HC Deb 04 June 1849 vol 105 cc1125-38

said, that it was not his intention to occupy the time of the House at any length in introducing the Bill which he had now the honour to ask permission to bring in. Those Members of the House who had read the papers already laid on the table, would in a very great degree have mastered the details of the Bill which he had now to submit. That Bill was framed with the view of meeting the wishes of the colonists themselves, and, as far as possible, proceeded on the basis of the constitution which now existed in New South Wales. Some time ago, in 1847, his noble Friend at the head of the Colonial Department addressed a despatch to the Governor of New South Wales, raising the question of a new constitution for that colony, and holding out the constitution of New Zealand as a model. That despatch attracted much attention in the colony, and the opinion of the colonists was made known by resolutions adopted at public meetings, declaring that any change in the existing constitution would be unacceptable. His noble Friend, therefore, at once determined to abandon his own opinions—to defer to those of the colonists, and to frame a general constitution for the Australian colonies similar to that which now existed in New South Wales. That constitution consisted of a governor and legislative council of thirty-six, of which one-third were members appointed by the governor, and the remaining two-thirds elected by the people. This constitution had worked in a manner generally satisfactory to the colonists, as the papers on the table showed; and therefore, after much consideration, it was determined to adopt it as the basis of a future constitution for these colonies severally. The object of the present Bill was, therefore, to establish this constitution. In New South Wales a desire had long existed for a separation of a portion of that colony—the southern portion—Port Phillip, from the colony of New South Wales. The first object of the Bill was, therefore, to create Port Phillip a separate and distinct colony under the name of Victoria. The next object was to confer on all the Australian colonies, including New South Wales, Victoria, Van Diemen's Land, South Australia, and Western Australia—the latter conditionally—a constitution similar to that now existing in New South Wales. He said "conditionally" as regarded Western Australia, because, until it was in a position to defray the expenses of its own government, it was not thought expedient to confer upon it representative institutions. Another object was to create a federal union of these colonies for certain general purposes. It was intended that these colonies—having each separate and independent legislatures—should be empowered to elect certain members to form a general assembly of the whole union. This assembly would have its functions and powers defined in the Bill, the purpose being to confine these functions to defined and fixed objects, of what might be called imperial importance as regarded the united provinces. The general assembly would have power to establish a supreme court. It would have the regulation and management of weights and measures—of the post-office within the colonies; it would legislate on all matters concerning roads, railroads, and canals, traversing more than one colony—it would have the superintendence of beacons and lighthouses—and would generally have the regulation of all matters affecting the common interests of the colonies. The Bill also made provision for a civil list for the colonies. It was not indeed proposed to alter the civil list where it was established, as in New South Wales; but, on the other hand, it was proposed to give power to the legislative councils to alter its amount. It was proposed to give these bodies power to alter or reduce the salaries of the civil officers Comprised in the civil list, by Bill, whenever they thought proper, with one exception. It was not proposed to give them power to alter the salaries of the governors or the judges without the sanction of the Grown. All other items might be altered by Bill, which would come into operation without any suspending clause, in the colony to which it applied. This power was not possessed by the New South Wales legislature. It was further proposed to give power to each governor to alter the distribution but not the amount of the civil list fixed for his colony by the general council. Another object of the Bill was to readjust certain sums which were now appropriated for the purposes of public worship. By the existing Act, a sum of 30,000l. was set aside for this purpose yearly in New South Wales, and was distributed according to certain proportions, which it became necessary to reconsider on the eve of new colonial arrangements. The Bill provided that the sum of 28,000l. should be retained for New South Wales, and a sum of 6,000l. was allotted for the new colony of Victoria—au arrangement to which he hoped no objection would be made. In Van Diemen's Land a considerable amount, no less than 14,000l or 15,000l., was devoted to a similar purpose. It was, however, a convict colony, and anybody would see that in such a settlement it was necessary to take more ample means for the purpose of providing spiritual instruction than would be requisite under other circumstances. These sums were not devoted to any particular sect, or he should rather say that in New South Wales they were divided between Episcopalians, Presbyterians, Roman Catholics, and Wesleyans. In South Australia no such provision had hitherto been made, and it was not intended now to assign any particular sum for this purpose. Another object of the Bill was to amend the constitutional Act of New South Wales, as regarded municipal corporations called district councils. In 1842 these councils were created, and empowered to levy rates for certain local purposes. The Act establishing them, however, proved quite ineffectual; and it was now proposed to enable municipalities to dissolve existing councils, and apply, if they thought proper, for the creation of new ones, in such a manner as to lay the foundation of a sound system of municipal government. It was also proposed to give these colonies a very important privilege, not hitherto conceded directly by the Imperial Legislature. There was but one chamber in New South Wales. It was intended that in future the colonies should have the power of altering and varying their own constitutions, and, if they so pleased, of establishing two chambers, or adopting the old form of colonial government—that of a governor, a council, and assembly, in lieu of a governor and a legislative council. The colonies would thus have power to preserve their constitution in harmony with an enlightened public opinion. At the same time, it would be provided that any such changes before they took effect should be sanctioned by the Grown. Another great object of the Bill was to attempt to place the colonial trade on an equal footing between colony and colony, so as to place them in their commercial relations to each other on precisely the same footing as the counties of England. The general council or assembly would have power to amend the several tariffs as they thought fit. In the case of any of the colonies desiring an alteration in the tariff, they would have to proceed with an address to the Governor General of Australia—an office created by the Bill—who would have the power to summon the general assembly. As to Western Australia, that colony would not be included in the arrangements which he was enumerating; but a provision would be made in this Bill by which that colony would be admitted to the advantages enjoyed by the other colonies, so soon as it was in a condition to defray its own local expenses. He had now given a brief description of the Bill, the details of which, he hoped, would be found in strict harmony with the principles which he had indicated. He was aware that many desired that a different constitution should be given to these colonies—that the old form of colonial government of two chambers should be adopted; but this Bill proceeded upon the basis of leaving undisturbed the existing constitution of New South Wales—an arrangement which would be the most acceptable to three colonics out of the five. However, he repeated, that if the colonies chose to adopt another form of government, they would be at full liberty to modify the form of constitution under which they were to live, as their own interests might prompt them. He had only to add, that the Bill would be in the hands of hon. Members in a couple of days, and he hoped that its provisions would be well considered before any opinion was pronounced upon them. The hon. Gentleman concluded by moving for leave to bring in the Bill.


said, that as this Bill would lead to considerable discussion in its progress though the House, it would be premature on that occasion to enter at length upon the subject; but he wished to offer one or two observations which occurred to him upon the statement of the hon. Gentleman the Under Secretary for the Colonies, the more so, as the observations which he had to make would be generally favourable to the principle of the Bill; for, in his opinion, both the Minute of the Privy Council and the Bill itself promised a considerable advancement in the principles of colonial legislation; and his object was to assist the hon. Gentleman in rendering the Bill as efficient as possible. Before, however, he adverted to the statement of the hon. Gentleman, he would allude to the state of the franchise in our Australian colonies, upon which the hon. Gentleman had not touched. At present there was no franchise except in New South Wales; but he supposed that the hon. Gentleman intended to make some provision for the franchise in the other colonies, He apprehended no difficulty in doing so with regard to South Australia; but in Van Diemen's Land and New South Wales he saw very considerable difficulties. In New South Wales there already existed a very limited franchise, and he felt the difficulty of conferring those large powers of legislation which he admitted to be desirable, with a franchise so limited. He was not himself sufficiently acquainted with the state of society in those colonies to form any decided opinion as to the possibility of extending the franchise; but he should think that some provisions might be introduced for the purpose of extending it beyond its present limit, and he hoped that Parliament would not forego the present opportunity of conferring that extension, if it could with propriety be conferred. He fully concurred in the policy of giving free institutions to these colonies; but it would be productive of great danger and difficulty if they constituted anything like an oligarchy there, which possessed the character of freedom in relation to this country, but in relation to the great mass of the population a very different character. He would therefore wait, as to the subject of the franchise, until he saw the provisions of the Bill which the hon. Member was about to introduce. As to district councils, although he was inclined to think that it might be extremely well if there was something of the kind in Australia, he doubted if it was wise to go so far as the hon. Gentleman proposed; for the question of district councils was not quite res integra in those colonies; there was already a prepossession against them, arising from the total failure of the Legislature in its attempt to introduce them. He desired to carry the principle of local government as far as possible; but, since that mode of government was under a cloud, in consequence of the unsuccessful attempt which had been made, he doubted whether it was wise to impose those district councils upon the colonies by an Act of Parliament. The colonics knew nothing about district councils, except that they had been enacted by a law for New South Wales, but had never come into existence, and that even the name of them was extremely unpopular. He now approached a most important question—the constitution of the legislative body—whether there should be a double or single chamber; and, expressing no confident opinion, but stating freely what occurred to him on the subject, he hoped that something more would be done than the hon. Gentleman proposed towards suggesting to the colonies that form of legislation which was not only consecrated to our recollections and sanctioned by long experience, but which had received such new and marked testimony in its favour from the experience of the United States of America. The hon. Gentleman was acting, and he thought properly acting, on the public sentiment of the colonies, rather than on any abstract theory, however sanctioned by experience: the evidence of the sentiments of the colonies on the subject was very scanty, but so far as it went it was not unfavourable to the principle of a double chamber. Sir William Denison said, that under the peculiar circumstances of these colonies, he recommended the adoption of a second or upper chamber; and Sir Charles Fitzroy, writing on the 11th of August, 1848, with particular reference to the state of the colony of New South Wales, expressed his opinion that the general feeling of the community was that the introduction of a second chamber would be extremely advantageous; and New South Wales was the only colony where there was any primâ facie objection to a double chamber, because already there was in that colony a single legislative chamber. However, the utmost extent to which he would go would be to reverse the form of legislation which the hon. Gentleman proposed to adopt. The hon. Gentleman proposed to constitute, in the first instance, a single chamber, but with power to resolve itself into a double chamber; he, on the other hand, would propose to constitute in the colonies which had at present no representative institutions, in Van Diemen's Land, South Australia, and Victoria, a double chamber, with power to combine themselves into a single chamber; leaving New South Wales as it was, with a single chamber, but giving it the power to resolve itself into a double chamber, if such a proceeding was deemed requisite. The great anxiety, however, which he felt on this subject, was when he considered the constitution of the federal legislature; he felt that there must be great difficulty in working a federal legislature, unless it was constituted upon the principle of a double chamber. Nothing would afford a stronger illustration of that than the admirable working of that principle of a double chamber in the United States. The effect of it was to bring different elements into play, and so to maintain the balance of power; and it would be with the greatest regret that he should relinguish the hope of bringing into play that same principle in all our colonies. In the Federal Legislature of America, one chamber was constituted by direct election; in it the population was represented according to its numbers; in the other the States were represented as constituting political unities; and thus many of the advantages which this country enjoyed from an hereditary aristocracy were obtained. The greatest difficulty, therefore, he felt to be with regard to the federal legislature; they were met at once by the difficulty, whether the representation was to be on the basis of population, or to be founded upon the notion of treating the different colonies as individual political bodies. According to the proposal of the hon. Gentleman, New South Wales would have half—twelve out of the twenty-five delegates; and although he admitted that New South Wales was entitled to a considerable share of the representation, it seemed to him, on the other hand, most important that the other colonies should enjoy a perfectly free and fair representation; and in no way could both objects be attained except by adopting the principle of a double chamber. He entirely approved of the proposal to confer upon the colonies the power of modifying their own constitutions, and their own civil lists; but he had some doubt as to the civil list of Van Die-men's Land—whether it should remain as at present. The salary of the Governor of Van Diemen's Land, though by no means too high in proportion to his duties and the importance of the situation, was certainly a very high salary if considered simply with reference to the colonial community; and though he was unwilling to increase the colonial charges in the estimates, he thought it not unjust that we should take upon ourselves and bear on our own estimates a portion of that charge. [Mr. HAWES: We do so.] If that was so, he was quite satisfied. Now, he hoped that, during the discussion on this Bill, the House would be informed what were the views of the Government as to the bearing of this measure on the question of transportation. He was afraid that that was the great difficulty of every Government in the matter of colonial legislation; for, no doubt, there was great difficulty in uniting free institutions with a system of transportation to any great extent; but the hon. Gentleman not having alluded to that subject, he would not further advert to it, except to express his hope that the views of the Government in reference to it would be stated to the House in the course of the discussions on the Bill. There was only one other point on which he wished to make an observation, and that was an observation more in the nature of an objection than any that he had yet made. On the other points he had not yet pretended to express any decided opinion, which he should not feel himself at liberty to qualify hereafter, or which he should feel inclined to press against the deliberate opinion of Her Majesty's Government. He confessed that he did not understand that passage of the report of the Privy Council which recommended the establishment of one uniform tariff in the Australian colonies by Parliament. He thought there was great danger in any such proposal; for it was an extension of the sphere of Parliamentary legislation. Parliament had not hitherto interfered with the customs regulations of these colonies. Although in some instances Her Hajesty had been advised to refuse Her consent to such regulations, no direct Parliamentary interference had been attempted. He entirely granted that uniformity in the colonial tariffs would be productive of great advantages, and he should be glad to see the different colonial constitutions embrace that view of the matter by legislation of their own; but he was extremely unwilling, when he saw no intolerable inconvenience, there being now a very considerable commerce carried on between these colonies: in the absence, therefore, of any overruling necessity, he should be extremely unwilling to extend the sphere of Parliamentary legislation by direct enactment; and there was a still further objection to that proposal, because the power of altering that uniform tariff was to depend upon the general or federal legislature: the general or federal legislature was to have in its hands the whole subject of the customs duties, and might enact one tariff for New South Wales, and another for Van Diemen's Land, as there were different duties upon spirits in England, Scotland, and Ireland; but no other body could make those changes, and, therefore, whilst Parliament was now invited to proceed to direct legislation on this subject, the colonial organ which was to have the control of these tariffs was not to be called into existence until a contingency happened which might never arise, for the federal legislature was not to assemble until two of the colonies should concur in summoning it to meet. This uniform tariff might consequently remain in force for a considerable time; it would probably excite great jealousy and irritation of feeling amongst the colonists, and seriously mar the grace which this proposed measure would be understood to confer. He had no further observations to make upon that occasion; with respect to those which he had made he had spoken freely what occurred to him, and he hoped that the spirit in which his suggestions had been offered would not be misunderstood.


agreed with the right hon. Gentleman, that a discussion of the proposed measure at that time would be premature; and he also agreed in almost all the other observations which that right hon. Gentleman had made. Certainly one very great difficulty was in the formation of the federal legislature; and it was a very momentous question whether it should consist of a single or double chamber. He believed that the hon. and learned Member for Sheffield, in his book on the colonies, had given his decided opinion in favour of a double chamber, founding that opinion upon the experience of its good effect in America, and of the bad effect of a single chamber in France; and he (Mr. V. Smith) hoped that the Government would pause before they determined on establishing a single chamber in those colonies, and especially a mixed chamber, composed partly of representatives and partly of nominees, which wanted altogether the democratic principle of a single chamber. Indeed, he viewed with great apprehension the notion of a federal government at all; for he believed that the distances which it would be necessary to travel, and the difficulties of communication, would render it much less easy to work in Australia than it was in the united States. The right hon. Gentleman had not alluded to the proposed alteration as regarded the churches; but that was a considerable alteration in principle. The present principle was, to pay a stipend in proportion to the voluntary contributions of the different sects. [Mr. HAWES: Only in South Australia.] He understood it to be proposed now to divide the sum between them according to the last census; and that no alteration of the population afterwards should make any difference. [Mr. HAWES: No, no!] Then he had misunderstood the proposal, and would wait till he saw the Bill. His principal reason for rising was this, to warn the House that the great danger of making these experiments was the manner in which they might affect the colonists themselves. He should not object to making the experiments, if they were not dealing with the interests of men who were at so great a distance, of whom they knew little, and who were extremely jealous of interference on the part of the British Parliament. But it was clear that amongst the colonists there was not the slightest notion of this attempt to impose upon them a federal government. They would see in the papers laid before the House that a petition had been presented from New South Wales, praying that they would not grant any constitution to the Australian colonies which had not received the sanction of the colonial legislatures. He did not mean to say that they were bound to pursue that course; but he did think it might be wise to ascertain whether the proposed measure was likely to be received by the colonists themselves with anything like a unanimous feeling; because, if not—however desirable it might be to legislate on the subject—it might be better to wait for a year or two. If this measure was not likely to be received with unanimity, he would ask where was the difference between it and the scheme of the hon. and learned Member for Sheffield, which was objected to by the Government the other evening? The objection made to that scheme was, that the English Legislature ought not to pass such a Bill without the consent of the colonies. He would not say that this Bill would be rejected by the colonists. It might probably be assented to by them; but he thought that they ought to wait until that fact could be ascertained. Some of the colonies had an objection to the system of combination, especially Port Phillip, where the inhabitants had refused to elect a representative, or rather, in mockery, had elected the noble Lord the Secretary of the Colonies himself. If, therefore, the Bill was not acceptable to the whole of the colonies, it might be productive of considerable mischief, instead of good. Again, they would find that for New Zealand a Bill had been sent out from this country, which the Government found it would be impossible to carry out, and it had to be altered. Such a state of things ought to be avoided: though he had no doubt that the noble Lord at the head of the Colonial Office had assented to the scheme with a view of promoting the happiness and good government of the colonies, yet he must urge upon the noble Lord not to press it forward until the opinion of the colonists themselves, relative to it, could be ascertained.


considered the measure which had been brought forward by the Government the most liberal which had ever been offered to the colonies. With respect to their legislative powers, the colonists were, under the Bill, to have the whole management of the civil list, with the exception of the settlement of the judges' salaries and that of the governor. He considered that provision of the Bill so founded in wisdom that it would be impossible for the colonists not to accept it. With respect to the question of federal governments, the various colonies were to have separate local governments, excepting on matters which concerned the interests of all; and he believed that no difference would exist as to the policy of that provision. With respect to the tariff, he apprehended that each colony would have the power to regulate the scale of its own tariff, the federal government only interfering to see that the measures of one colony did not interfere with the interests of another. As a whole, he considered the measure most liberal and just; and, as such, he trusted it would be accepted by the House.


acknowledged the extreme importance of the measure, and trusted that full time would be given for its consideration before it was passed into a law. He was sorry to observe, from what had fallen from the right hon. Gentleman the Member for the University of Oxford, that great difference of opinion existed on the measure. He would not then enter upon the question of the establishment of a federal government, or whether there should be a single or double house of legislature, except to bear his testimony to the extreme importance attached to the double legislature in the United States. There were so many questions of importance in the measure, that he did not know whether those which had been alluded to, or those which had been omitted, were the most important. The hon. Gentleman who spoke last had said that the local legislatures were to have the management of the civil list. Now, he wished to know whether that power was to extend to the management of the land fund? Whether the local legislatures were to have the power of deciding at what prices the public lands in the colonies were to be sold, or whether every acre—good or bad—favourably or unfavourably situate, was to be sold, independently of those legislatures, at an upset price of 1l, per acre? He wished to be told whether that matter was to be left to the local legislatures—to that House—to each colony individually—or to the federal legislature, if one ever met?


Sir, in answer to the question of my hon. Friend, I beg to state that there is an Act of Parliament, passed some time ago, with regard to the price of land; and I conceive that it will not be in the power of the New South Wales, or any other colonial legislature, to alter an Act of Parliament. Whether or not they should get that power, may be a proper question for discussion when this Bill is farther advanced. I shall not discuss the measure at the present moment. I have heard with great interest the speech of the right hon. Gentleman the Member for the University of Oxford, making various suggestions; and I think it is better not to give a decided opinion upon those questions at the present moment, but to leave the whole of them for discussion afterwards. With regard to one point on which the right hon. Gentleman has laid considerable stress—a point certainly of considerable importance—whether there shall be one assembly, or whether there shall be a council and an assembly, as we have in our older colonies, I think the right hon. Gentleman has hardly laid sufficient weight on the objection which the people of New South Wales have made to the proposition of a council and assembly. The right hon. Gentleman says that in the United States the institution of the Senate is of the greatest importance, and is most valuable in maintaining harmony in the whole of the States, and in the general working of the constitution. I quite agree with him; and I think that if you could form such a senate as that of the United States, it could not fail to be of the greatest value; for I consider that the good working of the constitution of the United States is mainly owing to the particular form of the Senate. But those who hesitate to constitute such a body in New South Wales, say that the whole value of a senate or a council depends upon the elements out of which it is composed; and they say that when they can find in the colonies such eminent men as the United States have sent to this branch of the legislature, and with the same character as legislators—because these men are remarkable for talent and character, and for their weight and consideration in their respective States—when you can find such persons, there can be no doubt that they, meeting together, would form, in combined shape, an institution of great weight and authority. But they who object to the formation of such a body in New South Wales, say we have no such materials out of which to form a council; and if we have no such materials—if we have no class of persons among us who, from their property, and the consideration in which they are held in their respective neighbourhoods, would form a body to whose decisions independent men would how, then we should in their place have a council composed of the mere nominees of the Crown, and of persons holding office, who would interpose between the executive and the assembly, taking from the executive the responsibility of putting their veto on the acts of the assembly, and at the same time their acts would not have that weight which the property and personal character of the members might give. That is a question which I think depends very much upon the state of society in a particular country. I do not think that in all our colonies of North America, the constitution works equally well. I know that in Lower Canada a similar body which was framed by the Crown, with a view to interpose a barrier between the executive and the assembly, was found to be of little use, because they did not carry with them the sentiments of the people at large. At the same time I agree with the right hon. Gentleman that in New South Wales there is a great balance of opinion—the feelings of different parties are very close, and it is a point on which we should not hastily pronounce a decided opinion. Those who object to a council and an assembly—who are in favour of only one assembly—say that some years hence, perhaps, it may be desirable to have two houses, but that constituted as society now is, one house would be preferable. I am quite willing to leave that and the other matters as subjects for further consideration.


explained, that he had not asked whether the colonial assemblies could override an Act of Parliament, but whether the Act itself would be modified to give them powers.


thought this a most unpropitious time to propose new constitutions, when the minds of men throughout the world were so unsettled on these points, and that by submitting different forms of government for the option of the colonists, they were throwing an apple of discord amongst men who, from their habits and pursuits, had neither inclination nor leisure for their arguments. Ministers should have profited by their failure in New Zealand, and abstained from these crude experiments until a few years more of the development of these colonies would enable them to decide upon the best form of constitution.

Leave given.

Bill to be brought in by Mr. Hawes, Lord John Russell, and Mr. Labouchere.

The House adjourned at a quarter before Twelve o'clock.

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