Lower and Upper Canada, the three estates of Gjvernor, Council, and Assembly were established, not by the Crown, but by the express authority ot Parliament. This deviation from the general usage was unavoidable, because it was judged right to impait to the Komin Catholic population of the Canadis privileges which in the year 1791 the Crown could not have lawfully conferred on them. There is also reason to believe that the settlement of the Canadian constitution, not by a grant from the Crown merely, but in virtue of a positive statute, was regarded by the Anwican loyalists as an important guarautee for the uecuie enjoyment of their political franchises. Jjut during the nineteenth centiuy the British Crown has arquired, by conquest and cession from foreign states, thtve traneatlantic 'colonies, one 'colony in Southern Afiic, and four colonies to tbc castwaid of the Cape of Good Hope. During the same period the British Crown has acquired, by the occupation ot vacant territories, two colonies on the western coait of Africa, three in New Holland, oue in Van Dietnen's Land, one in New Zealand, and one in the Falkland Island*. In no one of these sixten colonies has the old colonial polity of a Governor, Council, and Assembly been intioduced. la no one of them (except New South Wales) has any electoral franchise bten granted to the colonists or any share in the local legislation to their representatives. In all these con ,uered colonies the ancient system of internal government remains such as it was at the times of the respective conquests, excepting that, by letters patent under the Great Seal, a Governor and a Council appointed by the Crown have in each of them been authorised to m"ke local laws. In Guiana, indeed, no such lelteri patent have been issued, becaust the ancient Dutch legislature still retains in that colony its ancient firms and powers. In all the colonies acquired during the nineteenth century b)' the occupation of vacant teiritones, the same system of internal Itgisla'ion by a Governor and a Council appointed by the Crown has been introduced by the authority of Parliament. In colonies io acquired, the roya! prerogative was competent onty to the establishment of systems of civil government, of which a legislature, composed in part nt leasr of the representatives of the people, foinied a component part. To dispense even for a while with such a legislature, Parliamentary aid was requisite. But in sanctioning that departuure from the general type or model of the earlier colonial Constitutions, it has been the practice of Parliament to recognize tlie ancient principle, and to record the purpose of returning 1 the former conititutional practice so soon as the causes bhould have ceased to operate, which in each particu'ar case had forbidden the immediate observance of if. Nor has the pledge thus repeatedly given been forgotten. It has be n a redeemed in New Suu*h Wales, except to far as relates to the combination which has taken place there of the Council and the Assemh'y into one l.egisl itive House or Clumber. It has been redeemed with regard to New Zea'and, although peculiar circumstance! have required a temporary postponement of the operation in that colony of the Act passed by Parliament for establishing in it a representative legislature. We are of opinion that the time has not yet arrived for conferring this franchise on the colonists of Western Australia ; because they are unable to fulfil the conditions on which alone, as it appears to us, such a grant ou >ht to be made the condition, that is, of sustaining the expense of their own civil government by means of the local revnue, which would be placed under the direction and control of their representatives. Whenever the settlers of Western Australia shall be willing and able to perform this condition, they ought, we appiehend, to be admitted to the full enjoyment of the corresponding franchises, but not till then. The Colonies]of South Aust'alia and Van Dieman's Land being, on the other hand, at once wi ling and able to proviJe by local reiourcei for the public expenditure of each, or at least for so much of that expenditure as is incurred with a view to colonial and local objects, the time has in our judgment arrived when Parliament may properly be recommended to institute in each of those colonies a legislature in which the representatives of the p?ople at large should enjoy and exercise their constitutional authority. In submitting to your Majesty this advice, we are only repeating an opinion so familiar and so generally adopted by all persons conversant with the government of the British colonies, th it it would seem superfluous to support it by argument or explanation. The in* troduction of this constitutional principle into every dependency of the Biitish Crown is a general rule sanctioned by a common and clear assent. The exception to that rule arises only when it can be shown that the observance of it would induce evils still more considerab'e than those which it would obviate and correct. We are aware of no reason for apprehending ] that such a preponderance of evil would follow on the introduction of such a change in South Australia and Van Diemen's Land. The contrary anticipation appears to be entertained by all those who possess the b3st means and the greatest powers of foreseeing the | probable remits of such a measure. We therefore recommend that during the present session of Parliament a Bill should be introduced for securing to the representatives of the people of South Australia and Van Diernen'i Land, respectively, their duo share in the legislature of each of those colonies. We apprehend, however, that it would be found highly inconvenient to consider tb.ii question as it regards those two settlements, without at the same time adverting to the effects with which tuch a change in them must be followed in the whole range of the Australian colonies. New Holland is at present divided between the three governments of New South Wales, South Australia, and Western Australia, 'lhe most cursory inspection of the maps and charti of thoie regions will sufficiently show that, as they shall become more populous and more extensively settled, it will be necessary to divide them into a greater number of distinct colonies. But, confining our immediate attention to the case of New South Wales, we observe that the cities of Sydney and of Melbourne, lying at a great distance from each other, form the respective capital! of districts of great extent, separated from each other by diversities of climate and by some corresponding differences in their natural resources, and in the agricultural and commeical pursuits followed in each of them. The inhabitants of the southern districts have long and earnestly solicited that Melbourne should be made the seat and centre of the colonial government separated fiom that of Sydney ,

and so decided has this wish become of late, thai, o«, the recent general election of members of the Legi<:ia< ture of New South Wales collectively, the Inhabit pp'/i, ot the southern district have viitua'ly and in effect refused to make any such choice. The reluctance whicA was at first oo naturally entertained at Sydney to the proposed innovation, appears to have gradually bud effectually yielded to the progress of knowledge and reasoning on the subject. 'I he Governor and the Executive Council, the existing Legislature, and, and as we believe, the great body of the colonists, now favour the contemplated division of their extensive territory into a northern and a southern colony. Nor is it surprising that such should have been the ultimate conclusion of such a debate. The inhabitants of countries recently and imperfectly settled tiro exposed to few greater social evils than that of the remoteneßSof the scat of government fiom large bodies of the settlers. The effect is virtually to disfranchise a large proportion, if not a majmiiy, of the colonists, by excluding them fiom any share iv the management of public affairs, and in the inspection and contioi of the conduct of their rulers. Jn such circumstances the inconveniences of the centraliz ition of all the power* of government are experienced in their utmost force. The population of the dibtnets most distant fiom the metropolis are compelled to entrust the representation of their persons, and (lie care of their local interests, to settled residents at that metropolis, who possess but a very slight knowledge of tbtir constituents, and a faint .sympathy with their peculiar pursuits and wants. We piopose, thoirfore, that I'diliament should he lecomiueudcd to auhoriae the division of the existing colony of New South Wales into a northern and a southern province. Syduey would be the capital of the northern division, which would retain the present name of New South Wales. Melbourne would be the capital of the southern division, on which we would humbly ad>ise that your M.ijes y should be graciously pleased to confer ihe nHtne of Victoria. In former | times your Majc ty's royal ancestors or predecessors permitted a simi'ar me oi their names to designate provinces on the Noith Aineiican comment. Venturing to presume that it will be 5 our Majesty's pleasure to follow thoie precedent on the ptesont occasion, we shall take the iibctiy in the sequel of this Report to use the name of Victoria ti desctibc the same province ; and the namo of New South Wales to describe the northern province of the gret.t territory to which, collfctively, the latter ot those appellations at present belongs. The line of demarcation between New South Wales nnd Victoria would coincide with the existing boundary between the two districts into which, for certain purposes, the colony is already divided. It would commence at Cape Howe, pursue a straight line to the nearest source of the rher Murray, and follow the course of that river as fur as the boundary which now divides New South Wales from South Australia. In each of the two piopobed provinces of New South Wales and Vietoiia, we apprehend that provision ought now to be m.ide by Parliament for creating a legislature iti which the representative! of the people should exercise their constitution authority and influence. We do not advise that resort should be had for these purposes to the ancient and unaided prerogatives of jour Majes y's crown; because it is not competent to your Majesty, in the exercise of that prerogative, to supercede the constitutions whiih Parliament has al ready established in the Austialian colonies. Parlia* mentary intervention is therefore indispensable. If we weic approaching the pi sscnt question undcj, circumstances wuioh left us the unfettered exeicise of our otvn judgment as to the nature ol tne legislature to be estn! lished in N~w Soulh Wales, Victoria, South Australia, and Van Diemen's Land, we should adviad that Parliament should be moved to recur to the ancient constitutional mage by establishing in each a Governor, a Council, and an Assembly. Foi we think it desirable that the political institutions of the British Colonies should thus be brought into the nearest postible 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 th'u subject, and to the precedents in which those maxima have been embodied. The experience of centuries hai ascertained the value and the piactical efficiency of that system of coloniul poi y to which those maxims and precedents afford their sanction. In the absence of some very clear and urgent reason (or breaking up the ancient uniformity of design in the government of the colonial dependencies of the Crown, it would seem unwise to depart from that uniformity. And further, the whole body of const.tutionil law which determine the rights and the duties of the different branches of the ancient colonial governments having, with the lapse of time, been gradually ascertained and firmly esta b ished, we must legret any innovation wlrch tends to deprive the Australian Colonies of the great advantage of posscsbing such ti code so well defined and so maturely considered. But, great as is the weight we attach to these considerations, the circumstances under wheh we actually approach the question are such as to constrain us, however reluctantly, to adopt the opinion that the proposed Act of Parliament should provide for the establishment in each of the four Australian colonies of a single House of Legislature only; on'-third of the members of which should be nominated by your Ma= jesty, and the remaining two-thirds elated by the colonists. For such i 3 in point of fact the aybtem which now prevails throughout the territories which will compose the two provinces of New South Wdlei and Vietoiia. It was the pleasure of X'ailiament, in the year 1842, to establish that system, diatom appears to have attached the colonists to it. Public opinion in New South Watra would appear to be decidedly opposed to an alteration in th.s ie<p.ict of the existing constitution of the colony by the authority of Parliament. Of this fact the most conclusive proof ig to be found in the petitions recently presented to your Majesty, and to Parliament, from a large body ot the colonijts, praying that no change may be made, without the consent ot the inhabitants «t large, in the constitution and form which the local legislature hns already received from Parliament. In the absence of any counterpetitions, we think it reasonable to conclude that such is the deliberate judgment of the great body of the settlers in New South Wales and Victoria; and we are of opinion that it would be unwise and unjustifiable to force such a change upon them. AH tint in our judgment can be reasonably done is to leave to the legislatures, now to be established, the power of amending tlieir own constitutions, by resolving either of these single Houses of Legislatuie into two Houses. The weight which is justly due to the arguments in favour of that measure will, we trust, not be without its proper influence on both the elcotoral and the elected bodies. Bu 1 -, even if the state of public opinion in New South Wales were less distinctly ascertained, the adoption of the course which in itself we regard as the most wise, would be forbidden by the pledge into which your Majesty's Executive Government have already entered on the subject. Proceeding as we apprehended in the same view which we have ourselves taken of the wishes and judgment of the inhabitants at large, and anticipating, us we believe, our own view of the impropriety

jji 0.3 Wsv direct encounfer with that opinion on the pre- !; -ant inbjeit, voar Majesty's Spcretmy of State having i' Az dupartmmt of the Colonies, in & Despatch of tlio I 91« it July last, informed the Governor of New South. \Vi\tea, and through him the ex'stim* legislature and the colonists at huge, that this w .r. r - not such a " retorm aa ifc was at nil incurobent on the legislature at home to press on an unwilling, or oven on an indificicnt people." The language of this Despatch (in the wisdom of which Wti entirely concur) will, i-f cou>s<<, be legnrded by your Majesty as implying an engagement to which it is necessary sirictiy to adhere. The considerations to which we have Oius adverted in favour of thus establishing a binstle House of Lej;is< lature in each of the two pioposed piovinres of New South Wales and Victoiia. may peihaps appear applicable to tho-.e j rovinces only. l\n n-ithei in Australia nor in Van Dieman's Land has P.tilmment introduced any such constitution ; nor has your M 'jetty's Executive Government entered into any pledge <r> li-e subject to either of those colonies; iur I' ive .my petitions bi'Cn icccived astni taming what is the <4ale of public opinion in cither of them on the qutstioii v.hether the Legislative Houses sho'iM ha combined ml 1 ) one Chamber or separated into two, Ijitf vc i xunol lioin these considerations conclude that a real frcdom. remains to your Majesty and to Parliament ol j>dtvtin<j thrit which may appsjpr on nhsliact giound*. and on penrrtl principles to lie tha wiser coir.se. Wa ,tp,>rchend that thi innonvenit nee of settling tlis (onus of government simultaneously in colonies so closely nd« j Kent and •=-> inlim.itelv coiPtee td v. ,'h c.ich other, with any diviT.il/ nuej; '.d to a ; i i".',) 10 so Jundamcntal hs tins, )i a much more fouiU'i.ihlc iuconvenienco than any which could follow (rom maintaining a strict uniformity in that ropeet. As, therefore, for the reasons which we have alieady assigned, it appeals necessaiy to constitu'e a single House of Legislature only, both in New South Wales and Victoiia, we are of opinion that the same system must prevail in regard to South Australia and Van Diemen's Laud. We recommend, therefore, that the proposed Act of Purliuneut should provide for convoking in each of the four colonies a le^ulalute comprising two estates only, that is, a Governor and a single House, composed of nominees of the Crown and of the lepresentativcs of the people jointly. We also think, that in South Australia and Van Diemen's Land, as in New South Wale a and Victoiia, the legislatures now to be established ought to have the power of amending their own constitutions, by resolving either of these single Houses of Legislatuie into t-ro Houses. Whatever the lesult may be in either of the four colonies, your Majesty will thus at least havo the satisfaction of knowing thufc free scope has been given for the influence of public opinion in them all ; and that this constitutional question has been finally adjusted in uacll, in uccordauce with that opinion. From the sime reason we think it desirable that the legislalines now to be created should be entru t;d with the power of muking any other amendments in. their own constitutions which time and experience may ohow to be requisite. Wo aid aw.ne of uo sufficient cause for withholding this power, nnd we belicit that the want of it in the oilier British colonies has often been produc'ive of serious inconvenience. On the other hand we do not think it right that a subordinate legislature should have the power of enlarging or alteiing any of the constitutional franchise* conferred on it by Pailiameut, without either the express or the implied assent of the Queen, Lords, and Commons of the. United Kingdom. We should object to Buth an unrestrained permission, not for technical or legal reasons merely, but on broad and substantial grounds. Changes in the constitution of any colony may be productive of consequences extending far beyond the limits of the place itself. Tliey may affect the interest of other Britia'i settlements adjacent or remote. Thay may be injurious to the less powerful classes of the local society. They may be prejuiiciil to your JM j^sty's subjects in this country, or they may invade tlu rights of your Majesty's crown. We think, therefore, that no Act of an Australian Legislature which shall in any manner enl.iige, retrench, or alter the constitut.ou of (hit Legislatuie of its rights and privileges, or which sh.iH he in any respect at variance with the Act of Parliament or oih;r instruments under which the Legislature is constituted, ought to be of any validity until it hid been exprea&iy confirmed and finally enae'ed by your Majesty in Council. And we are fuither of opinion that it should not bj lawful to make any Order in Council so confirming any such Act until it had been laid befo c cic'i Iloute of Pu.liiment for at least Unity days. (To be continued.)