THE NEW ZEALAND CONSTITUTION.

New Zealander, Volume 9, Issue 704, 12 January 1853, Page 2

THE NEW ZEALAND CONSTITUTION.

We have just obtained a copy of " Further Papers relative to the Proposed Constitution of New Zealand," (in continuation of Papers presented May 3rd, 1852) which were laid before Parliament by command of Her Majesty on the 20th of May. The contents are,"!.—A draft Despatch to Government Grey from Lord Grey, previously to relinquishing the Seals of the Colonial Office, containing his Lordship's views on the subject of the Future Government of New Zealand; and 2.—The Heads of the Bill which Lord Grey, had he retained office, intended to submit to Parliament. We transfer the Despatch in twlenso to our columns; as, although its value is now rather historical than practical, it is replete with matter which will, we cannot doubt, be interesting to very many of our readers.

Copy of a Despatch from Earl Grey to GoverTnor Sir G. Grey. Dowing-street, February 23, 1852. Sir, — Before I relinquish the seals of this department, I think it right to place on reccord my views with regard to the future government of New Zealand by transmitting' to you the enclosed draft of a Despatch to yourself and oi'the heads of a bill to be submitted* to Parliament which have been pro pared under my directions. These drafts had no;, yet been finally revised and adopted, partlybecause i had hoped that 1 might receive a reply to my Despatch* of the 2nd of April last before it was absolutely necessary for Her Majesty's Government to come to a decision upon the various important question:' which require to be determined respecting the future Government of New Zealand ; but the subject has undergone so much consideration that there is little probability that my view could have been altered in any material point by the further information which might have reached me. I have, &c, (Signed) GREY. Governor Sir G. Grey, &c. &c.

(confidential.) Enclosure 1 in No. 1. New Zealand, I)raft to Sir George Grey. Downing-street, February, 1352. Sir,— J have to acknowledge your Despatch No. 121, of August 30th last, transmitting the Provincial Councils Ordinance in the form in which it passed the Legislative Council, and explaining with great clearness and in much detail, your views with respect to the system of government best adapted to the existing condition of New Zealand. 1 h.ive to thank you for the valuable information contained in this Despatch, It has been of great service in preparing the enclosed heads of a Bill, which it is the intenton of Her Majesty's Government to introduce into Parliament in the present Session, for the purpose of establishing the legislative institutions of New Zealand on a permanent footing. In transmitting to you these heads, it is necessary that 1 should explain, somewhat fully, the principles on which the measure is founded, and the reasons for the departure from your own recommendations which you will observe in some of its provisions. '2. The New Zealand Constitutional Act of 1846, together with the Charter and Instructions issued iti consequence, so far as related to the establishment of representative institutions, were suspended for five years in 1848, in consequence of the representations made by yourself, of the danger of introducing those institutions, in a part at least of the islands, at that particular conjuncture. By the Act passed in order to effect that suspension, l:t_£e powers were vested in yourself and the existing Legislative Council, to establish such institutions of a provisional character during the suspension as you might deem fit. 3. These powers you employed, in the first place, by constituting Provincial Councils on the model of the General Legislative Council. Subsequently, as the increase of the settlement and the quiet and orderly condition of the native population convinced you that the dangers which you had at first apprehended, were in tlie course of removal, you urged on Her Majesty's Government the expediency of commencing the introduction of the representative principle into the government of New Zealand, before the period allotted for the suspension of the Charter should expire. 4. Her Majesty's Government, in the continued exercise of that confidence in your judgement and knowledge of the peculiar state of society in New Zealand, which had originally induced them to accede to your proposal for deferring the grant of representative institutions to the colony, believed that no better course could be taken than that of relying on your opinion on this subject also; and you were therefore instructed to avail yourself of the power Parliament had entrusted to you, by taking measures for the establishment of Representative Provincial Legislatures. In accordance with these instructions, you have introduced the Provincial Councils Ordinance, which was first submit led to me in draft with your Despatch of October 24, 1850, and which you have now transmitted in the form of a law. 5. I take the opportunity while thus detailing the history of these transactions, to mention that my Despatch of the 2nd April last, acknowledging the receipt of the Draft of this Ordinance, does not appear to have reached you before it was passed into law, as certain amendments, which I then pointed out as desirable, have not been inserted in it. 1 still trust, however, that I may hear from you in reply to that Despatch, if not before the Bill which has been prepared must be submitted to Parliament, at all events in time for the consideration, during its progress, of any remarks which may be suggested to you by my observations on the Draft Ordinance. 6. Under these circumstances, if no further steps were taken by Parliament with reference to the New Zealand Constitution, the Suspending Act of 184S would expire on March 7, 18.33. The Provincial Councils Ordinance created under it would therefore also expire, together with the existing Legislative Council ; and the Constitution framed in and under the Act of 1848 would, ipso facto, take their place. 7. Her Majesty's Government, however, on a deliberate consideration of the various Despatches which you have addressed to me, have come to the conclusion that it would be inexpedient to leave the Act of 184G to come thus into force ; because they are of opinion that the changes which have taken place in the state of affairs in New Zealand, and the additional information which has been obtained since that measure was passed, suggest the propriety of various modifications, both in its substance and form, although its essential principles ought, in their judgement, to be preserved. 8. The most important of these principles, and that 'vhich, in fact, formed the foundation of the whole measure, wis the creation of co-existent (iemral and Provincial Legislatures. On the question whether this arrangement ought to be adhered to, Her Majesty's Government have not failed to give full consideration to your own views and statements, and to those also which have reacted them through you from various bodies of settlers in New Zealand, both for and against J the scheme of Provincial Councils. The result of ! their deliberation is, that they concur with you ! in believing that the natural features of the j island, the distance of the settlements, the severalty oi their local interests, however common those in-

terests may be on some subjects, and the consequent difficulty of forming a General Legislature which should suffice to perform all the ordinary functions of legislation all present arguments confirming the views entertained in 1846, in favour of the creation of Local Legislatures. 9. With respect to the number of provinces into which New Zealand should for the present be divided, Her Majesty's Government have seen no reason for dissenting from your proposal; and it is intended to establish five provinces accordingly, making, however provision for the creation of additional provinces by the authority of the Legisture, if this should hereafter become necessary, owing to the formation of new settlements. 10. It is intended that it should be left to yourself to define the limits of these provinces, subject to this general rule, which is not con tamed in the heads of the Bill, but to be followed by yourself as a guide in the exercise of this power : that they are to extend only over the portions of the islands occupied by Europeans; reserving, however, a power of gradually extending their boundaries, as this may become necessary., by the settlement of the country. 11. It appears to Her Majesty's Government that the remaining region, still of comparatively far greater extent, which is occupied by natives only, or almost entirely, ought, for various reasons, which will more" distinctly appear in the course of this Despatch, to be left under the control of the General Legislature alone; though hereafter, the limits of the territory comprised m provinces will probably require to be from time to time enlarged. 12. With respect to the powers to he entrusted to these Provincial Councils, I am disposed, for my own part, to believe (notwithstanding the alteration which you state to have taken place in your own views on this point) that in the progress of events, as colonization extends, and the Several settlements are drawn nearer to each other in boundaries and interests, they will very probably assume more and more of a municipal character, while the functions of the General Legislature will increase. But I do not think it would be advisable to introduce any special provision either to accelerate or retard such a gradual change. Anticipations as to the course which political affairs may hereafter take are everywhere liable to be disturbed by many unforeseen events, and most of all in new and advancing societies. Hence it seems to be the wisest course to rest satisfied with adapting the institutions which are to be established, as w'ell as may be practicable, to the existing state of things, leaving their future development, and the alterations which a change of circumstances may hereafter require, to be effected by the local authorities thus created. 1,3. Without seeking, therefore, to determine whether the course of events will lead to an extension or restriction of the powers now about to be conferred on the Provincial Councils, it is proposed for the present to confer upon them a general power of legislation, subject to certain specified exceptions which will be the same, or nearly so, as those established in your Provincial Councils Ordinance. The powers of the General Legislature, on the other hand, it is intended not to limit to anv particular subjects. Its enactments alone would thus have the force of law on the subjects reserved to it, and they would also have.paramount and superseding force on all those other subjects over which both it and the Local Legislatures are meant to have authority. By this arrangement no conflict of powers can arise, since that of the General Legislature will always prevail whenever it in.iy be exerted, and it will be left to experience, and to the judgment of the colonists themselves, to determine to what extent this power should be used and the action of the subordinate Legislatures consequently restricted. 14 As to the constitution of these Provincial Legislatures, Her Majesty's Government have adopted for the most part the model established by your Ordinance. There is, however one important exception, namely, the introduction of a proportion of members nominated by the Crown. It has appeared to then that the general rejections to the constitution of a single Chamber, wholly elective, apply to these Councils, however local in their character. The power of nomination affords the means of introducing, at times, persons whose services are of great value. Under the Constitution recently established in South Australia, a nominated member has recently been elected by the Council to the office of Speaker ; a strong proof how highly his services were appreciated by the general body. 15. It" h;is been further thought advisable to extend the duration oi' the Provincial Councils from two years to four. 16'. It hns been also thought necessary materially to alter the provisions cooT; .iTfig Cue reservation of laws for allowance? For reasons already explained <a> you in my Despatch of the 2nd April last, Her Majesty's Government cannot approve of the absolute exercise of that power by the Governor. The laws of the Provincial Councils are not meant to be in the nature of mere by-laws or local regulations. They would be, in the fullest sense of the word, legislative enactments, within the limits of the respective provinces; and as such should not be exempted from the general prerogative of the Sovereign. Nor does experience show that any real inconvenience arises from reserving the ultimate power of disallowing colonial laws to the Crown. This power is, practically, exercised very rarely indeed, and as the laws come into immediate operation when assented to by the Governor, the colony has alb the benefit of immediate legislation when it is required. 17. Her Majesty's Government are also unable to concur in the proposal (paragraph 63 of your Despatch) that the Superintendents of the provinces should be elective. If so, they could hardly be made removable by the Crown, nor could the power of suspending them from office till the pleasure of the Crown should be declared, like all other executive officers, be conferred on the Governor. But it is difficult to understand how it would be possible for the Governor to exercise any effective control by means of officers thus independent of him over the Provincial Executive Governments. It is a fundamental principle cf the British Constitution, and one from which I am j not aware that any departure has ever taken place, (in modern times), that all executive authority, except that which, in the strictest sense of the word, is merely municipal, must emanate from the Crown. Her Majesty's Government are not prepared to recommend to Parliament that a different principle should be adopted, in New Zealand. 18. I must add, that I think it the more necessary to adhere in this respect to what is the usual practice, because it appears to me that your demarcation of the respective powers of the Governor and the Superintendents is &r tso v^ay"twfre"introduced into a law ; and that it will be"far better to leave the extent of authority to be entrusted to these officers to be determined, as in other cases, by their Commissions. For this reason.it is proposed not to notice them in the Bill, but to vest their intended functions in yourself, with a general power of delegation. 19. In declining to adopt your recommendation upon this point, it is, however, far from being , my intention to express any dissent from your opinion, that the local Provincial Governments should be established at as small a cost as possible.. On the tontrarj', on this point your views are entirely in accordance with those of Her Majesty's Government. We think that the persons to be placed at the head of the Executive Government should be chosen from the colonists themselves, and that their salaries should be on a very moderate scale. This being the esse, it seems certainly desirable that these offieers should have some other title rather than that of Lieutenant-Governor. I see no objection to the title of Superintendent, which you have suggested. It would be also m

accordance with your proposal, of conferring office on them only for tw > years, that they should hold tin's title. o<>. Of the General Legislature it is not neccsS arv that I should say much, because the heads of the Bill itself will sufficiently dcvelope the intentions of Her Majesty's Government in proposing them. In its general features it will resemble that which it was intended to establish in 1846, except that it is proposed that the members of the General Assembly should be elected directly by the inhabitants ; those of the Council by the Provincial Legislatures under provisions intended for the purpose of securing to the minority in any Provincial Legislature the benefit of not be'in<r wholly excluded from representation in the Gene." ral Legislature. It has been thought advisable to .rive the Governor power to appoint the President of the Legislative Council, and to authorize him to make such appointment either out of the body of the Council itself, or by adding a distinct member to it. 21. With respect to the qualification of electors for the House of Representatives, I have seen no reason to alter the standard adopted by yourself lor the Provincial Councils. 22. The clause establishing the qualification for the House of Representatives is, however, so worded as to admit of votes being given by electors residing without the limits of the provinces, if within such electoral districts as may be established for elections to the General Legislature This provision was adopted to meet the possible case, not only of outlying settlers but of natives, qualified to vote according to property, but not residing within any province. Whether such a case is likely to occur or not, I have not materials to judge. 23. But the admission of the natives to the franchise is, unquestionably, one of the most difficult parts of the scheme ; and it is only after the best consideration they can give to what is, at all events a choice of difficulties, that Her Majesty's Government have resolved not to establish an, special native franchise, but. to trust to their advance in civilization and the acquisition of property, to enable them, by degrees, to take their share in elections along with the inhabitants of European race. 24. In the uncertainty which must necessarily attend an experiment of this kind as to its effects on the native race, it has been thought also advisable to retain the power which the Act of 1846 gave the Governor, of constituting native districts subject to native usages: although [ have not sufficient information to enable to judge whether there >s any present or probable necessity for the use of! hat power. 2.5. To the General Legislature thus constituted, ample powers of legislation are given : including those of making the most extensive modifications in the constitution both of itself and of the Provisional Legislatures : provided only, that the more important of these changes be not made without an opportunity being firiit given for their consideration and acceptance by the Crown. 26. The general plan under which the revenue is to be levied and appropriated also nearly resembles that of 1846. Subject to the charges of collection, and the reservation for native purposes, the General Legislature will have complete power over the revenue derivable

from any taxes imposed by itself. This "appears move essential than it otherwise would have been in consequence of the greater number of provinces into which New Zealand is to he divided ; because owing to this division, there must be many public works of importance which an authority common to all the provinces could alone properly undertake and provide for. " 27. For the expenses incurred by the authority of the General Legislature, it is proposed to provide by an equal per centage to be deducted from the revenue derived from the customs, and from other duties and taxes imposed by the General Legislature. The residue of the revenue received in eachjprovince after meeting the above charges will be placed at the disposal of the Provincial Legislature. By this arrangement, as the relative contribution of each.province to the General expenditure will be determined by its consumption, it will be as nearly as possible proportioned to its wealth and population, increasing or diminishing from time to time according to the variations which may take place in the comparative means of the different provinces, without the necessity of any intervention of the Legislature. 28. The Provincial Legislatures will of course have in addition power to impose direct taxes for local objects, if this should be necessary, although not to lev}- customs duties. 29. It has not been thought necessary to reserve any specific civil list for ordinary public purposes. But the salaries now allotted to the principal public officers are maintained at their present amount, until altered by an Act of the Legislature. And it is the wish of Her Majesty's Government that you should fully understand that, subject to the interest of existing holders of office, which it is necessary to preserve under all ordinary circumstances, there is no desire on their part to maintain any particular scale of remuneration for the officers under the Governor. To fix the salaries of public servants at a rate insufficient to command valuable services is, in their opinion, no true economy, hut they i'uily recogniz? that the question is one for the Legislatureto determine. The point which Her Majesty's Government really regard as important is, that the salaries of the principal officers of Government, whatever their amount, should be fixed by permanent Acts, and not made the subject of annual provision in the estimates. 30. Ihe portion of the civil list appropriated to native services is also fixed on your recommendation, but I think it will be abetter arangement that the charge should be provided for in tiie manner I have described above, by deducting # given per-centage from the general revenue which will be derived mainly from customs, than

fey attempting to apportion this expense in the Manner you have suggested among the different provinces. The natives being themselves large contributors to the customs revenue, it seems reasonable that the expenses incurred on their account should be paid from it. 31. I agree generally in your views respecting municipal institutions, and there is (as you observe) no reason for altering or adding to your powers for this purpose. The provision of the Act ot 1840 on this head will, therefore, be simply re-enacted ; the instructions of the same year, so far as these simply relate to municipal organization, will remain in force until superseded by fresh ones. 32. I now proceed," from stating the substance of the projected measure, to explain the form in which it has been thought most advisable to introduce it. 33. The Act of 1840 was comparative-y short, giving power to the Crown to frame the intended institutions, and specifying only their outlines. That power was then exercised by the :sme of a Charter and instructions at considerable length. 34. This method was, undoubtedly, suitable and indeed almost necessary, to meet the views with which the .Constitution was framed. But the case is now materially altered. The Provincial Councils Ordinance already supplies a very large part of the necessary details, and all that is required in respect to that portion is to give the ordinance the force of permanent law. The provisions of that ordinance are accordingly embodied in the Bill which has been prepared, which will also confer very extensive power on the Legislature of altering the Constitution ; thus removing the objection which might otherwise be felt to the introduction of such detailed regulations into an Act of Parliament, which the Crown cannot from time to time amend and vary as circumstances may require. 35. It has,, therefore, been thought best simply to repeal the existing Acts, and the charters and instructions framed under them, so far as these are inconsistent with the present Bill, and then

£«!« i ' nec^ r 7 Provisions, subject to the general power of alteration alvea.lv mentioned. w I £S ltUt T th^ 1S F &nted b y Parliament will there ore, henceforth, he unalterable bv any EnMH "l £'? T nt 7 fl 10rt 0f itself but it is left to the inhabitants themselves, through their representative., and with the assent of the Crown, to make such changes as experience may surest and public opinion demand 36. 1 have only to add, that the' power of the present Legislatures, both general and local, are retained until the new Constitution shall have come fully into operation. It will be necessary, in the first place, to establish the new Provincial Council before the General Assembly can be framed, inasmuch as the members of the Legislative Council of the latter are to be elected by the former. And it will be also necessary that the existing General Legislature should "pass the necessary laws for the conduct of the first election of the House of Representatives. Taking all these things into consideration it has seemed necessary to fix the terms specified in this Bill; namely, not more than twelve months after its proclamation for the election of the Legislative Council, and as soon afterwards as may 'be for that of the House of Representatives. 37. Such are the outlines of the measure now under contemplation, with which I have thougl t it desirable to make you acquainted at once, although it is, of course, possible that before its final enactment, information received from yourself, or suggestions from other quarters, acceded to by Parliament, may lead to alterations of what is now proposed. 38. I have, in conclusion, to acknowledge the series of Despatches noted in the margin, conveying to me the sentiments of many of the colonists as to the future Government of New Zealand. I have hitherto delayed replying to these Despatches, because 1 fide that these expressions of opinion by numerous and intelligent bodies of men required more than mere acknowledgment on my part; and I was not prepared to say more on a subject which it was necessary for Her Majesty's Government to take under their serious consideration before any decision could be promulgated. I can now only repeat, that the representations in question have been fully attended to before any conclusion was arrived at; and that the zeal and intelligence with which these measures have been canvassed in anticipation, afford the surest guarantee that the Constitution, if deficient in any particulars, will be gradually adapted to the wants of the community by the will of the community itself. And T must conclude with expressing the satisfaction of Her Majesty's Government in finding that, notwithstanding unavoidable differences of opinion on questions of detail, your own exertions in this cause, which are so highly appreciated by themselves, have met also with the marked approbation of so large a portion of the people over whom you preside. I have, &c.