The New Zealand Legislative Council: A Study of the Establishment, Failure and Abolition of an Upper House 9781487599881

Citation preview

THE NEW ZEALAND LEGISLATIVE COUNCIL The New Zealand Upper House, which closely resembled the Canadian Senate, was abolished in 1950 and New Zealand became the only democratic country in the world without either an upper house or a formal, written constitution. In this historical and analytical study, the author explains the abolition and assesses its consequences over the past twenty years. He throws light on the strengths and weaknesses of the bicameral principle, the parliamentary system, and in particular the consequences of abolishing an upper house. KEITH JACKSON was born in the United Kingdom in 1928, educated at King Henry VII Grammar School, Sudbury, Suffolk, and the University of Nottingham. He took up a post as assistant lecturer in History and Political Science, University of Otago, in 1956; subsequently appointed Senior Lecturer in 1962; Junior Fellow, Institute of Commonwealth Studies, London, 1963; appointed to the chair of Political Science, University of Canterbury, in 1968. Co-author of New Zealand Politics in Action with A. V. Mitchell and R. M. Chapman, co-author with John Harre of New Zealand in the Thames and Hudson New Nations and Peoples Library, editor of Fight for Life published by the New Zealand Institute of International Affairs, and contributor to numerous other books and periodicals. The author has also contributed commentaries on New Zealand politics and current events on radio and television.

This page intentionally left blank

THE NEW ZEALAND LEGISLATIVE COUNCIL A Study of the Establishment, Failure and Abolition of an Upper House

W. K. Jackson

UNIVERSITY OF TORONTO PRESS

First published in North America and Great Britain by University of Toronto Press Toronto and Buffalo ISBN: 0-8020-1860-2 Microfiche ISBN: 0-8020-0190-4 © W. K. Jackson 1972

illustration: Members of the New Zealand Legislative Council pose after the final adjournment 1 December 1950.

Cover

Contents Introduction

vii

ESTABLISHMENT OF THE LEGISLATIVE COUNCIL

1. 2. 3.

British Colonial Policy and the Bicameral Principle 1846-52 Why a Nominated Upper House? The Problems of establishing a Colonial House of Lords

2 10 21

APPOINTMENTS

4. 5. 6. 7.

The 'Life Peers' 1854-91 Why the System Failed 'The Seven Year Itch' The Maoris

36 52 61 78

ROLE OF THE COUNCIL

8. 9. 10. 11. 12.

Initiation of Legislation Revision of Legislation Rejection of Legislation Relations with Cabinet and the House of Representatives Relations with the Governor

13. 14.

The Failure of Reform Proposals The Unsuccessful Reform of 1914

87 95 110 123 136

REFORM

154 166

CAUSES AND CONSEQUENCES OF ABOLITION

15. 16. 17. 18.

The Development of Abolition Proposals S. G. Holland and Abolition The Consequences of Abolition Homily

177 183 198 212

Appendices

217

Bibliography

246

Index

259

This page intentionally left blank

Introduction

On 18 August 1950 the Clerk of the Legislative Council of New Zealand formally presented the Legislative Council Abolition Bill 1950 at the bar of the House of Representatives, without amendment. The bill, having passed both houses, was forwarded to the Governor-General for his assent. Three years short of its centenary the New Zealand Legislative Council ceased to be. New Zealanders had assigned the upper house to a growing pile of constitutional debris. The 82 clauses of the New Zealand Constitution Act 1852 were now whittled down to 19 (many of which are machinery clauses). The elaborate provisions for Provincial Councils and Superintendents had been swept away as early as 1876, Governors had for all practical purposes lost their power by the turn of the century, and from 1 January 1951 the General Assembly of New Zealand was to be reduced to an 80-member single chamber.1 New Zealand thus established a precedent—possibly a fashion in the Commonwealth—by abolishing the upper house of the General Assembly. There had, of course, been several earlier examples of unicameral governments in the British Empire, although these had usually been part of federal or quasi-federal arrangements. The original provinces of New Zealand had had single-chamber legislatures; the Canadian province of British Columbia never had a second chamber, whilst in all the other provinces with the exception of Quebec they have been abolished. In contrast, only Queensland amongst the Austrah'an states has followed the Canadian example. Elsewhere, in non-federal con1

The size of the House of Representatives was increased to 84 in 1969 under the provisions of the Electoral Amendment Act 1965. It will steadily increase hereafter in proportion to population increases.

viii

texts, there have been several instances of the abolition of upper houses, but almost invariably these have proved to be of but temporary duration, such as the abolition of the House of Lords during the Cromwellian period, or the Eirean Seanad in 1936. New Zealand, therefore, would appear to be the first of the old sovereign dominions to shed its upper house with apparently permanent intent and its example has since been followed by a number of the newer Commonwealth states, the latest to consider the change being Ceylon. Why New Zealand? For all its past reputation in the sphere of social welfare, New Zealand quite properly had never enjoyed a reputation for constitutional innovation. Moreover, more often than not experiments with unicameralism in the past have been associated with periods of revolutionary upheaval or reconstruction, as, for example, in France in 1790 and 1850, Greece in 1860, Turkey in 1923, or, more recently, Denmark and Egypt in 1953. Thus it has not been unusual for the abolition of upper houses to be preceded either by revolution or at least a referendum. In contrast, the abolition of the New Zealand Legislative Council was doubly unusual, for not only was it abolished by an ordinary act of Parliament without any preceding upheaval or test of public opinion but it was abolished by a conservative—not an innovating —government. Perhaps even more surprising, and altogether unlike most other countries that have disposed of their upper chambers, no elaborate overhaul of the nation's constitutional machinery was scheduled to follow abolition. The government of the day simply promised to inquire into the possibilities of replacing the old upper house, but apart from that only minor technical changes resulted. No decision was taken at the time about the wisdom or otherwise of New Zealand becoming a unicameral state, and no decision has been taken since. Denmark in 1953 replaced its old upper house with an enlarged lower house, a new written constitution, an Ombudsman, and numerous other provisions. In contrast, New Zealand did not even use the occasion of abolition as an opportunity for a reassessment of the working of its machinery of government. This almost careless lack of interest in constitutional machinery which characterized the abolition of the Legislative Council also typified much of its nearly century-long existence. The Legislative Council clearly failed as a second chamber; there can be no doubt of that, for this is one aspect of its record on which all are agreed. The problem was to discover why it failed and when failure became obvious.

IX

There had always been reservations about the nature of the upper house and it may be that any form of second chamber would eventually have failed in this essentially egalitarian system. The problem of whether there should be a second chamber and, if so, what form it should take is a longstanding one in many countries, and few non-federal states have resolved it successfully. If it has been customary to stress the value of a second opinion in government, rather less emphasis has been placed upon just whose opinion this should be, so that, although second chambers successfully survived the transition from privileged to democratic society, their position in newer states and more advanced democratic societies has never been easy. In New Zealand, in particular, there has always been a large gap between what might be termed the 'theory' of bicameralism and the practice as exemplified by the Legislative Council. Political institutions are mainly modelled upon example and influenced by tradition; they are rarely constructed according to specific needs of government or considerations of efficiency. Hence bicameralism has always been an article of faith buttressed by selected examples or refuted by equally partial arguments. It certainly is not what is so often assumed, a proven system of democratic government applicable to widely different circumstances or places. The establishment of bicameral institutions throughout the old British Empire was the result not of any developed body of theory but of usage—in particular, the belief that an essentially a-typical second chamber, the House of Lords, represented a basic element in a stable constitution. From British experience with the House of Lords it followed, or was thought to follow, that a second chamber would dissociate itself from the rough and tumble of party politics (whether by emasculation or forebearance was never made clear). The resulting chamber of political neuters would then somehow represent the nation as a whole against the sum of its parts in the lower house. Such a system might have had some logical basis in a federation, or before the formation of disciplined political parties, but the latter event has almost wholly undermined its rationale in the twentieth century. Beyond this, it was assumed that the upper house would revise legislation unhurriedly and sensibly and that the lower house would then accept such amendments on their merits. Even if second chambers had measured up to such assumptions they would of course reveal a fundamental distrust of the everyday process of democracy, together with a belief in the possibility of a constitutional father-figure (significantly, upper houses often consist of elder statesmen)—both essentially unacceptable

X

propositions to a New Zealand electorate. More important are the practical problems involved in setting up such a house. It is true that when the House of Lords was concerned to defend its members' interests it did so with zest, but how often do such interests coincide with the nation's best interests? Indeed, who is to decide what are the nation's best interests at any given time? Even if it is gratuitously assumed that the House of Lords does frequently represent the United Kingdom's best interests, non-federal British colonies might have very great difficulty in finding interests in any way comparable with those of a House of Lords, even a House made up predominantly of life peers! Upper houses in former colonies often lack any effective social base capable of withstanding the democratic aura of the lower house to which governments are responsible. Indeed, events in the United Kingdom suggest that even the House of Lords, for all its centuries of prestige and tradition behind it, depends very much upon sufferance. The search for the causes of the failure of the Legislative Council proved more protracted than one might have expected. It has become customary to date its failure from the constitutional controversies of 1891-2, but in practice these controversies relate directly to decisions taken as early as 1863. Indeed, in many senses, the failure of the Legislative Council was inherent in its original design, and it is perhaps surprising to find that midnineteenth century opinion was sharply divided over the merits of various types of second chambers and even over the necessity of having a second chamber at all. Hence the question of why New Zealand was given a particular type of upper house, or an upper house at all, has a direct bearing on why the position was reversed in 1950. The causes and extent of its all too obvious failure, together with the reasons why it was not reformed, threw an interesting light on the way in which democratic institutions are regarded in New Zealand. For nearly one hundred years successive governments were reluctant to allow a nominated upper house any real role in the government of the country, and for the last fifty years of its existence successive governments were prepared to connive at its blatantly obvious faults because it offered them advantages in the field of patronage. Perhaps even more interesting, New Zealand electorates openly scornful of the Legislative Council accepted its continuance without quarrel. Thus the real significance of the abolition of the Legislative Council in 1950 is twofold. On one hand, abolition, as such, merely ratified what had unofficially taken place decades before, for New Zealand had long been a unicameral country for all

xi

political purposes; on the other hand, the actual act of abolition was to help stimulate a renewed interest in constitutional processes which has still not worked itself out. In many ways the old Legislative Council typified the New Zealander's attitude to democracy—a long-suffering, uncritical belief in forms. The removal of the upper house changed nothing substantively, although what has happened in the two decades since abolition has for the first time in many decades given rise to second thoughts. In the event, the abolition of the Legislative Council has proved to be one of the most important New Zealand constitutional changes of this century. The right policy carried out for the wrong reasons, it has done much to stimulate interest in the machinery of state amongst a number of influential groups. If blind faith in parliamentary institutions continues to characterize most New Zealanders, the way has nevertheless been opened to innovation and improvements. The overriding moral to be drawn from the history of the Legislative Council is, perhaps, the extraordinary degree to which the political parties and the mass of the population are prepared to tolerate patently useless national institutions for such long periods of time. Habit can be a virtue, but uncritical acceptance, whether of government or of institutions, can only serve to undermine the whole basis of democracy. The fate of the New Zealand Legislative Council is a salutary example of what can happen to legislative institutions in what appears to be a flourishing democratic state. It is fortunate that the Legislative Council was disposable; the story might be much more serious if blind faith ever permitted the lower house to suffer a similar fate or to become out of touch with the needs of the age.

This page intentionally left blank

The New Zealand Legislative Council

1 British Colonial Policy and the

Bicameral Principle 1846-52

It has often been claimed in the past that the British House of Lords is such a unique institution that, if it had not developed as it did, it would have been impossible to invent. It was certainly impossible to copy, as a number of colonies quickly discovered in the course of the nineteenth century. Before the loss of the American colonies few attempts had been made to reproduce English institutions overseas. Some of the proprietary colonies exhibited exotic imitations,1 often unworkable, and it was sometimes claimed that similarities were to be found amongst the institutions of the royal colonies. Any likenesses were more imagined than real, however, for even if the assemblies of the royal colonies vaguely resembled the House of Commons, the Governor's Council bore little resemblance to an upper house, being closer to a cabinet or privy council. Even so, both in England and the colonies, the habit of making comparisons established itself at an early date. After the loss of the American colonies, official reaction against the older, freer and easier methods of self-government led to attempts to establish genuine upper houses. The first attempt was made in Canada with the Constitutional Act of 1791 and the Legislative Council provided for in that Act has been described as the 'first real upper house in British colonial history'.2 This institution was not intended to replace the old Governor's Council, which continued under the title of 'Executive Council', but it did take over its legislative role. Members were to be appointed for life, 1

2

For example, John Locke's constitution for Carolina which included an hierarchical aristrocracy with such romantic titles as 'Landgrave' and 'Cassique', or that framed for Georgia by James E. Oglethorpe. R. A. Mackay, The Unreformed Senate of Canada, p. 18.

3

there was to be no restriction of numbers and an attempt was made to found a 'respectable aristocracy' as a support and safeguard for the monarchy. This latter provision, which attempted to link the right of summons to the Legislative Council to hereditary titles of honours, represents one of the earliest and most far-reaching attempts ever made to reproduce the House of Lords in the colonies. It was, of course, foredoomed in the pioneering conditions of the colonies, for, as Carleton wrote as early as 1786, 'It is impossible for the Dignity of the Throne, or Peerage to be represented in the American Forests ... '.3 In the first half of the nineteenth century, however, there were two modes of constitutional advance for Crown Colonies—the 'old representative system' of Governor, nominated upper house and elected assembly, a crude approximation to the British system, and the method based on the mixed chamber of Demerara in which elected members sat with nominees. Because of the problems associated with nominees, James Stephen, permanent counsel to the Colonial Office, advocated a single chamber with an elected majority for representative government in Newfoundland in 1831. He ridiculed the idea of a colonial upper house with an aristrocratic basis, claiming that nominees aroused hostility rather than veneration : They relieve him [the Governor] from responsibility but not from obloquy. They impart neither dignity to his station, nor weight to his authority, but render him either listless when he ought to be active, or daring when he ought to be cautious.4 To Stephen it was not merely the lack of an aristocracy in a colony that was important, but also the total absence of such ancillary elements as the civil and ecclesiastical ancient corporations or even traditional party differences.5 There can be little doubt that Stephen was correct in the views that he expressed at that time, but there was a great gulf fixed between what was desirable and what was practicable, for in the circumstances of the time if there was to be an upper house at all it had to be nominated, however undesirable this might be. Elected upper houses, it was widely believed, opened the way to Carleton to Shelburne, 20 January 1768, in Documents Relating to the Constitutional History of Canada 1759-1791. A. Shortt & A. G. Doughty, Vol. I, p. 296. * A. H. McLintock, The Establishment of Constitutional Government in Newfoundland, 1783-1832. Appendix VII, p. 208. 5 Stephen to Colonial Secretary T. Spring Rice, 30 June 1834, in P. Knaplund, James Stephen and the British Colonial System 1813-47, p. 269. 3

4

BRITISH COLONIAL POLICY AND THE

republicanism, whilst unicameralism ran counter to established British tradition and conjured up fears of radicalism and democracy. Even Lord Durham, whilst amply confirming all the strictures levelled at nomineeism, failed to offer any constructive alternative in the case of Canada in 1840 and continued to adhere to the bicameral system with a nominated upper house.6 Within a few years the problem was to assume added urgency because of a number of important constitutional changes pending in various colonies. The introduction of representative government in the Cape and the Australian and New Zealand colonies resulted in a flurry of constitution-making unparalleled until the late fifties and early sixties of the present century. The Colonial Office produced no fewer than nine new constitutions in the nine years after 1846 and the forms of the upper houses to be provided proved one of the more contentious issues. In particular, the impetus imparted by the innovating conservatism of the new Colonial Secretary, Earl Grey, resulted in an extraordinary efflorescence of differing forms of upper chambers, three nominated, four directly elected, and one colony without an upper house at all. Earl Grey, on becoming Colonial Secretary in Russell's Whig Ministry in 1846, had inherited the constitutional proposals prepared under his predecessors. The constitution designed for New Zealand was characterized by an elaborate system of indirect representation of the type popular in Europe at that time; a system previously sponsored by the New Zealand Company and advocated by James Stephen, now Permanent Under-Secretary at the Colonial Office. Grey retained the nominated upper house, contenting himself with the stipulation that all its members were to be drawn from the upper houses of the provinces (who were also nominated), thereby introducing a crude federal element. Despite this stipulation and all the elaborate provincial paraphernalia, the constitution remained basically 'the old representative system'. In practice, there can be little doubt that this arrangement would have proved cumbersome and unworkable, but in any case the New Zealand Governor prevented it coming into effect because of the country's race problems. The decision to suspend the constitution for five years affected, in turn, plans for New South Wales. Earl Grey had intended to use the New Zealand plan as a basis for this neighbouring colony, using an indirectly elected upper house instead of the nominated chamber, but the generally unfavourable « Lord Durham's Report (Ed. C. P. Lucas), Vol. II, pp. 326-7.

BICAMERAL PRINCIPLE 1846-52

5

reception of the New Zealand scheme led him to change his plans.7 The problem facing Earl Grey had two distinct aspects. There was the question of what form of upper house was best fitted to those colonies which already had a bicameral system, and the much more difficult problem of what to do about those colonies which had developed under the mixed unicameral system and were now approaching full representative or responsible government. In the former case, Earl Grey clearly favoured an elective body whilst in the latter he was expressing readiness, by 1848, to leave it to the colonists to decide if and when the bicameral system should be adopted. There can be no doubt that he personally preferred two chambers, but he did not feel justified in forcing his opinion upon the colonists, especially as he had come to believe that it was of very little consequence whether it [a Congress] is of a single or two chambers. In all our Colonies the second Chamber is so nearly powerless that I believe it to do more harm than good .. .8 Grey still assumed, however, that the nominated element in the single chamber would play an important role and that the Governor and ultimately the Home Government would serve as a screen to retard, disallow, or veto objectionable measures. In discussions on constitutions for the Australian colonies, Grey differed from Stephen, now retired from the Colonial Office but still acting as an adviser. Stephen believed that the basic essential for the development of responsible government was a trustworthy legislature and, despite the practical difficulties, he was now convinced that the scheme of Governor, Upper House and Assembly was incomparably the best for this purpose. 'All colonial history,' he wrote, 'all theory—and I believe all recent experience, are in favour of two Chambers.' He gently ridiculed Grey's scheme for single mixed chambers which would eventually develop into bicameral legislatures, arguing that no colonial democracy would advisedly create a check upon its own cupidity, pride of power and absolute control over the executive authority.9 Benjamin Hawes, Parliamentary Under-Secretary at the Colonial Office, supported Earl Grey, arguing that the ideal solution as seen in Britain might not be acceptable to colonial opinion and that, 7 8 9

A. C. V. Melbourne, Early Constitutional Development in Australia, pp. 353-4. C.O. 881/1, No. 1. Minutes relative to the new constitutions for the Australian Colonies. Minute of Earl Grey, 9 May 1848. Ibid., Minute by James Stephen (undated) 1848. See also Ibid., No. 2. Draft report on the Australian legislatures by Sir James Stephen, 21 February 1849.

6

BRITISH COLONIAL POLICY AND THE

whilst Stephen's 'old representative form of government' might be suited to West and South Australia, Port Phillip and Van Diemen's Land, it was unlikely to prove so effective in New South Wales. He too advocated a break away from the old ideas of rigid uniformity and the granting of greater powers of discretion to the colonists, suggesting that the Imperial Parliament should do little more than create the representative bodies leaving full power to the colonists to work out their own future constitutions.10 Powerful voices were raised against such constitutional laissezfaire and the prospect of elective upper houses caused the Prime Minister, Lord John Russell, to declare that to dismantle the barriers to the elective assembly in this way would mean that 'the body of the Monarchy is left exposed to the assaults of democracy'.11 Something of an impasse had already been reached when, in 1849, the nominated upper house in Canada failed.12 With this failure, it seemed that the old system had broken down beyond all hope of redemption and nominated upper houses finally appeared to be at an end. Grey had already sought to find a way out of bis difficulties by establishing a committee, reviving for this purpose the Committee of Trade and Plantations, a committee of the Privy Council. The suspension of the 1846 New Zealand Constitution had, in effect, reversed the previous priorities, so this committee was set the task of devising new constitutional arrangements for the Australian colonies. It sided with Grey in his belief that the wishes of the colonists should prevail where possible, and because there appeared to be strong support in New South Wales for a unicameral legislature,13 the Committee endorsed that form for the Colony although it still included a nominated element. The Committee also approved the principle that each Australian colony should be permitted eventually to choose the form best suited for it, but that meanwhile all were to adopt the form in use in New South Wales.14 10 11 12

13 14

Ibid., No. 2. Minute by Hawes, 23 March 1848. Ibid., No. 9. Suggestions for the Australian Constitutions Bill. Undated submission by Lord John Russell. The Reform Government introduced the Rebellion Losses Bill and found its policy opposed by a hostile majority of fifteen in the upper chamber. Twelve new Councillors were appointed at the Government's request. For all practical purposes the Canadian Parliament had now become a single chamber. See R. A. MacKay, The Unreformed Senate of Canada, p. 28. C.O. 881/1, No. 4. (Colonial Opinion.) G.B.P.P., 1849/1074. Report of the Committee of Trade and Plantations, 4 April 1849.

BICAMERAL PRINCIPLE 1846-52

7

Changes to the constitution of the Cape were handled in a similar manner. The question of representative institutions there had been smothered in 1842 and then re-opened later by Earl Grey. He laid before the Committee of Trade and Plantations a well-argued series of memorials by the Executive Council and judges of the Supreme Court of the Colony, almost all of them advocating a nominated upper house. In its report15 the Committee pointed out that the nominated Legislative Council proposed was practically the same as that already existing, yet this, it was generally accepted, did not command the confidence of the inhabitants of the Colony and had little influence on public opinion. The Committee members carefully weighed and rejected various ideas for reforming the existing Council because they believed that unless such a body enjoyed public support it would carry little weight or influence when it came to be over-shadowed by a popularly elected assembly. If an upper house were to play an effective part in the constitution, the Committee concluded, it would have to be elective. Members were fully aware of the importance of such a departure, but they believed that the considerations leading to their decision were of too much weight to be disregarded. What was true for the Cape held equally for other colonies and Earl Grey, who sent a copy of the report to the Governor of New Zealand, expected that a similar change would also be needed in Canada.16 Following these reports the Government in 1850 introduced into Parliament the Australian Colonies Government Bill providing that each state in Australia (except Western Australia) should have the same form of constitution, consisting of a mixed unicameral chamber, two-thirds of whose members were to be elected representatives and the rest nominees. All the colonies were to have the power to alter their constitutions and to adopt second chambers, subject to approval by the Imperial Government. No one in the House of Commons at that time openly favoured unicameralism as such, although it was suggested that several keen proponents were to be found there.17 The principles of unicameralism and nomineeism were both attacked from several quarters. It was argued that there was no precedent in the Empire for a single chamber exercising such wide powers and that the Bill was introducing republican principles. Reports were quoted indicating that Ibid., 1850/1137. Report of the Committee of Trade and Plantations, 30 January 1850. The Elgin-Grey Papers 1846-52 (Ed. A. G. Doughty), Vol. II, p. 592. Grey to Elgin, 18 February 1850. « G.B.P.D., 1850, CIX, col. 1317. Molesworth. 15 16

8

BRITISH COLONIAL POLICY AND THE

all was far from well with the existing unicameral system and emphasis was given to the claim of Robert Lowe18 that no confidence could be placed in the Legislative Council so long as a single Crown nominee sat in it.19 When the Government claimed that there were not enough men of the right type to be found in Australia for an upper house, it was promptly asked how the Colonial Office proposed to establish second chambers in the Cape and New Zealand. The contention that the unicameral system was likely to develop easily into a twochamber structure was also attacked and it was suggested— echoing James Stephen—that such a change was unlikely except under distressing circumstances.20 In this debate, in which Earl Grey's policies were impugned from all sides of the House, Sir John Pakington, his successor, took almost no part but he was an observer of the difficulties likely to beset a Secretary of State for the Colonies who once departed from the safety of precedent. To eschew the nominated upper house, however unsuccessful it might be in practice, was to open Pandora's box. Problems ranging from the advantages and disadvantages of bicameralism or unicameralism to the relative merits of wholly elected, partly elected, and nominated chambers, were paraded in endless profusion. It is not surprising that by 1852 Earl Grey declared: The close attention it was my duty to give to the working of various Colonial constitutions, while I held the office of Secretary of State, led me to alter a good deal the opinion I at first held, in common with most other persons, that a Legislature divided into two branches is in itself greatly to be preferred in all cases to one composed of a single Chamber. I now consider it to be very doubtful, at least, whether the single Legislature ought not under many circumstances to be preferred. If an Upper Chamber could be constituted in such a manner, as to have substantial weight and authority, and to be thus capable of exercising a salutary check upon the representative Assembly, while, at the same time, effectual provision were made against the machine of government being brought to a stand by differences between these two bodies, the advantage of such a constitution of the Legislature could not well be contested. But to accomplish this, 18

Robert Lowe spent the years 1842-50 in Australia and subsequently wielded great influence as a leader writer for the Times. « G.B.P.D., 1850, CVHI, col. 1007. Anstey. 20 Ibid., 1850, CIX, col. 1313. Molesworth. 21 Earl Grey, The Colonial Policy of Lord John Russell's Administration, Vol. II, pp. 97-8.

BICAMERAL PRINCIPLE 1846-52

9

is a problem not yet solved by any Colonial constitution of which I am aware.21 In the same year, New Zealand was endowed with a nominated upper house.

2 Why a Nominated Upper House?

The question whether the central organ of government in New Zealand should ultimately consist of one house or two had first been raised by W. E. Gladstone in 1846.1 Earl Grey appeared to have summarily settled the matter in the same year2 and his view was amply confirmed by Sir George Grey in 1848 when he wrote that the reasons which induced him to recommend two chambers were so obvious that there was no need to restate them.3 The conclusions of the Committee of Trade and Plantations considering the Cape constitution caused Earl Grey to consult with his New Zealand governor about the type of elective upper house best suited to the conditions of the colony. The Committee had proposed a directly elected upper house for the Cape, but Grey harked back to his earlier idea for New South Wales, suggesting that New Zealand should have an indirectly elected chamber based upon the provincial legislatures, each of which was to return three members.4 The system, although similar to that of the United States, was not strictly federal and Earl Grey envisaged that the provincial governments would play an essentially local role once the colony had developed. After toying with the idea of an upper house directly elected on a higher franchise,5 Governor Grey enthusiastically espoused G.B.P.P., 1846/337. W. E. Gladstone to Lieut-Governor Grey, 31 January 1846. Ibid., 1847/763. Earl Grey to Governor Grey, 23 December 1846. Ibid., 1850/1136. Governor Grey to Earl Grey, 29 November 1848. See also C.O. 209/81, Governor Grey to Earl Grey, 20 September 1850, minute by Earl Grey dated 27/1/51. * C.O. 209/81. Governor Grey to Earl Grey, 20 September 1850. Minute by Earl Grey dated 27/1/51. 5 C.O. 209/82. Sir George Grey to Earl Grey, 24 October 1850. 1 2 3

WHY A NOMINATED UPPER HOUSE?

11

this principle of indirect election, but for different reasons. In his eyes such a chamber would play an important co-ordinating role, emphasizing the importance of the Provincial Councils rather than the Central Government. Before further legislative action could be undertaken, however, the government of Lord John Russell was defeated on the militia question in February 1852, and Earl Grey was replaced as Secretary for War and the Colonies by Sir John Pakington. It would have been surprising if such a change of government had not led to changes in policy, but what proved unexpected was the form that these changes took.6 Ironically, Earl Grey's desire to find a second chamber for New Zealand acceptable to the colonists, and the delay caused by this, led directly to the establishment of the discarded, unpopular, nominated form of upper house in the colony. Pakington's decision to establish a nominated upper house ran counter to the course indicated by all the accumulating evidence of the previous six years. Earl Grey, it must be remembered, had not been against the nominee system in principle. He had been prepared to invoke it for the Provincial Councils in New Zealand and in New South Wales where he thought the colonists might find it acceptable in a unicameral setting; he merely refused to use it in circumstances which he thought would lead to dissension either amongst the colonists or between the colonists and the mothercountry. All the indications were that a nominated upper house would not be acceptable in New Zealand. Why then did Pakington resurrect the proposal? It seems unlikely that conservatism alone was the cause, for much of Pakington's Constitution Bill, based on Earl Grey's draft, was remarkably liberal. There is no doubt that Pakington, like Earl Grey himself, preferred the nominated system. Grey had decided against it because of the practical difficulties involved. Pakington on the other hand placed greater weight on more immediate problems, for if the breakdown of traditional constitutional uniformity and the willingness of Earl Grey to experiment had opened up new avenues of constitution-making, it had also raised new problems. By leaving the local government of the Cape to settle the franchise subject to Imperial consent, Earl Grey had unwittingly encouraged a protracted battle in which large property interests, race-prejudice and regionalism all combined into an explosive 8

It would be interesting to know how far the changes, and which changes, were due to Pakington's own initiative, and how far to that of Merivale. Cf. A. C. V. Melbourne, op. cit., pp. 398-9.

12

WHY A NOMINATED UPPER HOUSE?

mixture in a situation already dangerous because of the anticonvict agitation. The administration of the colony was obstructed and the Imperial government was placed in a most difficult position. It is perhaps unfortunate that this first attempt to establish an allelective upper house should have been so complicated, but there can be no doubt that the difficulties involved made a marked impression on Pakington. He referred to them in the debate on the New Zealand Constitution Bill7 and, although the upper chamber proposed for New Zealand was to have been indirectly elected, his argument that there was no precedent for such a form in the Empire applied to all forms of elected upper houses. It would have been difficult for him to alter the proposals for the Cape at this stage, because they represented the specific recommendations of the Committee of Trade and Plantations, but in the case of New Zealand there was no such obstacle. As a member of the House of Commons, Pakington, unlike Grey, had been a first-hand witness of the fierce controversies which had been associated with these constitutional changes and his first inclination on coming to office had been to postpone the New Zealand bill for a further year.8 But legislation of some kind was necessary, for the Act of 1848, which had suspended the 1846 Constitution for five years, was due to expire. Pakington, under strong pressure from the Colonial Reform group and the colonists' representatives in London, had to choose one of three possibilities. He could have attempted to extend the suspension of the 1846 Constitution for yet another year by supplementary legislation, a move which would have been very unpopular in New Zealand. E. Gibbon Wakefield even claimed sufficient support at Westminster to have high hopes of defeating any such proposal.9 If no action were taken the unsatisfactory constitution of 1846 could have been left to come into effect, an unthinkable solution, or lastly, a revised version of Grey's draft could be introduced. In choosing the last possibility, Pakington was obviously influenced by the restricted time available and the uncertain state of the parliamentary session.10 He was a member of a new, weak government which had come into office at the end of a parliamentary term and any repetition of the protracted debates which had characterized the Australian Colonies Government Bill of 1850 clearly had to be avoided. i8 G.B.P.D., 1852, CXXI, col. 979. Pakington. Ibid., col. 103. Pakington. » Otago Witness, 13 November 1852. Letter from E. G. Wakefield to J. R. Godley dated 7 June 1852. w G.B.P.D., 1852, CXXI, col. 975. Pakington.

WHY A NOMINATED UPPER HOUSE?

13

The parliamentary situation thus placed a premium on the simplest and most rapid solution and this happened to coincide with Pakington's own preference. If one ignored the fact that nominated upper houses did not in practice reproduce the House of Lords but had proved consistent failures, then the case that Pakington marshalled in favour of the system was plausible. He argued that New Zealand differed from other colonies because of geographical peculiarity, the dispersed nature of the settlements and the very high order of the natural qualities of the natives.11 He believed that the European settlers were entitled to enjoy institutions assimilated as closely as possible to those of the mother country, and he believed that they would obtain the closest analogy to the House of Lords if the Crown had the power of appointing members to the upper chamber.12 The only difference would be that membership would not be hereditary. He disapproved of federal-type solutions, favouring one colony rather than 'small independent parts', and, having argued that it was desirable to make the colonies a reflection of the mother country, he asserted that nominated chambers worked well in the British Empire, that the honour of a seat in them was coveted by men of character and station, and that the colonists had no desire to change the system.13 It has been suggested that Pakington, with American experience, may have been 'afraid that an elected Upper House would become the paramount body in the partnership, in much the same way that the Senate in the United States dominated the House of Representatives'.1* But this misses the main significance of the United States to conservatives of that age—its republicanism. Pakington made his own position clear when he stated: 'He preferred the institutions of his own country; and the Honourable Member had not, in his opinion, brought forward any argument for an elected Upper Chamber, which would not be equally good for an elective representative of the Crown.'16 In this sense the argument against the nominated upper house had proved too successful. The element of republicanism represented what Earl Grey himself had been concerned about, the thin end of the wedge which might cause the Empire to break apart. Ibid., col. 107-9. Pakington. Ibid., col. 979. Pakington. Ibid. Pakington. A. H. McLintock, Crown Colony Government, p. 335. « G.B.P.D., 1852, CXXII, col. 49. Pakington.

11 12 13 14

14

WHY A NOMINATED UPPER HOUSE?

Thus, Pakington held fast even in the face of an assertion by Gladstone that the nominative principle was 'another of those vulgar superstitions which it is necessary to protest against from year to year . . . '16 He pointed out that he had introduced into his bill large powers by which New Zealanders would be able to remould their institutions in the light of experience,17 although he clearly hoped that this would not be necessary. Great play was made with the 'practical' problems of elected upper houses whilst the disadvantages of the nominated system were dismissed as theoretical.18 Pakington's position is more complex than is usually assumed. Apart from his personal predilections, the need for speed and the obvious difficulties of departing from precedent all meant that a nominated upper house was the simplest way out of an awkward dilemma. It was preferable in terms of parliamentary tactics and the New Zeaknd colonists could be relied upon to accept it rather than risk further delay. In the same year he urged a similar solution for New South Wales as 'the most simple and expeditious mode of completing the whole transaction . . . '19 and there seems little doubt that the decision of South Australia to have a nominated instead of an elected upper house owed much to Pakington's influence.20 By contrast, his successor, Newcastle, quickly restored freedom of choice because Sir John Pakington had been 'much too forward' in condemning elective forms. Pakington might write the prescription, but could Parliament be persuaded to take the dose? Direct support for the nominated house was limited. Some members, such as Lord John Manners, continued to see in it the germ of 'a New Zealand House of Lords'.21 Others, supporting the Wakefield thesis, believed that if the best class of emigrants were to be encouraged to go to the different colonial dependencies, members of the House could not do better than secure to those colonies all the laws, habits and usages to which they had been accustomed in England.22 In effect, the same safeguards for property should be introduced into the colonies as existed in England. i« Ibid., 1852, CXXI, col. 970. Gladstone, i? ibid., col. 976. Pakington. " Ibid., 1852, CXXII, col. 49. Pakington. cf. CO 209/130 Gore Browne to Lord John Russell, 25 September 1855. Minute by Merivale 5.2.56. 19 A. C. V. Melbourne, op. cit., p. 399. 20 C.O. 881/1, No. 14. Memoranda relating to the Australian Constitution Act. Memorandum by Sir George Grey, 4 January 1855. « G.B.P.D., 1852, CXXII, col. 56. Manners. " Ibid., col. 54. Walpole.

WHY A NOMINATED UPPER HOUSE?

15

Although only a few speakers openly supported Pakington's plan many members were prepared to approve it rather than jeopardize an otherwise liberal bill. Lord John Russell emphasized that nominated Legislative Councils were not working effectively in the colonies but added that he found it difficult to oppose a Colonial Secretary who was trying to assimilate colonial institutions to those of the mother country. Moreover: If it were found that there were parts of such institutions which worked with dissatisfaction in the Colonies, there could be no interest either in the Minister of the Crown or in Parliament to oppose the just wishes of the Colonies in that respect.23 Others prepared to accord a meed of cautious approval agreed on the necessity of attracting the upper classes to the colonies but questioned the value of the nominated house for this purpose.24 One member thought that nominations for life might be a saving clause guaranteeing sufficient independence. Amongst those who openly opposed nomination, there were critics both of nomineeism per se and of attempts to create a colonial House of Lords. Sir William Molesworth attacked the principle because he believed it to be bad generally and likely to work particularly badly in New Zealand: The most influential and respectable persons in New Zealand would probably refuse to be nominated to the Upper Chamber, for if they wished to possess political power and influence, they would prefer a seat in the Lower Chamber; and all experience in the Australian Colonies proved that the most influential persons lost their influence immediately on becoming nominees.25 It was also widely agreed that the nominated form failed to provide the degree of independence claimed for it. This was partly because of the difficulty of finding suitable people with the necessary time and resources. Mr Gladstone pointed out that It is not difficult to bring a House of Peers up to London, but it is exceedingly difficult to bring members of a Legislative Council to Toronto, still more difficult perhaps to bring them to Halifax, and certainly much more still to Wellington. You have not the inequality of fortune in the colonies that you have here; you have no class of men possessing leisure and wealth, who it may almost be said are born to political pursuits: who can afford to 23 Ibid., CXXI, col. 133. Russell. 2* Ibid., CXXII, col. 54. Molesworth. 25 Ibid., CXXI, col. 928. Molesworth.

16

WHY A NOMINATED UPPER HOUSE?

leave their places of residence, and come to considerable distances to attend to public affairs . . . 26 Then, as Frederick Peel—a past and future Under-Secretary for the Colonies—pointed out, there was the danger that if the necessary degree of independence of Crown and people were attained, the upper house might become little more than a 'close oligarchy' representing no one but itself. To find roots for a responsible second chamber in the social system as it existed was virtually impossible. Such an institution would merely encourage sycophants, and without public respect and support could hardly hope to succeed. Even worse might follow, as the example of Canada showed, for with the Governor acting on the advice of his responsible ministers, appointments would be made predominantly for party purposes.27 Pakington's arguments were thus squarely met. If it was generally agreed that colonial institutions should reflect those of the mother country, it was pointed out that there might be important differences between forms and principles. Pakington's assertion that nominated chambers worked well in the colonies and that there was no desire to change them was shown to be inaccurate. In the previous three years Jamaica, New Brunswick, and Newfoundland had pressed for elective upper houses, and similarly the fallacy of the 'coveted honour' was exposed. Even so, when the House divided on the question of the nominated second chamber, the clause was carried and the safety of the bill as a whole was not prejudiced. In the Lords, Earl Grey and the Duke of Newcastle shared the attack in a thinly attended second reading debate. Grey, with olympian detachment, surveyed the development of bicameralism in the colonies, emphasizing that it was not until 1791 that Pitt had tried to transform a body designed to assist the Governor into an imitation of the House of Lords. The scheme had failed because 'the House of Lords was an institution altogether peculiar to this country, that Parliament could no more create than it could create a full-grown oak . . . '28 Grey believed that the Legislative Councils needed to acquire a degree of weight and authority and a command of public opinion which had previously eluded them. The nominated chamber had proved manifestly unsuccessful, « Ibid., CXXI, col. 969. Gladstone. « Ibid., CXXH, cols. 50-52. Peel. » Ibid., CXXII, col. 1169. Grey. 2

WHY A NOMINATED UPPER HOUSE?

17

merely withdrawing men who were useful in the assembly to create an obstructive oligarchy in the upper house. The Duke of Newcastle claimed that a nominated house was merely 'pursuing the shadow instead of the substance of a conservative principle', and that attempts to make comparisons with the House of Lords itself were ridiculous: 'Talk of a House of Lords being made in the Colonies out of the nominee elements of the Crown!—why it was really laughable to maintain for one instant that there would be any similarity between such a body and the House of Lords in the mother country.'28 This tune, although the arguments in the debate had again been overwhelmingly against Pakington's upper chamber, Newcastle did not bother to divide the House on his motion to omit the offending clause because so few members were present. The form rather than the substance of conservatism triumphed. Outside Parliament, nomineeism had been under heavy attack well before the advent of Pakington as Secretary of State for the Colonies. One of the foremost critics, Robert Lowe, delivered trenchant attacks on the principle in 1850,30 and it is not surprising that a Times editorial in 1852 (probably written by Lowe) emphasized that Such a House would not have the slightest resemblance to the House of Peers, it would not correspond with any existing element in colonial society, it would not remove the nightmare of Crown influence and could not command confidence or respect . . . Why, therefore, create an institution the certain destiny of which is to be thwarted or despised?31 Nevertheless, in a series of editorials devoted to the New Zealand Constitution, the Times proved less concerned with the nominated upper house than with the complication of government which the constitution appeared to introduce. In New Zealand, and in the colonies generally, preference for a second chamber, although often an inherited characteristic, was less firmly rooted than in Britain. It required greater justification. Colonists were concerned about the character of the chamber they were about to acquire, and prejudice in favour of a second chamber was more easily outweighed by prejudice against nomineeism which had proved particularly important under Governor Sir " Ibid., cols. 1145-51. Newcastle. 30 e.g. Speech at a meeting of the Society for the Reform of Colonial Government, 1 June 1850. 11 The Times, 10 June 1852.

18

WHY A NOMINATED UPPER HOUSE?

George Grey. A series of five resolutions passed by the Otago Settlers in 1850 favoured a general legislature of two houses and unicameral provincial legislatures.32 A similar memorial from Nelson also favoured two houses, but stipulated that both should be elective with no more than four nominated ex-officio seats, one at least in each house. At a preliminary meeting doubts had been expressed about the usefulness of a second chamber in New Zealand conditions and one speaker had even spoken warmly of the advantages of a single chamber as in France,33 but in a letter supporting the petition it was suggested that the smaller size of the legislature made a second chamber more, not less, desirable. Doubts about the possibility of finding sufficient qualified personnel were met by the flat assertion, no doubt based upon the parable of the loaves and the fishes, that where materials existed for one house, they were equally present for two.34 Faith in the principle of bicameralism, however, was rarely unconditional and the Nelson memorialists asserted that One Chamber only of elected members would be infinitely preferred to two where one of these two was composed of Nominees; so strong and general a feeling exists against the power of legislation being conferred on any persons save those elected by the inhabitants of the colony . . . 3 6 This is the heart of the problem. Nominees were looked upon by the British government as the 'shield and buckler' of the Governor, safeguarding the imperial connection. To the colonists, they represented a standing insult to their integrity and probity. But once a nominated upper house was rejected, it was inevitable that the existence of two elected houses should be questioned. A countermemorial from Nelson in January 1851 expressed this most clearly: 'We cannot admit, in short, that there is any charm in the mere dividuality of two Houses composed of the same elements.'36 There were not the same vested interests, not the same scale or importance of property-holding to protect in the colony as might justify an imitation of the House of Lords. It was simpler to have 32

C.O. 209/89, Governor Grey to Earl Grey, 9 January 1851. Encl. No. 2. Resolutions passed at a Meeting of Inhabitants of Otago District, 3 December 1850. 33 Nelson Examiner, 21 December 1850. 34 C.O. 209/89, Governor Grey to Earl Grey, 29 January 1851. Encl. No. 2. Memorial of Nelson Settlers signed by E. W. Stafford and six others dated 31 December 1850. as Ibid. 36 Ibid., Governor Grey to Earl Grey, 5 February 1851. Encl. No. 2. Memorial from inhabitants of Nelson dated 2 January 1851.

WHY A NOMINATED

UPPER HOUSE?

19

one house elected under a high franchise qualification than a separate upper house. Some individual letter writers adopted a similar approach,37 although the bulk of the submissions favoured an elective upper chamber. Newspapers, too, were almost uniformly hostile to the idea of a nominated chamber. Prior to the passing of the bill the Southern Cross had quoted the Sydney Empire in its hope that the British Parliament would disallow for ever an assembly of Noodles and Nominees . . . The great evil of this sort of charlatanism is not the amount of enjoyable prerogative which it directly withholds, but the soporific poison it pours into the circulation of the social system . . . We are insulted when we are told that we cannot govern ourselves: but this insult is a trifle compared with the fact that by not governing ourselves we become so constitutionally inert as to lose the very faculty and possibility of self-government . . . 38 The Wellington Independent considered the projected Council as worse than a Tooley-street oligarchy, aping a House of Lords in New Zealand! The thing is absurd—so childishly, savagely, brutally absurd, — that one does not know whether to laugh or to cry, at the incredible folly and ignorance of those who projected i t . . . 3 9 Favourably inclined to the constitution as a whole, the Lyttelton Times nevertheless saw the nominated house as 'a miserable mockery of the House of Lords' and thought that the worse parts of the constitution were those most likely to fall into abeyance.40 The Otago Witness expressed satisfaction that the colony had managed to obtain any constitution before the dissolution of the Imperial Parliament, claiming that, if it was not perfect, it was at least workable.*1 Many leading figures in the country opposed the system. Godley believed that, having no real stamina or foundation, the chamber would not be an active nuisance but would quickly fall into 'impotence and contempt'.42 Crown nomineeism had already proved an utter failure as a substitute for the prestige of an aristocracy.48 37 38 39 40 41 42 43

e.g. C.O. 881/1, No. 4. F. C. Dalgety and J. A. Jackson. Southern Cross, 18 February 1853, quoting Sydney Empire, 28 January 1853. See also Southern Cross, 8 February 1850. Wellington Independent, 27 October 1852. Lyttelton Times, 4 September 1852. Otago Witness, 13 and 27 November 1852. Writings and Speeches of John Robert Godley, p. 162. Lyttelton Times, 10 June 1854. Letter signed 'A Canterbury Colonist". Relations between the General and Provincial Governments Considered, by J. R. Godley, p. 4.

20

WHY A NOMINATED UPPER HOUSE?

Fox thought it 'one of the most obnoxious vestiges of political serfdom'*4 and Sir George Grey, who bore so large a responsibility for the odium associated with nomineeism in New Zealand, was to declare that Pakington's upper house 'had destroyed the glorious fabric I had been privileged to frame'.45 Even several of the first appointees to the chamber shared this antipathy to nomineeism.46 Yet such was the general relief at receiving a constitution at last, that after these initial objections the new chamber was largely ignored. The objections, which proved insufficiently strong to bring about any immediate change in the composition of the new Legislative Council, were, however, strong enough to undermine any influence that it might hope to have. Pakington's decision to establish a nominated upper house in New Zealand had, therefore, only an unreal relationship with any theory of government. Few, whether in the United Kingdom or in New Zealand, really expected the institution to succeed, and even Pakington had doubts. Pakington had not only deprived this Legislative Council of its projected task of representing provincial interests, but he had also yoked it to the unpopular principle of nomineeism, thereby leaving it no clearly defined role and lacking close ties to any particular groups in the community. From the outset, therefore, it appeared to be little more than an excrescence upon the legislative machinery. The real reason for its unpopular form is to be found in the situation in the early 1850s rather than in any fundamental political beliefs. For all its failings, the nominated system provided the simplest and quickest solution to an urgent problem. Given that something was needed to buttress the position of the Crown, the nominated system with all its faults was the traditional form, and although an elective system might prove more successful it could equally prove more fallible still. The establishment of the nominated upper house in New Zealand, therefore, was grounded more upon hope than upon optimism. 44 45 46

Fox in a speech to the Wellington Constitutional Association, 29 June 1852, quoted by McLintock, op. cit., p. 354. J. Collier, Sir George Grey, p. 82. See Chapter 13, p. 155.

3 The Difficulties

of Establishing

a Colonial House of Lords

Since it was invested, formally at least, with equal legislative powers with the lower house, it was hoped that the new upper chamber might become a body of real legislative influence, composed of wealthy, educated men of high social prestige who might come to form a political elite. The general practice in setting up such a chamber was for the Governor to select a list of candidates which was then submitted for approval to the Sovereign. Although royal approval was largely a formality a Governor's choice might be limited in a number of ways. Stipulations regarding age and wealth and the number of members were contained in some constitutions. The proportion of officials allowed was also normally limited and there might be requirements concerning the representation of various areas or minority groups. Beyond this the Governor was empowered to exercise a free choice. In some colonies this would be a personal choice unless he was to choose with the advice of his Executive Council. The New Zealand constitution differed from the usual pattern in a number of ways. Many of the more sophisticated devices which were to become standard practice elsewhere were lacking. Haste and a change of government when the constitution was drawn up were clearly not without their effects. Age restrictions were limited to the simple requirement that appointees should be over twenty-one. No property qualification was required. A minimum membership was stipulated in the constitution and the maximum was contained in the Instructions to the Governor.1 Unlike the unicameral New South Wales constitution established three 1

The formal upper limit in the constitution was dropped at the suggestion of Lord John Russell during the debate on the bill in the House of Commons, but was later reintroduced into the Royal Instructions.

22

THE DIFFICULTIES

OF

ESTABLISHING

years later, the New Zealand one had no requirement that the Governor was to act with the advice of his Executive Council when nominating members to the upper house, yet if this practice had been employed in New Zealand, it might have helped to reduce the serious misunderstandings which occurred in 1891-2. The requirements that members were to be over twenty-one years of age and natural born, or naturalized, subjects of the Queen were the same in both constitutions, but in New South Wales there was the additional stipulation that not less than four-fifths of the appointees were to be persons holding no official appointment under the Crown (Sec. 2). There was no parallel in the New Zealand Constitution to the New South Wales provision that appointments to the first Legislative Council were to be for five years only, subsequent appointments being for life; nor did New Zealand have, as New South Wales did, a special section granting the power to alter any of the provisions concerning the Legislative Council to provide for the nomination or election of an upper house as it might think fit. New Zealand experience also differed from established practice in less formal ways. Not only was the selection of personnel peculiarly difficult because the simultaneous establishment of a series of provincial governments introduced a number of competing centres of power and authority, but Sir George Grey's exercise of his power led to still further complications. By one of those strange quirks which seem to have dogged the establishment of the New Zealand Constitution, in his efforts to bring the constitution into effect without further delay the Secretary of State for the Colonies had entrusted unprecedented executive powers to the one man apparently uninterested in reaching a rapid conclusion—Sir George Grey. The Constitution Act was received in New Zealand on 22 December 1852. Prior to that, as early as 16 July 1852, Sir John Pakington had written to Sir George Grey informing him of the nature and size of the projected Council, adding, 'And it is desirable that without waiting for those instructions, you should at once proceed to make your selection and report it immediately to Her Majesty's Government.'2 The Provincial Councils met for the first time between 16 September and 30 December 1853. Sir George Grey left the country on 31 December 1853, but the General Assembly did not meet until 24 May 1854. The difficulties leading to this delay were later alleged by 2

G.B.P.P., 1854/1779. Sir John S. Pakington to Governor Grey, 16 July 1852.

A COLONIAL HOUSE OF LORDS

23

Sir George Grey to centre about the problem of setting up the Legislative Council.3 The main causes were reputed to be the difficulty of finding suitable personnel, the inevitable problems of overlap which were bound to occur until the composition of the lower house had been settled, and the fact that the Council could not be called until the names of the nominees had been submitted to the Colonial Office and approval received.4 Of these excuses, the third was incorrect and the other two, if admissible, were probably less formidable than was suggested.5 Indeed, there was a general belief at the time that the principal obstacle was an obstructive Governor who wished to be out of the country before these institutions became effective, and that setting up the Council de novo provided an ideal excuse.6 'Can it be believed,' asked one journal, 'that there is any foundation for the assertion that he cannot find members for the Legislative Council? Has he tried to find them, and from whom has he had refusals to fill a seat in that chamber?'7 Unrestricted by the need to accept advice from an Executive Council, Grey had, in effect, been authorized to appoint for life a complete upper house of ten to fifteen members without prior approval by the Colonial Office. Such was the price to be paid for rapid action. But Sir George, sourly disapproving of the changes made in 'his' constitution by Pakington, proved reluctant to proceed with any appointments until the formal instructions arrived and even then gave no impression of acting in a spirit of urgency. When the appointments were eventually made and gazetted on 4 January 1854 he displayed an almost contemptuous disdain for the menial procedure of reporting them home. LieutenantColonel Wynyard in June 1854, noticing that there was no despatch in the letter-book covering the Governor's selection, forwarded a list which was received at the Colonial Office 14 October 1854.8 Meanwhile, Sir George Grey had written to Under Secretary Frederick Peel from an English hotel in September 1854,9 informing the Secretary of State of his list of appointees, nine months 3 4 5

6 7 8 9

C.O. 2091122, Sir George Grey to Duke of Newcastle, 18 May 1854. New Zealander, 21 January 1854. D. G. Herrón, The structure and course of New Zealand politics, 1853-58. Unpublished Ph.D. thesis, University of Otago, 1959, p. 535. cf. Gisborne, New Zealand Rulers and Statesmen, p. 76. Nelson Examiner, 21 May 1853; Stafford Papers, Featherston to Stafford, 24 April 1853. Nelson Examiner, 21 May 1853. C.O. 209/123, Lieutenant-Colonel Wynyard to Duke of Newcastle, 3 June 1854. C.O. 209/124, Sir George Grey to Frederick Peel, 9 September 1854.

24

THE DIFFICULTIES OF

ESTABLISHING

after they had been gazetted in New Zealand! The list was already out of date. Grey claimed, not very convincingly, that answers from several gentlemen had not been received until he was on the point of quitting the colony and were not gazetted until after he had sailed. The announcement had been dated on the same day as his departure,10 but since the list, as gazetted, included two men who declined appointment anyway, it is difficult to determine where Sir George's problem lay. A Colonial Office minute records: From a conversation which I have had with Governor Grey on the subject, I forward this letter to you direct. It has been delayed by the absence of the papers requisite to fill up the names (now inserted) in the margin. They are taken from a printed notice . . . [Document torn] from11the Colonial Secretary's Office, an extract of which is annexed. As a result of these untoward complications, the legality of the first meetings of the Legislative Council must be considered suspect. It has been estimated12 that one man in every fifty at this time was either a Legislative Councillor, a member of the House of Representatives or a Provincial Councillor. Legislative honours were not difficult to attain and most aspiring candidates had ?. number of fields from which to choose. Nominated upper houses are often expected to consist of the older members of a community, elder statesmen who no longer relish the free-for-all of elections or the boisterous atmosphere of the representative house, but a pioneering community has a young age structure and such candidates are few. In the case of New Zealand, the problems of travel, the necessarily protracted periods away from home, the decision in 1854 not to award Legislative Councillors an honorarium, and the unpopularity of the institution because of its nominee character, all meant that this was hardly likely to be a jealously coveted prize. Yet, as there was no fund of tradition to draw upon, the future prestige and influence of the Chamber depended heavily upon that of the individual councillors selected. In New South Wales, where the problem was even more pronounced, a conscious effort was made to invest the upper house with a representative role different from that of the lower. It was agreed between the Governor and his Executive Council that the Legislative Council of that colony should contain representatives of all parties, classes and interests. 10 11 12

New Zealand Government Gazette, 3 January 1854. C.O. 209/124, Sir George Grey to Frederick Peel, 9 September 1854. Minute dated 23 September 1854. Cyclopedia of New Zealand, Vol. 2, p. 91.

A COLONIAL HOUSE OF LORDS

25

Seats were offered to the Bishop and to the official heads of all denominations. When these were declined, care was taken to give representation to each religious body and the judges were also offered seats, which were accepted.13 By contrast, the appointees selected by Sir George Grey may be classified into three broad groups not necessarily mutually exclusive: a 'prestige' group, a small group with previous political experience in the colony, and a group of 'officials'. One obvious source of recruitment was from the class of large sheepowners. Although the society of the time was fairly open, many of the large estates belonged to settlers who were wealthy before emigrating: a group whose social mores included a tradition of public service. To these had to be added some of the twelve representatives elected to the Legislative Council of New Ulster—which had never met—and a sprinkling of officials to ensure continuity in the administration. The final appointees, of course, also had to be representative of different areas of the country. A model 'prestige' appointee would be young, ex-army, wellconnected and a landowner, such as Captain E. H. W. Bellairs. Bellairs, who first arrived in the colony on the same ship that brought the constitution in December 1852,14 had had little experience either of New Zealand, or of politics, although he claimed that he would have stood for the lower house if sufficient length of residence had given him a legal qualification. Gibbon Wakefield had originally hoped that Captain Bellairs would be the spearhead of an aristocratic settlement in Canterbury. It had been planned that his father would emigrate to New Zealand with the whole family and property amounting to about £70,000 in value. His father was then to receive a baronetcy. The plain failed, not least because Sir William Bellairs wanted the baronetcy before emigrating.15 Captain Bellairs, aged thirty at the time of his appointment, remained in the country for only four years. Sewell, never the gentlest of critics, called him a coxcomb 'who talked prodigious nonsense about the tide of democracy, and so forth'.16 He described him as a Greyite and cheap land man who would have no influence in Otago, and retailed with evident glee Bellairs's innocent enquiry when the government brig reached Lyttelton as to C.O. 201/494. Sir Wm. Denison to H. Labouchere, 22 August 1856. Obituary E. H. W. Bellairs. Hocken Library Pamphlet Collection, F & J Vol. 10, p. 107. « E. G. Wakefield to J. R. Godley, 22 June 1850 in Founders of Canterbury, Vol. 1, pp. 225-8; and p. 278. (Edited by E. J. Wakefield.) « Sewell Journal, Vol. 1, Ft. II, 18 May 1854.

13 14

26

THE DIFFICULTIES OF

ESTABLISHING

whether his Patent had come down. His companions, we are told, considered providing a gingerbread coronet.17 Captain Bellairs had as companion Major J. Y. Lloyd, also a landowner and, at fifty-eight years old, the second oldest member of the Chamber. Lloyd left for England in the following year and, although reappointed upon his return, served for less than three years, taking no great part in the debates of the Council. The appointment of Dr Ralph Richardson belies Sir George Grey's prevarications in summoning the Assembly, for he was nominated to the Council in July 1853 at a time when he was also an unsuccessful candidate in the Provincial election.18 The only direct link with more elevated English society was provided by the Honourable William Petre, second son of the eleventh Baron Petre. Petre had been involved in a controversy over his appointment by Sir George Grey to the sinecure of Postmaster-General, and the General Assembly subsequently refused to vote funds for his salary.19 His appointment to a seat in the Legislative Council whilst a storm was already brewing, therefore, whilst it may have invested that body with an aura of nobility once removed, was hardly calculated to enhance its prestige in the eyes of the colony at large. Moreover, Petre never took his seat and soon left the country after even the settlement named for him had changed its name.20 For a country dubbed the 'Britain of the South Seas' this aristocratic element was surprisingly limited. The second son of a Roman Catholic baron and the scions of a few county families who would not have caused much stir at a local Hunt Ball seem deplorably inadequate as the basis of a putative colonial House of Lords. A second group of appointees constituted a link with the earlier form of government. Seymour, a nominee of the Legislative Council of New Munster since 1849, was unpopular as principal agent of absentee landlords, but contributed useful experience on constitutional and procedural matters during the early meetings of the Council. Salmon and Frederick Whitaker may be said to have represented the members elected to the Provincial Council of New Ulster. Salmon, the only merchant appointed, differed from his colleagues in education and social background, having been apprenticed at sea when fourteen years old, whilst Whitaker, des" Ibid., 9 April 1854. Nelson Examiner, 30 July 1853. N.Z.P.D., 1854, pp. 398-400. Shrimpton and Mulgan, A History of New Zealand, p. 119.

18 19 20

A COLONIAL HOUSE OF LORDS

27

cribed as 'the rudder more than the figure-head of the State vessel',21 was to be for many years indispensable as an alternative AttorneyGeneral. He remained an appreciable influence in New Zealand politics until his death in 1891. Like Seymour, Whitaker was also connected with land speculation.22 The remaining four appointees were all officials. The most important and, significantly, the first appointed, was William Swainson. He too had had extensive government experience since his appointment as Attorney-General for New Zealand by Lord John Russell in 1841. Saunders asserted that he carried far more real power to the nominated Council than was allotted to the House of Representatives.23 Yet this also could hardly be a popular appointment, for he had been too closely associated in the public mind with the policies of the late Governor who had appointed him. One contemporary journalist described him as: A very chameleon, and takes his colour from the nearest Governor. From Grey he took a very strong colour, and a very bad one: but as Wynyard has no colour at all, Mr AttorneyGeneral, for the future, may be able to appear in his own; not white indeed, yet not entirely black; a kind of decent drab.24 Designated Speaker of the Council by Wynyard in the belief that he would also conduct government business as Attorney-General, he chose to stand aside from the responsible government advocates although acting as co-adviser to the Governor. Taking no part in debates because of the provisions of Standing Orders,25 such power as he exercised owed little to his position in the Council and his main influence continued to be more that of a nominated official. The remaining officials included Henry St Hill, an early settler who appeared in the multiple role of Resident Magistrate, Sheriff, Native Trustee or Guardian of Native Reserves, Manager of the Government Bank, and one of the managers of the rival establishment;26 Mathew Richmond, ex-Chief Police Magistrate and ex-Superintendent of the Southern Division of the country; and William Henry Kenny, Quartermaster General of the New Zealand forces and a leader of the Pensioner Settlements. This first group of appointees to the new Legislative Council was, no W. Gisborne, New Zealand Rulers and Statesmen 1840-97, p. 71. 22 J. Rutherford, Sir George Grey, K.C.B., 1812-98, p. 633. 23 A. Saunders, History of New Zealand, Vol. 1, p. 304. 24 Lyttelton Times, 25 February 1854. Auckland correspondent. 25 N.Z.P.D., 1854, p. 84. The Speaker: p. 165. Bell. 26 McLintock, Crown Colony Government, p. 230. 21

28

THE DIFFICULTIES

OF

ESTABLISHING

doubt, a moderately capable assortment, but lacking in any outstanding qualities. Sewell wrote of them: It is no fault of theirs that they are what they are . . . Sir George [Grey] is the great delinquent . . . He might have called together a creditable Upper House, which would have had weight enough in the country at least to have done service for a single Session . . . and to assist in the necessary work of suicide. Instead of that he put into the House about a dozen men for the most part wholly incapable—a kind of old Chelsea pensioners in the shape of retired Majors in the Army and so forth . . . I always uphold the dignity of the abstract upper house, only objecting to its present Constitution, but others speak slightingly about them, and rather jeer and flout them . . . 2 7 Of these eleven initial appointments made by Governor Grey, five may be classed as farmers, five as professional men or officials, and one as a merchant. One was of aristocratic lineage, four might be termed gentry. The average age of the eleven was just under forty-five years. They represented most of the principal areas of the country, with the important exception of Canterbury, although it is clear that early resignations and non-acceptances upset any planned balance. At the outset, over one-third of the membership was drawn from Auckland alone. Three persons were known to have declined appointment: J. C. Watts Russell, a landowner, aged 28, planned to re-visit England in 1854 but was appointed on his return in 1858,28 George Cutfield preferred to concentrate upon provincial politics but was also appointed in 1858; whilst David Monro, doctor, pastoralist, and a later Speaker of the House of Representatives, twice declined appointment in favour of service in the lower house.29 The average age of the Legislative Council was higher than that of the lower house although both represented the essentially young age structure of a pioneering society. Surprisingly, the age range of the upper house (from 30 to 59) was narrower than that of the lower (21 to 74), but a striking feature of both Houses was the number of university trained members (30.56% in the lower house, 27.27% in the upper). The occupational distribution of members « Sewell Journal, Vol. 1, Pt. II, 23 June 1854. 28 Watts Russell was gazetted as a member and G. H. Scholefield's Parliamentary Record records him as having resigned 8.5.54. He was not offered appointment until 28 December 1853, however, and he declined appointment 26.3.54. LA. 54/1242. Bellairs was not offered appointment until 2 January 1854. See LA. 53/3016. 29 Nelson Examiner, 24 September 1853; Stafford Papers, D. Monro to Stafford, 20 October 1857.

TABLE A Name Bellairs St Hill Kenny Lloyd Petre Richardson Richmond, M. Salmon Seymour Swainson Whitaker Hartley Bell Gilfillan Gibbes Tancred

Previous Nominated Office held

J.P. Acting Aud. Gen., Magistrate and Sheriff Q.M. Gen. N.Z. Forces, Resident Magistrate Militia Officer Colonial Treasurer, N. Munster, Postmaster General

Previous Elected Office held —

— —

—

— — —

—

Lands Commissioner, Resident Magistrate — Leg Co. N. Munster Attorney-Gen, of N.Z., N.Z. Leg. Co. County Court Judge, Non-official Member of 1845 Leg. Co. N. Ulster — Leg. Co. of N. Munster Leg. Co. of N.Z. — — —

Elected to P.C. or Nominated to P.C. Executive, 1853-4

Elected Leg. Co. N. Ulster — — Elected Leg. Co. N. Ulster House of Reps. — — — —

No. of years of Service in Leg. Co. 2 years 6 months 2 years 3 months 27 years 1 year 8 months 7 years

— —

3 years 34 years

—

15 years

— —

6 years 6 months 14 years

Auckland P.C.

11 years

Auckland P.C. Wellington P.C.

20 years 1 year 8 months

Auckland P.C. — Canterbury P.C.

11 years 8 years 10 years

30

THE DIFFICULTIES OF ESTABLISHING

was also broadly similar, although there were more lawyers in the lower house and more officials in the upper. The geographical distribution of membership, too, bore a marked similarity. The Governor had great difficulty in securing appointments representative of the country as a whole, and obviously dropped any attempt at equality of representation for the provinces in favour of a roughly proportionate relationship to the membership of the House of Representatives. The all-important early years of the Council's existence were years of peculiar difficulties and by 1856 it was clear beyond doubt that any implicit connection with the federal form advocated by Sir George Grey had been rudely shattered. There had been a marked shift in favour of Auckland as a source for Councillors, induced by the difficulties of communication and the shortage of candidates from other parts of the country. In 1856 the new Premier, Stafford, emphasized this difficulty in finding gentlemen to accept seats, but affirmed that the Government 'entirely recognised the desirability of an equalisation of representation'.30 Already in 1856, despite seventeen Ufe appointments gazetted, the size of the Council had shrunk to twelve members. Resignations and non-acceptances of appointment meant that at the beginning of that session Canterbury and Otago were without representatives whilst Auckland mustered seven of the twelve members. Moreover, membership figures always had to be qualified by attendances which were often lax and further emphasized the Auckland predominance. Wellington, for example, had one member, Petre, who never took his seat at all although officially he remained a Councillor for almost seven years. Out of 62 meetings during the 1856 session, the Auckland representatives equalled the representation of the rest of the country, or predominated, on 44 occasions. For the first six weeks of the session only two nonAucklanders were present and without this one-sided attendance the Council would not have reached the quorum of five members present on any occasion.31 The effects of this Auckland predominance were, in one sense, less serious than might have been expected, for there is no evidence that that province gained any particular advantages from its so N.Z.P.D., 1856, p. 273. Stafford. 31 If an 1855 motion to exclude members of the Provincial Councils from sitting in the Legislative Council had been passed, the upper house could have been rendered totally unworkable in the 1856 session. The motion was defeated by three votes to two. Four of the five taking part in the division were Aucklanders. N.Z.P.D., 1855, p. 557. Also Appendix I.

A COLONIAL HOUSE OF LORDS

31

representation in the upper house. On the other hand, this lack of geographical balance must have further undermined the chances of the Legislative Council establishing itself successfully as part of the legislative machinery of the colony. Moreover, the general similarity between personnel of the two Houses must be counted a weakness of the new Legislative Council, since it needed to represent elements not adequately provided for in the lower house. Yet the lower house even vied with it in aristocratic aspirations, for, apart from its quota of gentry, it could boast of comparable connections with the peerage.32 Worse, since both Houses had difficulties in attracting candidates at first,33 the new upper house, marked out for early reform, and lacking goodwill, pre-eminent distinction, or any other marked distinguishing characteristic, was hardly likely to prove an attractive arena to able politicians. Even compared with the upper house of New South Wales, for example, the early New Zealand Legislative Council was a surprisingly undistinguished body. Yet, writing to Sir George Grey a few years later, the Duke of Newcastle contrasted the pools of political talent available in the two colonies and suggested that a New Zealand Governor had a great advantage over his counterpart in New South Wales because there were 'so many men of education and talent in the country'.34 If such a pool of talent was available, Grey's appointments hardly reflected it, and it is difficult to avoid the conclusion that he dealt with the establishment of the Legislative Council in a most off-handed and perfunctory manner. The first two years of the Legislative Council's existence were critical, for they provided an indication of its future status at a time, prior to the introduction of responsible government, when its claim to independence was strongest. The record of legislation appears to bear out William Swainson's claim that its work was characterized by 'painstaking care and business-like proceedings . . . '35 but comparatively little was achieved by the General Assembly as a whole at this time and the Council took little part in discussing the burning issue of responsible government. Its work, if quietly useful, did not attract attention or win public support. 32 e.g. Stuart-Wortley was the second son of Lord Wharncliffe. a" New Zealand Spectator, 19 November 1853. 34 Newcastle Papers, Newcastle to Grey. 26 November 1862. (Private) 35 W. Swainson, New Zealand and its Colonisation, pp. 294-5. Details of the quantities of legislation may be seen in Appendices V, VI, and

vn.

32

THE DIFFICULTIES OF

ESTABLISHING

Difficulties first arose when it became clear that, although the lower house was to have three responsible representatives in the Executive Council, the upper lacked any comparable influence because of the Attorney-General's refusal to regard himself as part of the Government. Representations by the Council led to the appointment of Francis Dillon Bell as ministerial representative in the Council on 30 June 1854.36 Within seven days, however, Bell resigned his seat in the Executive Council because, Sewell records, he 'suddenly became nervous about Mrs Bell' and returned to Wellington.37 His anxiety must have been rapidly quieted, for he retook his Legislative Council seat just over one month later on 14 August 1854.38 By a singular conjuncture of circumstances, these moves had made a seat available in the Executive Council at a difficult moment. Earlier, because of an oversight,39 the important Auckland city interests had not been included amongst the representatives appointed to the Executive Council from the lower house. The Acting-Governor, Wynyard, objected to the addition of more than three members to the Executive Council from the General Assembly, although he had had to waive his objection in view of the pressure of the upper house for representation. The subsequent resignation of Dillon Bell made available an Executive Council seat which was then duly offered to an Auckland lawyer, T. H. Bartley, M.H.R., 'on condition that he resigned his seat for Auckland City, and accepted a seat in the Legislative Council . . . '40 Gibbon Wakefield thought at the time that the important Waste Lands Bill of the new government would have been thrown out if a further concession by the Governor—that of a fourth seat in the Executive Council, which was given to the Brownite Mr Bartley—had not made an impression that the Ministry was getting stronger, and would probably last for years. This appearance turned many their way; and every office-seeker became attached to them.41 Thus, within six weeks, the Legislative Council was first used avowedly for a political appointment. '« N.Z.P.D., 1854, pp. 165-6. Bell. " Sewell Journal, Vol. 1, Pt. II, 9 July 1854. as N.Z.P.D., 1854, p. 297. s» Ibid., pp. 99-101. Gibbon Wakefield, Cf. Herrón, op. cit., p. 317. *° N.Z.P.D., 1854, p. 189. 41 E. G. Wakefield, letter dated Auckland, 11 September 1854 and published in The New Zealander, 18 September 1854, and The Spectator, 4 October 1854. See also Sewell Journal, Vol. 1, Pt. II, 2 July 1854.

A COLONIAL HOUSE OF LORDS

33

Dillon Bell also figured in another important change. Young, talented and ambitious, fluent in French and Maori, a landowner and good administrator, it was hardly to be expected that he would be content to remain in this upper house and within eighteen months of his appointment, whilst still technically a Legislative Councillor, he was elected to the House of Representatives.42 Thus there began in New Zealand, in 1855, a process of sapping the upper house of much of whatever political talent it possessed, a process emulated by Great Britain over one hundred years later with as yet unforeseen results. Of more immediate importance was the upsetting of the original rough balance of representation in the Legislative Council in favour of Auckland. Of five new appointments made between 1854 and 1856, three were from that area, so that, relative to the total membership of the chamber, the proportion held by Auckland increased rapidly from just over one-third to nearly half—36.36% to 46.67%. This growing predominance of one province jeopardized any representative function that the Council might have had. The most important single obstacle to the successful establishment of the new Legislative Council, however, was the mode of making appointments. Nomineeism, destined in the long run to prove the Council's undoing, undermined it from the outset. Sir George Grey's appointees quickly proved innocent enough— mediocrities rather than devil's advocates—and few attacks were launched upon individuals. Where such attacks did occur, as in the case of Petre, it was on the grounds of alleged incapacity, not of being a nominee. Many Councillors spoke out for reform and seemed unlikely to constitute a serious impediment to change. One Councillor believed nomineeism divested of its most repugnant features by the device of life tenure,43 and antipathy to nomineeism, although wide and general throughout New Zealand, varied in intensity. Auckland was almost traditionally less hostile than other areas.44 Apprehensive of Southern dominance of the House of Representatives,45 Aucklanders were obviously less opposed to a nominated upper house in which they rapidly secured a majority. But the principal issue fought over by the first New Zealand Parliament proved to be responsible government rather than the *2 From 16 November 1855 to 15 January 1856 he was a member of both houses, there being no provision at that time to prevent such anomalies. 43 N.Z.P.D., 1854, p. 69. St Hill. 44 Herrón, op. cit., p. 553, et seq. 43 e.g. N.Z.P.D., 1855, pp. 495-8.

34

THE DIFFICULTIES OF ESTABLISHING

Legislative Council and nomineeism. This issue overshadowed all others. Gibbon Wakefield saw the relative priorities quite clearly when he said: An immediate change in its [the Legislative Council's] composition was of less importance than many other measures . . . if they obtained responsible government, the worst evils of a Nominee House46 controlling a House of Representatives would be averted . . . Under these circumstances antipathy to nomineeism gave place to a more damning quality—public indifference. The Lyttelton Times declared : We have scarcely had time as yet to notice the proceedings of the Legislative Council. The great interest of the session is naturally centered in the House of Representatives. All the business is done there by the men chosen by the electors of New Zealand. The people have no sympathy with the other House. They care little what its members think or do; and they will not care unless those members thwart their Representatives; in which case very little allowance will be made for 47 any opposition however constitutional or conscientious it may be. The Auckland correspondent of the Nelson Examiner poked fun at them: The Legislative Council has played but a very feeble part, and it is acknowledged to have fairly won for itself the appellation of the 'Council of Old Ladies'. The poor old dames appear to be highly pleased with their tinsel, and are 48greatly shocked when any rude tongue questions their usefulness. The anonymous writer of the Catechism of the Constitution of New Zealand found that The nominee members of a Legislative Council in a colony are exclusively persons whom the colonists have refused to elect as their Representatives, or who from an instinctive sense of their own merits have declined to seek the suffrages of the people. They are therefore in a political aspect not the most, but the least eminent of the colonists; and their appointment, so far from being a mark of distinction, is precisely the reverse. It is impossible that a house so constituted should possess the respect of the colonists . . . 4 9 *67 New Zealand Spectator, % March 1854. * Lyttelton Times, 12 August 1854. 48 Nelson Examiner, 6 September 1854. *9 Catechism of the Constitution of New Zealand. By a Member of the Provincial Council. Lyttelton, 1855.

A COLONIAL HOUSE OF LORDS

35

It is clear that Legislative Councillors were not regarded as an embryonic aristocracy, or even as any more conservative than the members of the lower house.50 Many who were to become prominent in public Life were self-made men who became respected for their practical achievements.51 Not surprisingly, there was a considerable current of feeling against the institution of a 'show aristocracy'.52 As early as May 1854, Sewell noted that the Legislative Councillors were derisively referred to as 'the Peers'.53 But even more important was the lack of differentiation based on class or interest between the two Houses of the General Assembly, for the first assemblies and even the Provincial Councils were dominated by runholders, merchants, wealthy agriculturalists, solicitors, doctors, officials and newspaper proprietors.54 Thus, although it quickly came to be accepted that nomineeism was now a secondary matter, it was generally assumed that the Legislative Council would be altered soon after the attainment of responsible government. 60 61 s2

The Press, 1 February and 22 February 1862. E. Hodder, Memories of New Zealand Life, pp. 57-60. e.g. Southern Cross, 21 October 1856. 53 Sewell Journal, Vol. 1, Pt. I, 17 May 1854. 54 e.g. Herrón, op. cit., p. 192.

4 The 'Life Peers' 1854-91

Officially, Legislative Councillors appointed from 1854 to 1891 were known simply as 'Legislative Councillors'. They were appointed for life, entitled to the designation 'Honourable' (from 1856 onwards), and, in contrast to members of the House of Lords at that time, were paid an honorarium (also dating from 1856). The term 'peers' or 'life peers' which was applied to them was derisory in intent. Sewell noted the use of the former term in this connection as early as 1854 and this fashion was given a boost by the unsuccessful attempt to introduce life peers in Britain in 1856.1 When it was first established it was hoped that what the Legislative Council lacked in tradition might be compensated for by investing it with an elite character based upon life membership and strict limitation of membership. So small was the membership that it was widely believed that once the full complement of members was reached the doors of the Council would remain closed for many years, perhaps even denying able men of succeeding generations the opportunity to serve their country in this capacity. In practice this problem did not arise. Although the early difficulties of finding enough men to serve soon passed (after the honorarium was introduced) it soon became obvious that the Council with its high rate of absenteeism was too small to function efficiently and, as a result, the limit of membership was raised to twenty in 1857. This in turn brought new problems because the increase in membership, together with an unexpectedly rapid turnover of personnel, had given one particular government an overwhehring advantage. The Stafford Ministry during five years in 1

See P. A. Bromhead, The House of Lords and Contemporary Politics 1911-1957, pp. 245-6.

THE 'LIFE PEERS' 1854-91

37

office made twelve appointments, and when it went out of office in July 1861 about two-thirds of the members of the Council were Stafford nominees. Not surprisingly, Stafford's successor immediately pressed for what was in effect a similar right to nominate and the Colonial Office, appreciating the political implications of the situation, decided to abandon the limit altogether. Thus, within eight years the advantages of life appointment proved to be illusory and the possibility of giving the Council an exclusive character had to be abandoned. There were strikingly few limitations placed upon the number or type of people that governments could appoint to the Council. If the Legislative Council failed to represent either geographical or racial interests adequately, the question arises what precisely did it represent? Clearly, a man's occupation or profession was an important consideration in making appointments but once again there were no rigid rules, although a number of conventions gradually emerged. Archbishops and bishops were not included, nor were judges after 1866 when Chief Justice Amey resigned. Universities had no formal representation. Until 1891, a person was, in theory, appointed for his overall qualifications, not to represent a particular vocation or organization. The House of Representatives provides a useful yardstick against which to measure the appointments made to the Legislative Council. A comparison of the age groupings of members of the two Houses between 1854 and 1875 shows that the lower house included members first elected as young as twenty years, or as old as seventyone years, whilst the youngest councillor appointed was aged twenty-seven, and the oldest sixty-seven. There was a gap of approximately five years in the average age of appointment or election to the two Houses, although the overall average of the upper house rose because of the longer period of tenure of Legislative Councillors.2 After 1876, with a developing tendency for members of the lower house to retire to the upper, there was a steady widening of this gap and, with the running down of membership during the depression years before 1891, this produced the impression of a charnel house. There was some difference of emphasis between the two houses in the level of educational attainment, although the general pattern was similar. The Legislative Council included fewer men with only primary education and more university trained personnel.3 2

See Table B. » See Table C.

TABLE B Average Ages of Councillors on First Appointment 1854-76

Date

Ministry Appointed by: Governor Fox Stafford Fox Vogel Atkinson Grey Hall Whitaker Stout-Vogel

1853- 5 1861- 2 1866- 9 1869-72 1873- 6 1876- 7 1877- 9 1879-82 1882- 3 1884- 7

Legislative Council Primary Post-primary University No Information

2 41 24 26 93

( 2.15%) (44.09%) (25.81%) (27.95%)

Average age on appointment 42.29 45.80 48.50 49.22 51.80 51.00 57.43 53.80 68.00 58.22

Average age of Leg. Co. 45.13 (1856) 46.16 (1861) 50.32 (1866) 51.70 (1871) 55.60 (1876) 58.85 (1879) 60.31 (1881) 62.82 (1884) 63.61 (1887) 65.39 (1890)

TABLE C Educational Background (level reached) 1854-75 House of Reps. House of Reps, (Webb) (corrected)

Average age of House of Reps. (Webb) * 39.2 40.4 43.3 45.0 46.6 45.9 45.7 48.5 49.5 47.4

1876-92 Legislative Council

25 ( 8.87%) 84 (29.78%) 46 (16.31%) 127 (45.04%)

24 ( 9.13%) 126 (47.91%) 43 (16.35%) 70 (26.61%)

3 15 6 6

282

263

30

(10.00%) (50.00%) (20.00%) (20.00%)

House of Reps. 138 189 87 97

(27.01%) (36.98%) (17.03%) (18.98%)

511

* See L. C. Webb, Government in New Zealand. The figures cited in Table C 1854-75 were inaccurate and had to be recalculated.

THE 'LIFE PEERS' 1854-91

39

TABLE D Place of Birth of Legislative Councillors 1854-75 New Zealand 2 ( 2.15%) 4 Great Britain 78 (83.87%) 21 Australia 1 ( 1.08%) 1 Others 9 ( 9.67%) 3 No Data 3 ( 3.23%) 1 93

1876-92 (13.33%) (70.00%) ( 3.33%) (10.00%) ( 3.33%)

30

There are no readily available statistics of places of birth of members of the lower house, but close coincidence between the two houses seems likely, with the change from United Kingdom-born to New Zealand-born possibly taking place more rapidly in the lower house because of the longer tenure of office of Councillors. The Council's representative function was inevitably determined by the occupational interests of its members, and the proportions of these occupational groups were in turn determined partly by the availability of personnel and largely by the inclinations of the appointing government. Just as, in the early years of the colony, geographical representation in the Council was biased in favour of Auckland, in the same fashion the occupational distribution heavily favoured large farmers, but, unlike the unbalanced geographical representation, this persisted much longer. The first group of Stafford appointments had fallen into three broad categories—businessmen, officials, and farmers. Of the business men, Johnston, a wholesale merchant, was reputed to be skilful at finance but a poor speaker; whilst Blakiston, son of a Staffordshire baronet, son-in-law of Bishop Harper, and a director of several companies, played an active part in the Council's activities at first, but after 1860 his first concern appears to have been his business commitments and he took little further part in proceedings, thereby exemplifying one of the problems of appointing able young men to the Council. Officials included the Chief Justice, called to the Council on his arrival in the colony, and Colonel R. H. Wynyard, Commander of the Troops and ex-Administrator of the colony. The appointments were chiefly characterized by the number of large landholders included. Four of the seven Fox Ministry appointees in 1861-2 were large landholders, and so were all but one of the five made by Domett. In 1865, the largest number of new appointments to the Council in any year since its inception included eight runholders. It might be thought that it was only amongst such a group that men with the necessary experience

40

THE •LIFE PEERS' 1854-91

could be found, but four of these eight runholders appointed by Weld in 1865 had virtually no experience of local government and only three of this batch of ten appointees served for more than two years. The advent of another long-lived Stafford Ministry at the end of 1865 again produced a plethora of appointments to the Council. Of 22 appointments made by this second Stafford Ministry, 13 were farmers and most of these were again large landowners or runholders. Thus, in two periods of office, 1856-61 and 1866-69, Stafford Ministries made 36 nominations to the Council, almost two-thirds of them large farmers and runholders. Stafford, a runholder himself, must bear some responsibility for perpetuating the Legislative Council as a stronghold of the large landholder group. In fairness to him, however, it should be pointed out that even when an element of diversification was introduced, the result was not always satisfactory. Francis Fenton, for example, the Chief Judge of the Native Land Court, appointed in 1869, was required to resign with the passing of the Disqualification Act: a curious appointment in view of Stafford's own usually strict views about disqualification provisions. The eccentric C. J. Pharazyn, appointed in 1869 at the relatively advanced age of 67, added a certain amount of colour. It was reported of him that in 1872 he lost his spectacles, and, having advertised for them without success, walked around the capital with a notice hung upon him, 'Lost, a pair of spectacles', because, he claimed, the Wellington newspapers were so dull that nobody read them and accordingly it was of no use advertising in them.4 Eleven years before he had been removed by an earlier Stafford Government from the Commission of the Peace for improper conduct. A third appointee, Nathaniel Levin, also a businessman and the first Jew appointed, distinguished himself by never making a speech.6 But Stafford alone was not culpable. Fox, whose government made a total of 17 nominations between 1869 and 1872 at the rate of close to one appointment for every two months in office, also maintained the practice of appointing a preponderance of large landholders. In a letter to the Wellington Independent in 1870, a Wairarapa reader noted that With the exception of the official members there is scarcely one in that chamber who is not a runholder, or more or less directly *5 Hawkes Bay Herald, 20 January 1872. Levin had apparently been offered a seat as early as 1862. See I. M. Goldman, History of the Jews in New Zealand, p. 164.

THE 'LIFE PEERS' 1854-91

41

interested in runs. This is doubtless partly to be accounted for by the circumstances that a large proportion of the members of this class are better educated, have more leisure, and occupy a higher social position than the members of any other class in the community; but the misfortune is that they, as a class, are less interested in the opening up, colonisation, and progress of the country than any other class in the colony.6 Stafford and Fox continued to make this type of appointment at a time when the composition of the lower house was beginning to change and the non-runholder group in the upper house was narrowing with the disqualification of officials. This disparity was emphasized because, at the same time, the Council was also growing in size. Between 1860 and 1869, 52 appointments had been made and 32 Councillors had vacated their seats. By 1872, with a total of 47 members, the Council had more than trebled in size in less than twenty years, compared with the House of Representatives, which had slightly more than doubled. Thus, although the Council did not develop the character of a closed élite, it did develop a specific character of its own. The presence of the large runholders in the Council continued to evoke bitter complaints from this time onwards, and in 1874 a member of the House of Representatives proposed: That in the opinion of this House the nomination of tenants of the Crown to seats in the Legislative Council is highly objectionable and inconsistent with the independence of Parliament.7 It was claimed that fourteen of 45 Legislative Councillors were tenants of the Crown and that this gave them an 'overwhelming predominance of voting power especially as these members were particularly attentive to their duties where Land Bills were concerned'. By the Disqualification Act of 1870, railway contractors had been excluded from membership of the General Assembly; why, it was asked, should tenants of the Crown, who exercised such great influence in preventing land being broken up into small lots, not be excluded from the upper house?8 Oddly enough, no objection was raised to such men being members of the House of Representatives because they were elected. Yet three years later a writer described sixteen large landholders in the Lower House—a number preposterously out of proportion to the representation enjoyed by « Wellington Independent, 1 December 1870. i N.Z.P.D., 1874, Vol. 16, p. 973. Murray. » Ibid., pp. 977-8. Shepherd.

42

THE 'LIFE PEERS' 1854-91

the rest of the community; . . . It would be superfluous to descant upon the immense influence of the runholders in the Upper House, which is entirely under their control. The interest is preponderant in the Cabinet.9 Large landholders, and particularly runholders, remained an important element in both houses throughout the period 1854 to 1891, but their predominance in the Council was emphasized, as the lower house slowly changed, by their longer tenure and by the tendency of cabinets to continue with the traditional type of appointment. Of 123 nominations for life to the Legislative Council, 47 nominees held runs, estates or stations, or had substantial interests in such properties; two were agents for absentee landowners, and 34 either owned or had interests in lesser farms. By the 1880s, a situation had developed in which the large landholders, who had hitherto dominated the whole legislature, had an overwhelming influence in one chamber only. In theory, this situation should not have been without its advantages. It certainly helped to give the upper house the definite character which it had hitherto lacked. Moreover, in the '70s and '80s, in particular, the Council began to assert itself more frequently and many of its members clearly came to regard themselves as belonging to a colonial House of Lords. Unlike the British House of Lords, however, the interests of the landholding group in New Zealand were based heavily upon leasehold property. Not only did these interests conflict with the development of the country but, to add insult to injury, Legislative Councillors were also paid. It might be expected that the upper house would have been a useful counterweight to balance representation between the two main islands of the country, thus giving the legislature a semifederal character. Such a move would have reinforced its position vis à vis the House of Representatives and given it some claim to speak for the country as a whole. But the opportunity was missed. If anything the composition of the upper house tended to reinforce the lack of balance in the lower house. Alternatively, the upper house could have become the chamber in which the provinces were equally represented. In practice, although geographical representation played an important part in the selection of nominees, the process was essentially a rough and ready one. As we have already seen10 in the early years Auckland representation predominated. This began to decline after 1862 and dropped rapidly after the 8 C. W. Purnell, The New Zealand Confederation, p. 4. i° See p. 30 above.

THE "LIFE PEERS' 1854-91

43

seat of government was moved from Auckland City to the more central site of Wellington. By 1868 Auckland representation had dropped to 14.71% of the total membership of the Council. TABLE E Auckland membership as a proportion of the total membership of the Legislative Council 1853-67

1853 1854 1855 1856 1857

30.7 42.7 46.6 58.3 50.0

1858 1859 1860 1861 1862

45.0 40.0 47.0 45.0 40.0

1863 1864 1865 1866 1867

35.7 34.6 22.8 17.1 16.6

Although sporadic attempts were made to establish a rough balance between the major provinces, provincial proportions fluctuated and, more often than not, there were substantial differences in the level of representation. Thus, Wellington representation during the 1860s, for example, varied considerably. TABLE F Wellington membership as a proportion of the total membership of the Legislative Council 1863-70

1863 1864 1865 1866

10.7 11.5 11.4 17.1

1867 1868 1869 1870

13.8 12.1 17.1 22.2

The minor provinces also appear to have been accorded a 'notional' quota of two or three seats and this persisted regardless of the total size of the Council or population changes. Marlborough, Westland and Southland all seem to have been treated on this basis. This meant that these provinces lost ground as the Council grew bigger. Nelson, in particular, suffered in this way. It started with three seats in a Council of 13, second only to Auckland; in 1885 there were six Nelson seats in a House of 53 and by 1891 this had dropped to three out of 40. A golden opportunity was missed after the abolition of the provinces in 1876, when the Legislative Council could well have taken on a new role involving a greater emphasis upon geographical representation. With equal representation for the various provinces it might have taken over part of the duties of the old Provincial Councils. But the lower house was too intent upon its 'log-rolling' activities described by a Councillor in 1885 as 'insane localism',11 N.Z.P.D., 1885, Vol. 53, p. 438. Richmond.

44

THE 'LIFE PEERS' 1854-91

so that Councillors merely congratulated themselves upon being above such things. Yet local interests could not be wholly ignored and the Premier, Sir Robert Stout, summed up an ambivalent position when he stated in 1885: I do not say that members in the Council vote according to provincial districts, but I say that we have a right to look to the representation of districts, and I apprehend that without representation in the Council districts would be discontented.12 Some idea of the complexity of the issues involved in the selection of appointees, and the importance of geographical factors in this process, may be gleaned from the activities of the Hall Ministry between 1879 and 1882. In 1879, Major Richmond solicited a position for his son in the Council to fill the place left vacant by Dr Renwick and to 'look after Nelson Bills'.13 In the following year the Minister of Justice, Rolleston, telegraphed to Hall supporting the view that they could not use a seat in the Council as a means of pensioning off a refractory officer—a Major Jackson.14 Another importuner was Judge Bathgate, who sought a seat as compensation for having suffered from the policy of retrenchment. He was fobbed off with the excuse that the Council was already very full and that 'for the one or two vacancies which may fall to our lot, there are many strong claims upon us of long standing . .. '15 Earlier, in a little known instance, the Governor, Sir Hercules Robinson, had rejected his minister's recommendation that he should call retired Supreme Court judges Gresson and Chapman. A cabinet minute book of this period reveals that, at a Sunday morning meeting, a vote had been taken on the question of a recommendation, with Hall, Oliver, Rolleston and Bryce supporting the proposal and Whitaker opposing. When the Cabinet was informed at its next meeting that the Governor entertained strong objections to adding any members to the Legislative Council, Cabinet agreed not to press the recommendation but reserved its position. The matter was raised again four months later, but Whittaker's proposal to postpone consideration was carried by four votes to two.1' Most of the problems that Hall faced at this time in connection with the Legislative Council were centred about the problems of « Ibid., 1885, Vol. 51, p. 258. Stout. i» Hall Papers, M. Richmond to Hall, 13 December 1879. " Ibid., Rolleston to Hall, 29 January 1880. (Telegram) Jackson was a defeated candidate for Waipa in the election of 1881. 15 Ibid., Hall to Bathgate, 21 August 1880. « P.M. 4/1, 16 and 26 May 1880. Also 2 September 1880.

THE 'LIFE PEERS' 1854-91

45

Auckland representation in the Cabinet and Nelson representation in the Council. Whitaker twice opposed the appointment of George McLean to the Council. The first occasion was in 1880, when McLean was also to join the Government. It was objected that this would deprive the Government of the possibility of providing through that channel for the representation of Auckland in the Ministry; and the second was in 1881, because of the over-representation of Otago in the Council.17 In March 1880, Whitaker made the curious suggestion that an Epsom (Auckland) barrister, Edwin Hesketh, should be appointed to both the Executive and the Legislative Councils without portfolio, adding that, since Hesketh was not wealthy, 'I would in addition to the £210 he would receive make it up to say £500 from amongst ourselves.'18 On the other hand, in 1881, he disapproved of the appointment of the Mayor of Auckland, McCosh Clark, to the Ministry, not only because he did not think he would be 'of strength' but also because of objections to having two Auckland cabinet representatives in the Legislative Council.19 Whitaker counselled against the suggested appointment of Edward Wakefield as 'Chairman' of the Legislative Council on the grounds that it was a bad precedent to appoint a defeated candidate to a position in the upper house, his own case notwithstanding;20 and, in the case of the appointment of Stevens in March 1882, although he regarded the Council as full, he still thought it desirable to appoint one additional member for Auckland, and another for Nelson.21 Hall, however, continued to encounter difficulties with the Nelson problem. He pointed out that J. C. Richmond's candidature and defeat for the Waimea meant that temporarily, at least, it was almost impossible to nominate him; Barnicoat was a possibility, but Albert Pitt—obviously the best choice (for he had not stood in the election of 1881)—hoped to return to the lower house and Hall believed that 'his appointment would be considered by our supporters a very peculiar one just now'.22 It is clear that the expectations of various areas played a role in the composition of the Council but that it was even more important as a channel by which selected representatives of certain areas might be introduced into the Cabinet. With the honorarium lr

Hall Papers, Whitaker to Hall (Confidential Memorandum), 28 January 1880. Also Ibid., Whitaker to Hall, 15 December 1881. « Ibid., Whitaker to Hall, 22 March 1880. ™ Ibid., Whitaker to Hall, 10 February 1881. » Ibid., Whitaker to Hall, 28 December 1881. " Ibid. 22 Ibid., Hall to Curtis (Private and Confidential), 21 February 1882.

46

THE 'LIFE PEERS' 1854-91

of 200 guineas per session it was also an attractive form of compensation for defeated candidates and those persons who felt that, for one reason or another, the state owed them a debt. Generally speaking, the Legislative Council was never highly regarded as a stepping stone in a political career and in many cases Leaders of the Council and its representatives in Cabinet were selected from outside its ranks. As early as 1861, Dr Pollen had been appointed specifically to lead the Council and represent the new Fox Ministry, whilst Henry Sewell was appointed because he was needed in the Ministry as Attorney-General. Pollen had earlier been unsuccessful in his bid to enter the House of Representatives, whilst Sewell, who had been in England between 1856 and 1859, was returned to the lower house in 1860, but did not stand again when Parliament was dissolved at the end of that year. Sewell twice used the Council as a parliamentary pied-à-terre, a habit he shared with John Hall, whom Fox appointed in 1862. As early as 1857 Sewell had written to Stafford asking for a seat in the House of Representatives and suggesting that if this were not possible, he might put him into the Legislative Council for the time being.23 He was a member of the Legislative Council between 1861 and 1865 when he resigned in order to re-enter the House of Representatives. In June 1870 he was appointed Minister of Justice in another Fox Government and re-appointed to the Council once more as a seat was not available for him in the lower house on his return from another trip to England. Hall used the Council even more freely. It enabled him to reconcile parliamentary and private duties to a unique degree by always providing an immediately available place within the General Assembly. In all he was appointed to the Council four times; he resigned on three occasions and lost his seat once on a technicality when the Governor granted him leave of absence but neglected to inform the Speaker. The validity of his last resignation in 1879—he entered the lower house nine days later and shortly after became premier—was bitterly disputed by the defeated premier, Sir George Grey, on the grounds that the Governor should have refused to accept it and that the Council was being dragged into disrepute.24 From his re-entry into the House of Representatives in 1879, however, Hall remained continuously a member until his eventual retirement 23 Stafford Papers, Sewell to Stafford, 14 December 1857. 2* N.Z.P.D., 1879, Vol. 32, pp. 392-3, cf. pp. 397-408. For detaüs see also Hall Papers, Bell to Hall, 16 August 1879; Sir Hercules Robinson to Hall (Memorandum), 21 October 1878.

THE 'LIFE PEERS' 1854-91

47

from politics in 1893 at the age of 69. Another nominee, C. C. Bowen, was first appointed to the Council by Vogel in 1874, when he became Minister of Justice and Commissioner of Stamp Duties. One week after appointment, a seat unexpectedly becoming available in the House of Representatives, he promptly resigned and transferred to the House of Representatives. He was reappointed to the Council in 1891 and remained a member for 26 years. There was thus a steady transfer of active politicians from the Council to the House of Representatives,25 but few were keen to tread the path in the reverse direction, even to represent a government in the upper house. The problem of ministerial representation caused difficulties for Fox Ministries three times in just over a decade (1856, 1861, 1869). It also led to the absurd situation of J. C. Richmond having to resign from the House of Representatives against his will in order to provide for ministerial representation in the Council. Richmond complained bitterly of his fate26 and took the first opportunity to return to the lower house after the defeat of the Ministry in which he had been serving. By contrast, the case of W. B. D. Mantell, who also served in the Weld Ministry and was called to the Council after deciding not to contest the 1866 election, caused considerable surprise. Occasionally the Legislative Council was used as a place of political refuge, as in the case of James Paterson in 1869. Paterson, who had been one of Stafford's 'four respectable dummies' in his temporary cabinet in 1865, later incurred the wrath of his electorate and suffered hostile demonstrations when the Stafford Government refused to delegate to Superintendent Macandrew of Otago the usual power to administer the goldfields.27 He resigned his seat in the House of Representatives and was promptly called to the Council shortly before Stafford's own defeat and resignation. The abolition of the provinces led to greater direct pressure for seats in the General Assembly and the practice of using the Legislative Council as a superannuated28 haven of rest to which members of the House of Representatives could retire really began under the Grey Ministry (1877-79). Until 1878, it had been rare for an ex-member of the House of Representatives to be appointed 25 28 27 28

Others included Dillon Bell, William Gisborne and F. A. Whitaker. Richmond-Atkinson Papers (Ed. Scholefield), Vol. II, p. 166; J. C. Richmond to Mary Richmond, 28 June 1865. Also below, Chapter 5. W. P. Morrell, The Provincial System in New Zealand 1852-76. (2nd éd.), p. 190. The practice of paying Legislative Councillors an honorarium commenced in 1856. See N.Z.P.D., 1856, p. 265.

48

THE 'LIFE PEERS' 1854-91

promptly to the Council. Between 1870 and 1876, for example, the average gap between leaving the lower house and appointment to the upper had been three years and six months. After 1877, older members came to be translated almost as a matter of course, and eighteen of the thirty-seven appointments made between 1877 and 1891 were completed within three months of members leaving the House of Representatives. One member, W. H. Reynolds, publicly announced that he intended to solicit such an appointment, treating it as his right. Having told his audience that he intended to retire from the House of Representatives, he declared: It was not at all unlikely that he would write to the Government asking them to place him in the Legislative Council. In doing so he did not think he would be asking too much or anything unreasonable after 25 years' service.29 Reynolds was duly appointed to the Legislative Council in the same year. The steady growth of this tendency on the part of members of the House of Representatives to retire to the Legislative Council is reflected in the rise of the average age of members at appointment. Between 1854 and 1875 it stood at 46.72 years. From 1876 to 1891 it had risen to 57.12 years.30 The Council also provided a useful means of making appointments to ministries when a candidate was absent overseas during an election or when it was felt necessary to achieve a geographical balance. In two cases, such appointments were made following candidates' defeats in a general election—Pollen in 1861 and Whitaker in 1879. The latter appointment caused much criticism and it is significant that it was following this that premier Hall felt unable to appoint J. C. Richmond to the Council immediately after his failure to win a seat in the House of Representatives in 1881. Lastly, and almost inevitably, appointments of this type were used for party purposes. It is often difficult to determine just how important this use of patronage was, particularly as there were no clearly developed party lines in the Council. Virtually no consistent voting patterns emerge in the divisions held between 1854 and 1891, although this in itself does not preclude the use of influence by patronage. As early as 1862 the Fox Ministry's appointments had provoked an extraordinary degree of ire. One member of the House of Representatives asserted that the five members appointed in that 29 New Zealand Times, 10 January 1878. 3° See Appendix IV.

THE 'LIFE PEERS' 1854-91

49

year were 'notoriously all of one party'31 and in a scurrilous leader a Wellington journal questioned whether the appointments were 'a reward for political perfidy . . . an acknowledgement of them and their support . . . or a bribe for future silence'.32 A member of the defeated ministry alleged at the end of the session that there was a strong party opposed to the Government—'or rather in favour of the Fox Party . . . '33 But the five did not vote together as a party bloc; indeed, only one, 'Lord Henry' Russell, attended for the whole of the 1862 session and Hall only attended for the last week. In eight second and third reading divisions on government bills under the Fox Ministry 1869-70, Fox appointees cast 63 of the 112 votes in support of the Government's policies and only 17 of 88 votes in opposition. On the other hand, Stafford appointees distributed their favours fairly equally—55 votes with the government and 41 against. Despite this, in 1867 Stafford had made it quite clear after the vote on the Public Debts Bill that he expected at least certain of his appointees—the officials— to vote according to the wishes of the government employing them rather than according to their consciences.34 Two other ministries also aroused strong criticism by their appointments. In the case of the first, the Grey Ministry, a number of different causes seem to have contributed to the resulting ire. Sir George Grey, not uncharacteristically, started off in an unfortunate manner. He insisted upon nominating J. N. Wilson, a Napier barrister, to the Council, although not to the Ministry, whilst a vote of confidence was pending in the House of Representatives, causing early difficulties.35 The rate of appointment— nine members in two years—gave further grounds for irritation because it led to an increase in the total membership of the Council to 48 which was felt to be unduly large compared with a House of Representatives in which there were only 84 members. It was pointed out in the press in 1878 that when further 'expectants of honour' were appointed in the following year, the Council chamber would simply not be large enough to hold all the members.36 Already a call of the Council in 1878 had led to members sitting on the floor and 'jumping seats' and a resultant squabble had been widely reported. Moreover, in addition to the members actually si N.Z.P.D., 1862, p. 601. Colenso. 32 Wellington Advertiser, 2 July 1862. 33 Gore Browne Papers 1/2, No. 137. Tancred to Gore Browne, 11 October 1862. 34 See below Chapter 5. as See below Chapter 12. 36 New Zealand Times, 28 September 1878.

50

THE 'LIFE PEERS' 1854-91

appointed, it was known that more than one offer of nomination had been declined and it was rumoured that more seats had been offered than the Governor was likely to sanction. There were also rumours of manipulation or influence. Waterhouse wrote to Hall informing him that a member who had resigned from the House of Representatives in 1858, Reader Wood, had been offered a seat in the Council by Grey, 'I fancy with a view to withdrawing him from Parnell . . . ',37 although, in the event, Wood stood successfully for the district of Waitemata in the election of 1879. Another major complaint was that many of the appointees lacked conspicuous ability. Thus one newspaper commented on the appointment of John Martin: It is not easy to treat this strange Ministerial freak seriously. Surely the Premier and his colleagues must have been indulging in a little practical joking, for no sane man can suppose that any one member of the Cabinet believed that in advising his Excellency to call Mr Martin to the Legislative Council, he was securing an addition to that body of one who was more fitted than his fellows to fill so responsible and honorable an office . . . 38 In 1878 the Legislative Council itself took the unusual step of passing a motion requesting the Governor to present to it the ministerial recommendation to appoint new members to the Council. Yet by no means all the Grey Ministry nominees could be accused of incapacity, for they included such men as W. H. Reynolds and Thomas Henderson, ex-ministers and leading merchants, and P. A. Buckley, a future minister, all clearly men of considerable ability. It is difficult to escape the conclusion that Grey personally was a major element of discord and that with his unconcealed dislike of the Legislative Council he made it appear that that body was more sorely menaced than was, in fact, the case. Perhaps the most flagrantly political of all the life appointments, with the possible exception of the Atkinson appointments in 1891, were those of the Stout-Vogel Ministries of 1884 and 1884-7. A total of nine appointments was made by the Ministry in 1885, inflating the Council's membership to the unprecedented level of 54. Concern about the additional unnecessary expenditure involved was heightened by the fact that three of the nominees were unsuccessful parliamentary candidates, two of them at the 1884 election. Sir George Grey brought a no-confidence motion against the Ministry and there were complaints at this 'objectless imposition' « Hall Papers, Waterhouse to Hall, 21 August 1879 and 5 September 1879. a» New Zealand Times, 26 July 1878.

THE 'UFE PEERS' 1854-91

51

which was to cost the country an extra two thousand pounds a year.39 The Government claimed that the additional appointments were made on a territorial basis, but one Councillor summed up the current belief when he declared that he had no doubt that the object was 'a purely political one'.40 One of the nine claimed that he was not a supporter of the Government which appointed him41 and when the appointment of another had been speculated on in the previous year it was suggested that it would be on the explicit understanding that he would remain independent of party ties.42 But the acid test was the behaviour of the new members in the divisions on the stiffly contested government District Railways Bill.43 Only one, Shrimski, consistently opposed it; two others, Walker and Morris, were absent for the greater part or all of the divisions; the remaining six faithfully supported the Government and, but for them, the Bill would have been rejected and an antagonistic motion carried. Undoubtedly, from the 1870s onwards the temptation to use the upper house as a form of patronage proved more and more difficult to resist. The 'Life Peers' by and large were not outstanding men, and the steady addition of persons appointed for political purposes, defeated candidates, retired M.P.s, in short, pensioners of one sort or another, did much to discredit any useful work that the Council was able to perform. Even so, generally speaking it was less a question of abuses than of a lack of virtues. By 1890 it was generally admitted both inside the Council and out mat the system of 'life peers' had failed. s» N.Z.P.D., 1885, Vol. 51, pp. 249-79. Ibid., p. 502. Pollen. Ibid., p. 496. Kenny. Lyttelton Times, 22 June 1884. The reference was to William Swanson. For the significance of railway legislation at this time see D. A. Hamer, 'The Agricultural Company and New Zealand Politics 1877-1886'. Historical Studies Australia and New Zealand, Vol. 10, No. 38, May 1962.

40 41 42 43

5 Why the system failed

There is no single cause which led to the failure of the system of life appointments to the Council from 1854 to 1891, but rather a number of clearly related factors which taken together made up an overwhelming case against it. After 1854 it steadily became less a matter of what the system was, much more a case of how it was used or abused by successive governments. Nevertheless there were structural failures within the system itself. To begin with the Legislative Council as conceived by Pakington had been intended to be the part of the constitution with the greatest degree of permanence, but by the end of 1857 over 50 per cent of the members officially recorded as appointed in 1853 had already left. The rate of turnover was not so high subsequently but it continued to be greater than expected. Moreover, it was not confined to the young and politically ambitious but was spread fairly evenly throughout the age-ranges. A feature was the high percentage of members who resigned after only short periods of service (over 25 per cent served for no more than four years). The House of Representatives, and to some extent provincial politics, exercised a constant attraction upon Councillors throughTABLE G Rate of Turnover of Personnel 1853-75 Members holding office Less than 1 year 1-2 years 2-4 years 4-6 years 6-8 years 8-10 years Over 10 years

5 9 11 5 7 11 45

( 5.38%) ( 9.68%) (11.83%) ( 5.38%) ( 7.35%) (11.83%) (48.37%)

WHY THE SYSTEM FAILED

53

TABLE H Analysis of the Causes of Vacation of Seats 1853-911 To Provincial or Local Politics Health, old-age, death Return to England To stand for lower house Disqualification for absence Disqualification other than for absence Business commitments Other reasons No data

1853-75 5 8.33 4 6.69 14 23.33 6 10.00 8 13.33 5 8.33 2 3.33 5 8.33 11 18.33

1876-91 — — 27 64.30 1 2.38 2 4.76 4 9.52 2 4.76 — — 2 4.76 4 9.52

60

42

out the period 1853-75, and 18.33 per cent of all resignations were due to members transferring from the Legislative Council to other fields of political activity—more than half to the House of Representatives. Such a movement clearly harmed the general standing of the Council in the eyes of the public. Until the Disqualification Act of 1870, transference was particularly easy because of the absence of any specific requirement to resign from the upper house before contesting a seat in the lower. Bell in 1855, Sewell in 1865, and J. C. Richmond in 1866, all availed themselves of this insurance. Richmond, the last recorded case, stood for the House of Representatives less than nine months after resigning from it, when the Weld Ministry fell in 1866. On this occasion, the Gazette drew attention to the fact that he was a member of both Houses between 2 March 1866 and 23 April2 and the premier, Stafford, announced his intention to rectify such anomalies, but did not contest the validity of Richmond's election as it was thought he might have done.3 All members who transferred, or endeavoured to transfer from the Council to the House of Representatives during the period 1854-75 were of ministerial rank and it is scarcely surprising that only one experienced any difficulty in making the change. But the movement does serve to emphasize that, for the politically ambitious, the lower house immediately became the essential forum of legislative activity. In this sense there is obviously much to be 1 2 3

If a member resigned more than once, only the first occasion has been counted. New Zealand Government Gazette, 24 April 1866. Cf. Erratum Ibid., 26 April. Richmond-Atkinson Papers, Vol. II, p. 210. A. S. Atkinson to C. W. Richmond, 9 May 1866.

54

WHY THE SYSTEM

FAILED

said for the old House of Lords rule which, before 1963, prevented such transference in the United Kingdom. If appointments to the New Zealand Legislative Council had involved such a permanent disqualification it is probable that the quality and prestige of that Chamber would have received an important boost in its early years. As it was, its use as a parliamentary pied à terre by its most outstanding members proved particularly unfortunate, occurring, as it did, at the period when it needed most to build up prestige. Resignations in favour of provincial politics were also important in the early years and, once again, they usually involved the more outstanding provincial politicians. In this case, however, there was more of a two-way movement, for if a Councillor resigned to concentrate upon provincial politics he might well return to the Chamber later if he was successful. The abolition of the provinces, and the tendency for the initial age of appointment to rise,* greatly reduced movement away from the Council in the period 1876-91. In any case, Sir George Grey's objections to the use of the upper house as 'a sort of rope-dancing saloon, to which members could go up and down as it suited their convenience',5 met with much approval even if his attempt to block Hall's resignation in 1879 was unsuccessful. A feature of the period 1854-75 was the low percentage (6.69 per cent) of members who left the Chamber because of ill health, oldage or death. This was largely a reflection of the young age structure and the rapid turnover of personnel. Of the three men who died in office before 1875, H. J. Coote was aged 48, J. Hawdon was aged 57 and J. P. Taylor was 63. Similarly, P. Peacocke, whose membership lapsed, and J. Maclean and Sir Samuel Osborne Gibbes, who resigned through ill-health, were aged 52, 54 and 60 respectively. There was a marked tendency for the large landholders, in particular, to return to Britain. Clearly, some of these appointments, particularly some of those between 1865 and 1875, should not have been made, for of ten members who resigned for this reason at this time, four had served for less than two years and one for six months only. Another, J. D. Tetley, disappeared,6 having only attended the Council once in 1867, when he had been summoned to appear by the premier and when his vote saved the Stafford Government from impending defeat in the Public Debts Bill. 4 5 8

See Appendix V. N.Z.P.D., 1879, Vol. 32, p. 402. Grey quoted by Stewart. Wellington Independent, 26 June 1869.

WHY THE SYSTEM FAILED

55

In the period 1876-91, the death-rate of Councillors rose spectacularly from the 6.69 per cent of the previous two decades to 64.3 per cent. This change reflected to some extent a reversal of the earlier factors, particularly a decline in the propensity of members to return to England, but it was also in part a result of the growing tendency to appoint much older men. Disqualification accounted for a steady drain of personnel in both periods. It was customary to provide, in colonial Constitution Acts, means whereby life members might resign their seats, together with regulations governing the disqualification of members for absence, bankruptcy, insolvency, public default, treason, conviction for felony or any infamous crime. Insanity was not deemed a disqualification. Although rumours of bankruptcy had attended the departure of J. D. Tetley, the provisions affecting leave of absence were the ones that were mainly invoked in the period 1854-91. Under these, seventeen Councillors were disqualified, five being members who had already been reappointed to the Council. These disqualifications, coupled with the general laxness of the regulations regarding absence, clearly had a harmful effect on the prestige of the Council. Vogel suggested to a Select Committee in 1885 that the upper house had failed to command the confidence it might do because the idea seemed to prevail that the position of a Legislative Councillor conferred a special sort of distinction rather than entailing a duty. He averred, as a consequence, that there should be more stringent rules concerning absence.7 In many instances, disqualification arose merely from failure to tender a formal resignation, as in the case of Bellairs and Petre. But, over the period as a whole, there was a decline in the number of seats lapsing whilst a member was out of the country, and an increase in those due to old or infirm Councillors either forgetting or failing to resign. In addition, there was always the danger of disqualification by inadvertence. This was emphasized in 1887 when it was alleged that several members of the Council, including the Attorney-General, were all technically disqualified.8 It was pointed out that section 36 of the Constitution Act had previously been ambiguous, but that any uncertainty had been set at rest by a decision of the Judicial Committee of the Privy Council in the case Attorney-General v. Gibbon. In this case a member of the 7

A-J.L.C., 1885. Minutes of Select Committee upon Legislative Council reform, No. 1, p. 13. The regulations were tightened subsequently by the Legislative Council Act 1891 and New Zealand Statutes 1920, No. 31. s N.Z.P.D., 1887, Vol. 59, p. 609 and 788. Samuel.

56

WHY THE SYSTEM

FAILED

Legislative Council of Queensland had been absent during three sessions, but had obtained leave of absence for a period covering the whole of the first session and a part of the second. The question arose whether his seat was vacated after he had been absent for the whole of three sessions, including one session and part of another not included in the period for which he had permission. The Legislative Council had decided that it was not, but an appeal against the decision by the Attorney-General to the Privy Council had been upheld.9 The Constitution Acts of Queensland and New Zealand were almost identical in their provisions concerning leave and the question was raised as to how this decision affected New Zealand. After some prevarication and a delay of seven months, the matter was eventually referred to the Council itself at a time when the Governor was out of the country, a course which led to some questioning of the Deputy-Governor's powers in the matter.10 After further delay, a Select Committee of the Council decided that four seats still in doubt were not vacant. Although largely a technical matter, this incident, and the controversial manner hi which it was handled, hardly redounded to the credit of the Council. TABLE I Analysis of Disqualification for Absence 1854-91

After first appointment only Including reappointees

Absence Overseas

Age or Ill-health

3 4

6 6

Inadvertence 1 4

No data 2 3

Prior to the establishment of responsible government in New Zealand, the role of officials in the legislature had been a matter of concern both in Great Britain and in the colony, but, despite an expectation that some, at least, would be retained in the upper house, Pakington had made no attempt to retain ex-officials hi the assembly.11 Similarly, Sir George Grey, surprisingly, made little attempt to pack the Council with his official cronies. There was, in fact, a marked undercurrent of feeling against paid officials holding posts hi the General Assembly. In 1862 a member of the House of Representatives was highly critical of the appointment to the Council of government officials such as resident magistrates, sheriffs and judges, pointing out that five government officers could easily form a quorum,12 but in the early days it would have been » Law Times, 1887. Vol. LVI, n.s. 239. Report, 23 April. « N.Z.P.D., 1888, Vol. 62, p. 442. Buckley. 11 G.B.P.D., 1852, Vol. 121, col. 126. Howard. 12 N.Z.P.D., 1862, p. 601. Colenso.

WHY THE SYSTEM FAILED

57

impossible to raise a quorum at all on many occasions if there had been no officials present. By 1865, the situation had improved and it was widely felt that it was time for New Zealand to fall into Une with parliamentary practice overseas. Canada, New South Wales, Victoria and Queensland had all adopted disqualification acts, and in the case of the last-named colony at least four-fifths of the Legislative Councillors were required to be non-officials.13 An incident at the end of the 1867 session finally brought matters to a head in New Zealand after Stafford's Public Debts Act came near to defeat in the Council. After voting against the Government, three Councillors received letters from Stafford offering them the choice of keeping their offices or their seats. All resigned, but one member replied that If it be right that no salaried officer of a government should express political opinions differing from those of the Ministry of the day, then I think subordinate officers should not be in either house. Whether or not the public interest may be affected by their exclusion is a subject which might be open to discussion i4 Stafford's attitude at this juncture contrasts with that adopted only three months earlier when he declared: The fact was that with members of the Legislative Council it was of little consequence, as compared with members of that House, whether they were receiving salaries from the public revenues or not. It was an acknowledged fact that no Government could remain in office that did not possess the confidence of that House, and the other branch of the Legislature could really not retain in office for one hour a Government which that House had determined should not remain in office.15 Moreover, Pollen, one of the three recipients of a letter, was reappointed to the Council six months later when Stafford needed his aid there, only to be disqualified by the Disqualification Act of 1870. One, or possibly both, of the others, it was alleged, were promised reappointment when they eventually shed their offices, and although Strode may have unsuccessfully brought this promise to the notice of successive governments, neither of the two was «appointed.16 Stafford later argued in his own defence that the 13 14

A. C. V. Melbourne, op. cit., pp. 445-6. Stafford Papers. Pollen to Stafford, 29 November 1867. « N.Z.P.D., 1867, Vol. 1, Pt. 1, p. 187, Stafford. « Ibid., 1885, Vol. 51, p. 431. McLean.

58

WHY THE SYSTEM

FAILED

support of government officers was not of much weight but that their opposition might be very damaging.17 Architect of the Disqualification Act of 1858, which applied only to the House of Representatives, Stafford introduced a stringent successor to it in 1868 which would have excluded a wide range of officials including all provincial office holders with the exception of superintendents.18 This Bill was withdrawn in September 1868 after Stafford had found it necessary to reappoint Daniel Pollen to the Council. Pollen was subsequently disqualified by a bill passed in 1870 by the Fox Ministry. This 1870 Disqualification Act provided, inter alia, that paid office holders under a government were incapable of being summoned to the Legislative Council or elected to the House of Representatives. Exceptions to this rule were provided for members of the Executive Council, the Secretary for Crown Lands, militia and other officers not receiving permanent annual salaries, Speakers and Chairmen of Committees. The Act also included persons concerned or interested in contracts affecting the Public Service of the colony.19 Councillors resigning for reasons other than those discussed above included Gilfillan, who sacrificed his seat in 1861 so that Fox could appoint Sewell to the Council and ministry; Whitaker, who resigned because of his opposition to the Weld government policies; and C. J. Pharazyn, who resigned in order to allow his son to succeed him—the nearest the Council ever approached to the hereditary principle. The importance of resignations is to be seen in the extent to which they facilitated changes in the composition of the Legislative Council. The number and rapidity of resignations undermined any sense of permanency, made a mockery of any hopes of using appointment as a reward for distinguished service to the state, upset any geographical balance, generally diminished any respect for the power or potentiality of the Chamber and opened the way to the political manipulation of appointments for purposes of patronage. The speed of change also makes nonsense of the usually accepted view that the Council atrophied as its members grew old.20 Of the 42 members of the Council in 1876, nineteen had been appointed between 1870 and 1874, nineteen more between 1860 and 1869, two between 1855 and 1859, and only two were original appointees. If the Council did become more conservative in outlook in the " Ibid., 1868, Vol. 2, p. 571. Stafford. Ibid., pp. 86 and 558. Stafford. " New Zealand Statutes, 1870, No. 17. 20 Leicester Webb, Government in New Zealand, p. 39.

18

WHY THE SYSTEM FAILED

59

1870s, it was due more to the higher age of new appointees than to Councillors clinging to their seats. After 1875, the rate of turnover declined, e.g. 1853-75 Average period of service: 12.23 years Average rate of appointment: 4.23 members per year 1876-91 Average period of service: 14.57 years Average rate of appointment: 2.00 members per year But the general principle upon which the Council was based, that a sufficiently conservative element was to be built up by providing stability of tenure, had already been undermined. Thus, when Councillors sought to assert themselves they had no secure basis of public respect to support them and in the last resort, however laudable their aims might be, such lack of respect was to prove fatal. Worse, in the late 1870s and early '80s, when the Council was swollen in size, partly on account of party patronage, its image became even less popular, particularly as appointments continued well into a period of economic recession when the size of the lower house was reduced. Thus, nomineeism was merely tolerated, never popular. Indeed, the New Zealand ethos was antipathetic to such a system. Nevertheless, grudging acceptance might have been won in the early formative years of the 1860s but for the fact that the Legislative Council presented an unfavourable image. Its shifting population, its apparent preoccupation with its own problems (particularly the attempts to re-establish a limit to its membership), the squabble over its powers, and the general lack of favourable publicity, all seriously prejudiced its general standing at a critical time in its development. If it counted for little that the Council performed many unspectacular tasks, it did do some very solid work. What mattered was that it failed to capture the popular imagination, so that, when it did find itself openly opposing a government of the day in the 1870s, it was only too easy to attribute its actions to narrow self-seeking motives. Elected governments did not hesistate to use it as a political 'Aunt Sally' and the Council, because of the suspect nature of its method of appointment, was rarely able to make any effective reply. Such an institution must depend upon public prestige for its effectiveness, as the House of Lords does, but these paid appointees, who differed little from members of the lower house and few of whom had any major claim to personal distinction, either failed to remain long enough

60

WHY THE SYSTEM

FAILED

to build up the prestige of their Chamber or found that any attempt to do so was too easily parried by the government of the day. Moreover, the lower house, acutely conscious of its electoral status, never took kindly to suggestions from its nominated peers. After the establishment of triennial elections for the lower house in 1879, the life-appointed upper house seemed even more anachronistic and the discontinuance of the system was merely a matter of time. In the public imagination the attempt to use it as a last ditch defence against the Liberals in the early 1890s proved what had always been believed, that it was narrow, reactionary and obstructive in its outlook, and opposed to the true interests of the people. Nevertheless, throughout this period it is difficult to avoid the conclusion that the Legislative Council was more sinned against than sinning and that it was the nomination system which made this possible. A hand-picked upper chamber of men too distinguished to want to bother with the hurly burly of elections has always had an attraction for constitution makers but such schemes have rarely proved successful for they demand a higher level of altruism than most appointing politicians possess. As one of the longest serving and most distinguished members of the Council declared in 1885: It appears to me that the nomination system does open the door to jobbery . . . it is certainly open to a great deal of favouritism. Ministers may, in point of fact, make appointments as compensation for public or private assistance given to them, or to be rendered, or they may make it for the purpose of pensioning off some gentleman whom they may wish to get out of the way, or to give an increase of income to a needy adherent: indeed, they may make the appointments from a number of motives of various kinds and descriptions; but there is nothing I am aware of which secures that the appointments shall be made from the motive of doing that which, under all circumstances, would be the best for the colony ... 2 1 21 N.Z.P.D., 1885, Vol. 53, p. 257. Whitaker.

6 'Seven Year Itch'

In the general election of 1890 both political parties had favoured reform of the Legislative Council and it was widely agreed that that body was the ailing part of the constitution. But the steps taken by the new Liberal Government when it came to power were modest. The unpopular system of nomination was retained and tenure was merely reduced from office for life to a period of seven years. This was a minimal reform designed less to strengthen the upper house than to give the Government some control over its nominees. As such, it was hardly a reform at all and it is not surprising that the life-nominated body quickly bowed to the wishes of the new Government which even left the existing members undisturbed in their tenure.1 In tendering his first batch of nominees, the Prime Minister, John Ballance, still faced great difficulties. Eventually granted twelve places by the Governor, his effective choice was reduced to eight when four seats were allotted to Labour representatives as the price of their political support. The eight remaining seats had to suffice to reward old party stalwarts, meet other claims upon patronage,2 particularly those of Liberal newspaper editors, still the general clamour for appointments and, at the same time, provide an effective bridgehead of able and experienced personnel in the Council. Not surprisingly, five of the eight Liberal appointees were ex-parliamentarians, including an ex-minister and an ex-whip. Of 1

2

There were only three divisions on the Bill in the Council and they were all taken in committee. A motion that the Bill be read that day six months was withdrawn at the third reading. N.Z.P.D., 1891, Vol. 71, p. 468. Mantell. e.g. Ballance Papers, M.S. 25 Folder 10, no. 285, 293; folder 12, no. 364-7; folder 13, no. 430-1; folder 14, no. 446, 478; folder 15, no. 512, 522.

62

'THE SEVEN YEAR ITCH'

the remainder, two were newspaper editors and one a lawyer. These appointments were generally well received, but public attention concentrated upon the four Labour appointees. Of these, two were compositors, one a shop-keeper and the fourth a boilermaker and they were selected, it was claimed, by the several Trades and Labour Councils in the four chief cities.3 The Governor, Lord Onslow, later told a now famous story purporting to describe how the boilermaker was at the bottom of a boiler when the telegram announcing his 'elevation' arrived. At first, he was said to have refused to believe that a telegram could be for him as he had never received one before, but on finally being convinced he shouted, 'Well, shove it through the hole at the top.' In such circumstances, or so it was claimed, he first became aware of his right in the future to the distinction of being addressed as 'Honourable' throughout the British Empire.4 Reaction to the appointments was mixed, but few serious objections were raised. Once again moderation had prevailed. A correspondent writing to one journal even had occasion to object that one of the Labour representatives 'is that circus creature called a conservative working man—a Unionist of the old stamp.'6 Apart from the temporary interest created, therefore, the appointment of Labour representatives was to have little effect on the fortunes of the Council. Much more scathing criticism was to be directed against the nominations made by Ballance's successor as premier, Richard Seddon, with his unabashed emphasis on patronage. The most important feature of the nominations made by the Seddon Ministry was the inclusion of a high proportion of defeated candidates and unknowns. Ironically, the principle of appointing defeated candidates had been ably defended by Ballance: Look at the history of Greece. Every man of eminence almost, at some particular period of his life, was ostracized from public life and driven into banishment. Aristides, Themistocles, and a whole host of them—almost every man who was eminent—were in turn ostracized . . . Any one may lose an election; but would that be a reason why he should not be appointed to any public position?6 3

N.Z. Herald, 17 October 1892. Also Norwood Young, The Labour Party in New Zealand", in National Review, July 1892. Lord Onslow, State Socialism, p. 8. This story was, however, later checked by William Pember Reeves who claimed that it was inaccurate in a number of details, cf. Evening Post, 4 May 1910. 5 LyHelton Times, 19 October 1892. « N.Z.P.D., 1891, Vol. 74, p. 188. Ballance. 4

•THE SEVEN YEAR ITCH'

63

Seddon, however, was to carry the doctrine to extremes, nominating men far from eminent, who had been rejected not once, but up to four times at the polls, with the result that the Council fell still lower in public esteem. The principal objections to these appointments were that they were made as rewards for party services and that the bulk of them were 'party hacks and henchmen'.7 By the Payment of Members Act 1892, the honorarium (which had made the form of appointment more objectionable) was made annual and fixed at £150 (House of Representatives £300); it had hitherto been voted by the session. Subsequently it was raised in 1904 to £200. On Seddon's behalf it must be said that the principle of nominating ex-members of the House of Representatives was now long established. He was criticized for failing to nominate men like Hall, Rolleston and Saunders, but to have done so would have further strengthened the still strong opposition in the Council. A seat was offered to Sir George Grey in 1895 but refused.8 Even so, some of the appointments were decidedly suspect. There were, for example, doubts about the selection of Francis Arkwright, a descendant of the inventor and an ex-member of the House of Commons who had previously been defeated as a parliamentary candidate in New Zealand. Arwkright's appointment to the Council was, it was suggested, primarily to prevent his contesting the next election at Rangitikei against a government candidate.9 Three defeated candidates were appointed in 1897, part of the justification for the additional nominations being the rejection by the Council of five Government policy bills in 1896.10 Yet not one of the five bills involved—the Alcoholic Liquors Sales Control Act Amendment Bill, Contagious Diseases Bill, Eight Hours, Private Benefit Societies and Usury Prevention Bills—passed the House of Representatives in either of the two succeeding sessions. Three more appointments were made in 1898 following the Council's rejection of three more important Government Bills in that year. In the case of one of these bills, dealing with Old Age Pensions, the Council had been careful to point out that it was not opposed to the principle of the measure, but believed it to be crude and unworkable. As it was classed as a money bill and could not be amended by the Council, there was no alternative but to reject it. Once again, however, the 7

Press, 14 December 1895. s9 Ibid. O.D.T., 14 December 1895. Cf. Ballance Papers, Nos. 589-90. Stevens to Ballance, 25 May 1892. 10 A-J, 1897, Session II, A-lb, No. 1.

64

-THE SEVEN YEAR ITCH'

nature of the appointments, and the fact that this time the rejected legislation was passed without hindrance in the following year, lent further colour to the view that the Council was being 'systematically stuffed in the interests of party'.11 Even so, it was not until 1899 that the Liberals finally gained an overall majority in that body. In that year, the terms of the first batch of Councillors appointed for seven years fell due for renewal, shortly before a general election. Prior to the opening of the session, the Governor had informed the Secretary of State that, although he would do his utmost to avoid conflict and would agree at once to the reappointment of any outgoing Councillors, he would endeavour to postpone the addition of any new members until after the election.12 Two months later, three more new appointments were made, two of them again being defeated parliamentary candidates. In response to a no-confidence motion in which he was criticized for the appointment of newspaper proprietors who served him, of deadbeat politicians who withdrew in contested elections, and of defeated candidates, Seddon had no real defence to offer other than the tu quoque argument based upon the appointments of 1891. Fourteen new appointments, made between 1900 and 1904, included the Maori King, an ex-cabinet minister, a brewer—appointed to celebrate the jubilee of the Province of Canterbury—and two obscure personal friends of Seddon. One journal reported that a Dr Morice, whose son was married to one of Seddon's daughters, had been offered a position and declined. Thereupon, the place was offered to James Holmes, an old friend of Seddon's who had taken little part in public activities and, at the age of 71, was old and enfeebled.13 Francis Trask, another West Coast man appointed, also probably owed his summons exclusively to friendship with Seddon, whilst a third appointee, Alfred Baldey—who may have been suggested by Joseph Ward, the Colonial Secretary, since he was a director of J. G. Ward and Company—caused the Christchurch Press to report, 'Now everybody is asking, who is Mr Baldey, MLC?'14 This blatant misuse of the powers of patronage finally provoked all sections of society into protest, whereupon Seddon, who had first tried to blame the 'rabid and intolerant opposition section of 11 12

Press, 22 June 1898. C.O. 209/259, Ranfurly to Chamberlain (Confidential), 8 April 1899. is O.D.T., 18 April 1902. « Press, 18 March 1903.

'THE SEVEN YEAR ITCH'

65

Prohibitionists', suddenly made a volte-face and declared himself in favour of abolition of the Council, less than four years after claiming that the Council had been brought almost to a 'state of perfection'.15 Increasingly reluctant to defend his own selections, he made only one further nomination in his last two years of office, thereby confirming the public's impression of the bankruptcy of the system as he had operated it. Between 1904, when Seddon ceased to appoint, and 1907, when the first large group was nominated by his successor Ward, the Legislative Council decreased in size by approximately 25 per cent, and, of the 34 members at the beginning of 1907, nine were old life members and eight virtually nominal members. In making further appointments, Ward laid stress on geographical and vocational distribution, only to be attacked by the Leader of the Opposition for appointing men lacking in parliamentary experience. Controversy centred about the appointment of John Barr of Christchurch, who had lived in the colony for less than five years. Ward, admitting that the Government were ignorant of this fact, denied that they had consulted anyone about the appointment 'in the ordinary sense', yet claimed that they had simply been assured from time to time that Barr would be a suitable representative of the workers.16 There were so many possible variables in the selection of any member of the Legislative Council that criticism was always difficult to avoid. Despite this, the Ward Ministry did make some nominations which met with approval and four of the nominees, including the controversial Barr, were reappointed by the succeeding Reform Government. Having temporarily stilled the shrill criticism of appointments, Ward and his Ministry made only two more nominations during their term, both, significantly enough, ex-ministers with long service records in the House of Representatives. In 1912, however, during a brief four months of office, the Mackenzie Ministry added three more members, each well qualified by long public service. It would also have added a further three more actively partisan gentlemen but for the refusal of the Governor to appoint.17 This was probably the last time that a Governor interfered in the matter of appointments. The nominations made by the Ward Ministry in 1907 had indicated that reform of the Council was not, after all, imminent. The « N.ZP.D., 1899, Vol. 106, p. 345, quoted by Taylor. « Ibid., 1907, Vol. 139, p. 286. Ward. " C.O. 209/275, Islington to Harcourt, 13 July 1912. (Secret)

66

'THE SEVEN YEAR ITCH'

Reform Ministry, in 1912, found itself in the difficult position of having to make appointments that signified that it was. In the first instance it succeeded brilliantly by simply nominating F. H. Dillon Bell, the architect of reform, to the leadership of the Council with the portfolios of Internal Affairs and Immigration. The Liberal dominated Council co-operated with the lone representative of the new Government, a majority refusing only to pass the Legislative Council Reform Bill. This, however, opened the way for a group of appointments before Parliament reassembled in the following year. Again restraint remained the keynote, for although Bell could only rely on seven of the 38 Councillors to support his policy of reform, only five additional members were nominated. Three were leading party members, and the remainder, made up of non-Reform party supporters, constituted an important departure from previous practice. But the Government appears to have unwittingly played into the hands of the opposition, for it was rapidly discovered that four of the six appointees opposed reform and it soon became clear that the Reform party itself was divided on the issue. In 1914, the Government abandoned the idea that they could carry a reform bill in the Council as it was then constituted and made a further nine appointments plus two reappointments. The old allegations were quickly renewed, together with charges of duplicity and of having used appointments to induce competing Reform party candidates to withdraw in the Bay of Islands and Palmerston North.18 The appointments of 1914 ensured that the Legislative Council Bill became law, although two more nominations after the bill had been passed struck an odd note.19 Despite the passing of this reform bill, the war and the formation of the coalition Government of 1915 meant a postponement of reform and a cessation of appointments and reappointments, so that by 1918 membership had dwindled to twenty. Of these, one member, first appointed in 1861, was 90 years old, three were in their eighties, and there were rarely more than fourteen or fifteen members in attendance. Although further appointments were expected, no one anticipated the virtual doubling of the existing membership which took place, when each party in the coalition Government nominated nine new members. If they were intended to improve the efficiency of the Council, the appointments should have been made much earlier and a smaller number would have 18 19

For the constitutional arguments against appointments for party advantage see below, Chapter 12, pp. 146-7. For details of the 1914 Legislative Council Reform Bill see Chapter 14.

'THE SEVEN YEAR ITCH'

67

sufficed. Once again patronage rather than the efficiency of the upper house was obviously the key and already it was becoming clear that ideas of reform were becoming less attractive to the Reform Party. The possibilities of patronage offered by the Legislative Council proved an irresistible bait. The old pattern was quickly re-established. Three appointments in 1919 recognized service in the House of Representatives and six more in the following year combined a group of long-service politicians with a number of unknowns.20 Five more appointments in 1923, and another three in 1924, confirmed the widespread suspicion that Massey was unwilling to surrender this useful power of patronage. All five of the 1923 appointees had retired from the House of Representatives in 1922, and two of those appointed in 1924 had been defeated in the general election of 1922. Thus, when Massey died in 1925, his Reform Government had not only not implemented the reform on the statute book, but in thirteen years of office, including the four years of National coalition, had been responsible for recommending 51 new appointments. The total number of appointments by Liberal governments, 1892-1912, had amounted to 57, an average annual rate of 2.71. The appointment rate of governments of which Massey was premier, 1912-25, was 3.31, or, if the National Ministry figures are omitted, 4.22. It is not surprising, therefore, that appointments and reappointments together constituted such a large and tempting volume of political patronage. Seven of the nine nominations made by the Coates ministry were mainly rewards for long parliamentary service, although they did include two distinguished politicians. The appointment of Sir Robert Stout, the old opponent of the Legislative Council, at the age of 82, added aged lustre to its ranks and he played an active role for his first two years. The appointments of J. A. Hanan and Sir James Allen, together with the Ward Ministry's appointment of T. K. Sidey as Attorney-General and Minister of Justice in 1928, also boosted the prestige of the Chamber. In the case of the latter appointment, however, the gain was somewhat gratuitous for it was after his retirement from active politics, or so he thought, that Sidey attained cabinet rank with the unexpected victory of Sir Joseph Ward and the United Party in 1928. In 1930, when the Ministry now led by Forbes appointed six new Councillors, one newspaper commented: 20

Two of these appointments, Nerheny and Smith, were reputedly in fulfilment of an arrangement entered into by the leader of the National Government prior to its dissolution. N.Z. Times, 30 June 1920.

68

'THE SEVEN YEAR ITCH'

It is noticeable, however, that the government has scarcely looked to left or right, but has looked down the line of its party supporters for suitable new Councillors .. . 2 1 From then on, apart from the appointment of an ex-High Commissioner, Sir James Parr, as leader of the Council (without a place in the cabinet) in 1931, the Council was allowed to dwindle away during the depression. In part this was due to Forbes, who believed that the work of the Chamber could quite effectively be carried out by a smaller number of members, but public opinion was also strongly against further appointments. One member of the House of Representatives asked that M.P.s should have the opportunity of discussing any further appointments and referred to 'the deep public resentment against any distribution of political favours at the expense of taxpayers at a time when thousands are on the bread-line . . . >22 The Legislative Council was seen merely as a wasteful extravagance. By 1934, the Council was little more than a skeleton of its former self because of deaths, resignations and the lack of reappointments since 1930. The membership of nineteen was the lowest since 1860, and, with two Councillors' terms of appointment about to expire, it was close to sinking to seventeen. Fourteen additions in 1934 offered the possibility of more efficient operation, but did little to improve the Council's public image even though two Labour appointees were included. Twenty-three years after the Reform party had come to power pledged to institute an elected upper house, little had changed. Before the advent of the Labour government in 1935, the last great problem of transition involving the Legislative Council had occurred when a new Reform government faced an overwhelmingly Liberal majority in 1912. On that occasion Liberal Councillors had not hesitated to co-operate with the new Government except in the question of Legislative Council reform, an issue which, in any case, tended to cut across party Unes. Nevertheless, the Government had still taken two years to achieve a majority for its Bill. Fortunately, in 1935, the outgoing premier, Forbes, refused to make further appointments, even before what looked like being a losing fight, so that the problem of transition was greatly eased. The lesson of 1891 had been well learned. The Savage Ministry promptly made fourteen further appointments early in 1936, all 21

Press, 12 June 1930. An exception was Mark Fagan, a union leader prominently associated with the Labour Party. 22 N.Z.P.D., 1932, Vol. 234, p. 232. StaUworthy.

'THE SEVEN YEAR ITCH'

69

but one of whom were Labour supporters, thereby increasing the membership of the Council to 40, of whom sixteen were now Labour Party supporters. These appointments were almost exclusively rewards for party services and there was no question of appointees being pledged to support a policy of reform or abolition of the Chamber; although, ironically for a party which formally supported abolition, one appointee, James McCullough, only accepted appointment on condition that he be allowed to continue to advocate the cause.23 Six more appointments in 1937 caused one newspaper to comment upon the 'relative obscurity'24 of some of the party supporters thus rewarded, but the inevitable regimen of the 'spoils to the victor' policy proved sufficient sanction. Within the party, caucus by a unanimous decision had yielded to the Prime Minister the right to select his own cabinet, and similarly he had full control of appointments to the Legislative Council.25 The period of Labour hegemony until 1949 saw the Council become less and less active as the position of Councillor became more and more of a sinecure awarded to loyal party functionaries in lieu of a pension. The only innovation was the appointment of two female Councillors in 1946. The first women had been elected to the House of Representatives in 1933 and female membership of the Council had been mooted at least as early as 1892 and agreed to in principle in Section 18 of the Legislature Bill 1914. It was not, however, until 1941 that a clause authorizing the change was included in a Statutes Amendment Bill after a member of the House of Representatives, Mrs M. M. Dreaver, had dropped a similar proposal in favour of the Government's promise to take the matter up. Subsequently, in 1946, Mrs Dreaver became one of the first two women to be appointed following her defeat at the general election of that year. Thus the Labour Government simply converted what had been a conservative vested interest into a Labour vested interest. Most members of the Council, seldom well known outside its walls, were now obscure, and any influence that they might have exercized through the counsels of the party were minimized by withdrawal of the caucus vote. The long decline continued and, more and more, New Zealand's Legislative Council became largely a pensioning-off place for party supporters, lacking form or function. 2» Paul Papers, J. A. McCullough to J. T. Paul, 26 July 1937. 2* O.D.T., 24 September 1937. 25 See below, Chapter 11, pp. 133-4.

70

'THE SEVEN YEAR ITCH'

Once again under the system of seven year appointments, although the representation of various areas remained relatively constant, there was little attempt to invest the upper house with any geographical significance in the representation of different areas. Agitation for the appointment of local representatives, a practice which may be said to find its origin in the year 1874 when C. C. Bowen was appointed for 'Christchurch' rather than for 'Canterbury', reached unprecedented heights during the Seddon administration of 1893-1906. But this was essentially clamour for spoils and much less was heard of this particular form of claim thereafter. Although there appears to have been only a tenuous connection between the number of seats and the total population of the provinces (see Table J), a rough quota does appear to have operated for the two main islands of the country. TABLE J Examples of Geographical Representation in selected years 1892-1950 1907 1915 1918 1936 1945 Total Avg. Auckland 7 (176) 7 (290) 7 (309) 10 (547) 9 (641) 40 20.83 Wellington 8 (141) 12 (214) 9 (232) 8 (316) 13 (349) 50 26.04 Taranaki 4 (38) 2 (57) 2 (56) 3 (78) — (77) 11 5.73 Nelson 2 (38) 1 (52) — (43) 2 (57) 2 (57) 7 3.65 Canterbury 7 (143) 5 (187) 6 (182) 6 (234) 4 (247) 28 14.59 Otago 8 (125) 7 (142) 7 (132) 4 (151) 3 (144) 29 15.10 Hawke's Bay 4 (35) 2 (53) 2 (54) 2 (77) 1 (79) 11 5.73 Marlborough 1 (13) 1 (17) 1 (17) 1 (19) — (21) 4 2.08 Southland — (48) — (64) 2 (60) 1 (72) 2 (70) 5 2.60 Westland 2 (15) — (17) 2 (16) 1 (19) 2 (17) 7 3.65 43 37 38 38 36 192 100.00 (Population is shown in brackets to the nearest 1,000)

If the seats allotted in Table J are ranked according to the island represented, the result is as follows: Year 1907 1915 1918 1936 1945

Number of Seats North Island South 23 23 20 23 23

Island 20 14 18 15 13

There was, however, no attempt to establish parity of representation for the two islands in the Legislative Council as a means of countering the growing proportionate share of representation exercised in the House of Representatives by the more populous North Island. The opportunity for the Legislative Council to become representative of geographical areas, therefore, was wasted under both systems of tenure.

'THE SEVEN YEAR ITCH'

71

TABLE K Occupations of Members appointed to the Legislative Council by Government appointing Law

Legend K-I-gj Liberal Governments to*3 (1892-1912)

Professional

bftftjjj Reform Governments «"=2J (1912-1935) Labour Governments (1936-1949)

Commerce

Trade

Manufacturing

Journalism

Farming

Workers and T.U. secretaries No Data

%

0

5

10

IS

20

25

30

35

40

72

'THE SEVEN YEAR ITCH'

From 1892 onwards, however, clear changes did begin to take place in the composition of the Council. The dominance of the large farmers quickly broke down because of illness and old age amongst existing Councillors and there was a dramatic decline in their representation, from 40 per cent of the membership between 1876 and 1891, to 17.54 per cent between 1892 and 1935. Indeed, these figures probably understate the decline for they deal only with those members who could be classed primarily as farmers. There was also a shift away from the Law, Professional and Commercial groups, which collectively declined from 46.68 per cent of all appointees between 1876 and 1891 to 33.34 per cent of all appointments in the period immediately following, 1892-1910. More emphasis was placed on appointments from trade and journalism, and, at the same time, working men and trade union secretaries gained representation for the first time. But how far were the marked changes in the composition of the Council from 1892 onwards due simply to the change in the length of tenure? Clearly the attitude of successive governments was the key factor in determining the nature of the personnel appointed but such change would have occurred without any alteration of the system of tenure. An analysis of the vacancies which occurred reveals some of the limitations of the new system. With the institutionalization of the turnover of membership the pattern of vacancies quickly changed and most of the vacancies which did occur were divided almost equally between members whose term of office ended and was not renewed, and members who died in office. Only eleven members resigned, of a total membership of 174 between 1892 and 1949, and only one member, W. Pere, lost his seat through absence. Of those who resigned, six vacated their seats because of age or ill health, four to stand for the House of Representatives (two of these, Sir John Findlay and J. T. Paul, were defeated) and one, Sir Christopher James Parr, to return to the High Commissionership in London. Obviously the restriction of the tenure to seven years in 1891 reduced the need for many resignations, but the death of nearly half the Councillors whilst still in office underlines the more static character of the upper house. It had become an old man's home.26 The reduction of tenure from life to seven years merely reduced the average period of membership of the Council from 13.4 years for Ufe appointees to 10.02 years for those appointed for seven 26

For an analysis of seats which fell vacant because of failure to renew seven-year tenures of office, see Appendix III.

•THE SEVEN YEAR ITCH'

73

years, and the average rate of appointment, 3.11 per annum for life members, increased only slightly to 3.7 per annum for sevenyear appointees. In the case of age, there was no marked change between Councillors appointed between, for example, 1876 and 1891, and 1892 and 1910. The same is true for education, although certain clear changes did take place in the occupational rankings.27 On the other hand, the seven-year system, as such, contributed little to the alteration in the occupational structure for, during the period 1892-1910, no less than 54 places became available by death, resignation or disqualification for absence (40 by death; 13 by resignation; 1 disqualification), compared with six made available by failure to reappoint after a Councillor's term had expired. There were, therefore, sufficient places available to permit the changes achieved, without any recourse to the seven-year system. But the reform had been less concerned with a major reconstruction of the Council than with ensuring future political control. Ballance had stated quite plainly in 1891 : Our difficulty in connection with the life tenure is that, even when we put Liberal members there on a life tenure, we find that, when they realise that they cannot be disturbed for the term of their natural life, in the course of four or five years they themselves become Conservative, and we have no control over them 28

At the same time the reform obviously allowed the political colour of the Council to be varied more in accord with the change of governments, although it could not be foreseen that the periods between such changes would be so protracted. Between 1891 and 1950, 62 of 174 members appointed for seven years failed to have their terms renewed. Many of these obviously used the expiry of their term as a convenient date on which to retire and merely let it be known, perhaps quite informally, that they would not be available for reappointment. Others retired because of illness or absence from the colony, and in some cases appointments obviously were not renewed for political or personal reasons. The ad hoc arrangements employed make it difficult to indicate precise causes, but some general trends can be established. It is useful to distinguish between members who served for one term only and those who were members for longer periods. The proportion of those whose tenure was not renewed after one term was significantly higher. This could indicate a number of things 27 See Appendix IV. " N.Z.P.D., 1891, Vol. 74, p. 186. Ballance.

74

'THE SEVEN YEAR ITCH'

ranging from policy, through a continuing tendency on the part of members to become conservative, to a reflection of the great pressure for office, but the key factor appears to have been age. Of 37 members whose first term of office was not renewed, eight were over 80 years old and fourteen were between 70 and 79. Similarly, in the case of non-renewal after two or more terms of office, age is again clearly an important factor in thirteen nonreappointments out of 24, and it seems reasonable to conclude that, in well over 50 per cent of non-renewals, age or, even more important, decrepitude, was the key factor. Of the remainder, many members could have been excluded for political reasons although, again, the nature of these reasons might vary considerably. It is necessary, for example, to distinguish between those Councillors rejected by the party that originally appointed them and those rejected after a change of government. Sackings for defection were rare and sometimes difficult to establish clearly, as in the case of the non-reappointment in 1899 of three of the Liberal 'twelve apostles' first appointed in 1891. It seems probable that J. MacGregor, W. McCullough and E. Richardson were, in effect, sacked by the Premier for voting against the Government.29 MacGregor, however, apparently let it be known that he would not accept reappointment because of criticism by a cabinet member which suggested that it was his duty to vote for the Government which appointed him.30 An examination of MacGregor's voting record shows that for the last three years of his term he was a consistent opponent of that government. In a total of seventeen major divisions he supported the Government twice and opposed it on fifteen occasions. In 1912, the Attorney-General openly admitted that if a Councillor wished to be reappointed at the end of his term he had to do exactly as he was told,31 and there was a rumour current two years earlier that a system was operating by which members of the Legislative Council contributed a portion, or the whole, of their honorarium to the party funds controlled by the Ministry.32 Two Councillors failed to gain reappointment in 1905 after the Premier, Seddon, had openly criticized them. No doubt principally a pre-election manoeuvre, this 'sacrifice' met with some success; one journal, devoting a leading article to the decision, judged it 'distinctly reasonable' and the first suggestion of 'sin2» O.D.T., 18 October 1899, cf. N.Z.P.D., 1912, Vol. 159, p. 501. Ormond. so Scholefield, D.N.Z.B., Vol. II. 31 N.Z.P.D., 1912, Vol. 159, p. 244. Herdman quoted by Jones. a* Ibid., 1910, Vol. 149, p. 737. Taylor.

'THE SEVEN YEAR ITCH' 33

75

cerity'. Similarly, 26 years later, two members were not reappointed by the Forbes government when great stress was being laid upon its economy drive.34 A Councillor might also fail to be reappointed because of neglect of duty, although this was rather rare in the casual atmosphere of the Council. One example was the Maori King Mahuta Tawhiao Potatau Te Wherowhero, appointed by Seddon in 1903. For the latter part of his term he took no part at all in the deliberations of the Council and the Ward government did not renew the appointment. There were also those members who were not reappointed by a government opposed to the party which originally appointed them. When this problem first arose, after 21 years of Liberal Party rule, it preceded the projected reform of the Council and the Reform party obviously felt that it could adopt a relatively generous policy, reappointing such staunch and able opponents as Hall-Jones and Oliver Samuel. Sir Joseph Ward, as Leader of the Opposition, later condemned this policy as bad in principle and charged that by adopting such a course the Government had disappointed their own friends.35 Similarly, one of the Councillors not reappointed at this time, who subsequently won election to the House of Representatives, approved of his treatment as being both correct and constitutional.36 In 1917 a major purge was effected by the failure to reappoint six of the seven Councillors whose term had expired. Only Carncross, Chairman of Committees, who was absent overseas representing New Zealand at the Parliamentary Association Conference was reappointed immediately, although two others, Wigram and Jones, rejoined him in the following year. Often the question of reappointment appears to have been determined by the extent of opposition displayed to a government's policy. In 1937, for example, the Labour Government did not reappoint the former leader of the Council, Robert Masters, and three of the four Councillors who voted against the Government in 75 per cent or more of the divisions in 1936. It is perhaps not without significance that the Councillor who was reappointed, William Perry, was president of the influential Returned Soldiers Association. The last group of Councillors who failed to secure reappointment were those excluded in 1950. All were stalwart Labour appointees first appointed in 1936—one was 93 years old—and they could hardly 33 s* a' 3«

O.D.T., 19 June 1905. Press, 23 June 1934. N.Z.P.D., 1914, Vol. 169, p. 152. Ward. Ibid., 1916, Vol. 177, pp. 853-4. Anstey.

76

'THE SEVEN YEAR ITCH'

have expected mercy from a new National Government greatly outnumbered in the Council and pledged to a policy of abolition. Thus it is clear that the change from Ufe to seven-year tenure did achieve the limited object for which it was undertaken in the sense that Councillors became even more cautious than they had been before and rarely attempted to resist the government in power. Unfortunately, the effect was to emasculate a body already fundamentally weak. It is clear, therefore, that the system of nomination never functioned in New Zealand as it was originally hoped it would do, but was steadily drawn into the mechanism of party politics. Given this qualification, did it perform a useful service? Lord Bryce indicated three elements which he believed should find a place in a Second Chamber. The first included persons of experience in various forms of public work, administrative, judicial and parliamentary, together with persons with special knowledge of important departments of the national life such as agriculture, commerce, industry, finance and education. Several examples of this group were to be found in the Council in its early years, but few outstanding representatives remained for long, and the interest of one section—the large farmers—overbalanced the rest. Moreover, even though one member could declare rather fancifully in 1871 that They had in the Council large landed proprietors, merchant princes, and shepherd kings . .. " he went on to point out that members needed to attend to their businesses during the recess and many members still had to absent themselves to deal with the harvest or shearing. Later, the balance was tipped in a different direction, especially when the Council tended to be swamped with retired members of the House of Representatives and party supporters. Bryce's second category included men who lacked the physical vigour for the hurly-burly of the lower house. A total of 31 Councillors appointed lacked all previous political experience whether in Trade Unions, Local Government, Provincial Councils or the House of Representatives. Before 1870 some of these were Government officials, and it is noteworthy that nineteen of the total of 31 Councillors appointed without previous political experience were appointed before 1878. It seems clear that this oft-quoted advantage of a nominated upper house had very little significance in the case of the New Zealand Legislative Council. Indeed, several men appointed to the « Ibid., 1871, Vol. 11, p. 487. Buchanan.

•THE SEVEN YEAR ITCH'

77

Council later stood successfully for the lower house. Even so, despite the unbalanced composition of the Council it might still have made a useful contribution if Bryce's third group had succeeded in establishing itself, for he advocated that a certain proportion of the membership should consist of members free from party spirit and impartial in their outlook. But it was partly to prevent this occurrence that the system of tenure for seven years was introduced. By 1892 there was little room left for independentminded politicians, least of all those occupying paid, privileged positions in the Legislative Council. It seems, therefore, that the system of appointment for seven years did little to correct the fundamental fault in the composition of the Council, which was not the length of tenure, but the nominated system of appointment.

7

The Maoris

Strong hopes were voiced in the early years that the Legislative Council might provide for the recognition of Maori interests. In England, the Aborigines' Protection Society had proposed such a step in 1852 when Thomas Hodgkin wrote to Sir John Pakington urging that 'some of the élite of the Chiefs should be members [of the upper house], policy as well as justice demands this . . . '* In New Zealand, few would have been prepared to go as far as this. Dillon Bell, although he spoke of the new institutions as open to all, clearly had in mind representation of the natives' interests by European Legislative Councillors when he declared: For my part, I am inclined to think that, if the population of New Zealand were all of European race, I should prefer the legislation of the country to be carried on by one Chamber . . . But in the circumstances of this colony, with the fact before us that a majority of the Queen's subjects is of another race, which at present is, and must for some time remain, wholly unrepresented in the popular Chamber, I confess I see strong grounds for establishing a second legislative body, in which the acts of the representatives would come under review, and where the benefit of second thoughts would be had upon many subjects more or less directly affecting the interests of the large number who are unrepresented in the elections . . . 2 Although neither form of representation proved acceptable at this stage, the champions of the cause did not allow it to be completely forgotten. In 1860 Bishop Selwyn complained: 1

C.O. 209/107. Comments on the Bill to grant a Representative Constitution to the Colony of New Zealand submitted by the Committee of the Aborigines' Protection Society. 5 June 1852. * N.Z.P.D., 1854, p. 71. Bell.

THE MAORIS

79

In a Colony, in which the Representative Institutions are based practically upon 'universal suffrage', the assumption that the Representatives of the English Colonists have a right to govern the Native race must be untenable.3 Two years later, in the lower house, J. E. FitzGerald, first Superintendent of Canterbury and editor of The Press, unsuccessfully proposed the representation of the Maori race in both houses, those in the Legislative Council to be drawn from members of the Maori nobility.4 The spread of the Maori War in 1863, coupled with disputes over the best form of native representation, whether by Europeans acting on behalf of the natives, or by natives themselves, delayed the prospects of any immediate implementation of such suggestions, but the search continued. The arguments against representation were well summarized by Henry Sewell (then Attorney-General in the 1864-5 Weld Government), who noted that whether Maori leaders were nominated to seats in the Legislative Council or given representation in the house, there would be 'difficulties and objections on all sides'. He doubted the wisdom of appointing Maoris at that stage to the upper house, claiming that, whatever selection the Government might make from among the leading chiefs, it would be certain to raise bitter jealousies, and he believed that some, at least, of the best and ablest men were to be found among the King Movement. Sewell could not imagine old allies of the Government, such as Waka Nene or William Naylor, welcoming the appointment of William Thompson or Wi Tako or Ropata to the upper house while they themselves remained outside it; yet to put them all into the upper house 'would swamp the Lords and produce an insurrection in the august body'.5 In 1865 a Wellington journal reported that the creation by the Weld Government of what it termed 'Native honourables' was imminent,6 but the Government was defeated and went out of office before anything eventuated. A former member of the ministry suggested in 1867 that he had been responsible for rejecting the plan in the cabinet because of the difficulties likely to arise over the question of interpreters.7 If the Council refused to appoint interpreters, the effect of the appointments would be nullified. In the 1866 session the Native Minister in the Stafford Government, Colonel Russell, announced the Government's intention of calling 3 A-J, 1860, E-l, p. 23.

*5 N.Z.P.D., 1862, p. 510. FitzGerald. Sewell Journal, Vol. 2, Pt. VI, 4 June 1865. « Wellington Independent, 13 July 1865. i N.Z.P.D., 1867, Vol. 1, Pt. II, p. 814. Mantell.

80

THE MAORIS

three chiefs to the Council and of introducing a bill to provide six native representatives in the lower house. There was no intention of stipulating the race of the representatives, but Colonel Russell expected that they would be Europeans.8 Shortly afterwards, the house passed a motion of no-confidence in the Ministry and Colonel Russell resigned.9 Russell recalled in the following year that he had actually selected two of the chiefs, Tamati Wakenene10 from the northern part of the North Island and Hori Kingi from the southern part. He had intended to select the third chief from the South Island with the advice of the members from that part of the colony.11 The two chiefs named had had a long record of service to the pakehas, culminating with Kingi's success, in 1866, in persuading his friendlies to march with General Chute on the inland route to New Plymouth. The decision to give Maoris four seats in the House of Representatives in 1867, even if only intended to be of temporary duration, implied that appointments to the upper house must follow. Thus some Councillors gave rein to their conservative predilections during the debate on the Maori Representation Bill. One openly deplored the possibility of 'honorable cannibals' being admitted to their Chamber if the Bill passed;12 another somewhat melodramatically envisaged a day when a future government overwhelmed opposition to its legislation in the Council by the appointment of Maori nominees,13 and it was also emphasized that whereas this Bill was a temporary measure applying to the House of Representatives only for five years, nomination to the Legislative Council would be for Ufe. Despite a warning that opposition to the measure might be misconstrued outside the Chamber, the matter went to a division, where it was carried by fourteen votes to three. In fact, the threat to the racial purity of the upper chamber was less immediate than it seemed at that time. The premier, Stafford, proved to be no more enthusiastic about appointing Maoris to the upper house than most Councillors and in the following year he took up Sewell's old argument that there was a wealth of difference between Maoris electing and the Governor selecting, arguing that nomination might give rise to tribal s8 Ibid., 1866, p. 816. Russell. See W. K. Jackson and G. A. Wood, "The New Zealand Parliament and Maori Representation", in Historical Studies Australia and New Zealand, Vol. 11, 1964. 10 Cited as Wakaneori. " N.Z.P.D., 1867, Vol. 1, Part I, p. 414. Russell. " Ibid., 1867, Vol. 1, Part II, p. 815. Harris, is Ibid.. 1867, Vol. 1, Pt. II, p. 815. Menzies.

THE MAORIS

81

jealousies;14 a particularly lame excuse since the names of those likely to be appointed had already been known since 1867. It was not until Stafford was out of office that a major attack on the problem began. By this time an alignment of interests had begun to emerge. Members of the lower house did not see why the susceptibilities of the upper should be spared; certain members of the Legislative Council itself began to see advantages in the appointment of Maori Councillors, if only to improve the image of the Council, and the Maoris themselves began to view such representation as their right.15 Even so, the arguments dragged on throughout 1870 and 1871. In the latter year, Henry Sewell, the old opponent of Maori representation in the Council, and now Minister of Justice, stated that the Government favoured in principle the nomination of one of two Maori representatives to the Council, but then went on to argue that there were circumstances and matters in connection with the question upon which they had come to no conclusion.16 It was argued in favour of admission that the symbolic effect would be of great importance and that it would constitute a major step in the advancement of the political education of the Maori. One member also stressed the entitlement of the race to representation on the grounds that Maoris were still the largest class of landowners in the North Island, owning some threequarters of the soil.17 Objections owed something to the previous experience of Maori representation in the House of Representatives. The difficulty of obtaining truly independent interpreters was raised again and the fear expressed that Councillors who spoke Maori might unduly influence Maori votes. Subsequently, in a debate upon an unsuccessful motion to set up a select committee to consider the proposal of the Government to add one member of the Maori race to the Council, the leading opponent of the idea questioned the grounds upon which the appointments were to be made. Seats in the Legislative Council, argued Andrew Buchanan, were too high a price to pay for conciliation. He feared the possibility of undue pliancy and believed that Maori representatives might even be responsible for tipping the balance on questions of which they had no knowledge and which were not really of concern to them. He asserted, on the authority of no less a person than F. D. Fenton, Chief Judge of the Native Land Court, that i* « i« «

Ibid., Ibid., Ibid., Ibid.,

1868, Vol. 1871, Vol. 1871, Vol. 1871, Vol.

2, p. 499. Stafford. 10, p. 471. Takamoana. 11, p. 5. Sewell. 11, p. 11. Waterhouse.

82

THE MAORIS

there was so much childishness mixed up with their great intelligence and that they were so entirely devoid of judgement that they were inherently ill-suited to the legislative proceedings of the upper chamber.18 In the following year, 1872, the first act of Waterhouse in his brief term as Premier was to appoint two Maori members for the first time in the history of the Council.19 The two appointees were of considerable eminence in the Maori world. Both were North Island Maoris. Wiremu Tako Ngatata had originally been one of the chief promoters of the Maori King movement and had offered his allegiance, with that of his tribe, to King Potatau. He adopted a neutral posture over the Waitara dispute and was finally persuaded by Fox to renounce the King party. (He was reported to have taken the pledge at the same time.) After leaving the King party he took little further part in Maori politics, but of his capacity as a politician and orator there could be no doubt. Mokena Kohere, on the other hand, was a leading chief of the Ngati-Porou, a tribe distinguished by a record of friendliness to the British and the missionaries. Kohere, personally, had been a staunch supporter of the British from the outset and had provided invaluable support both as a warrior and through his considerable influence over the whole of the East coast Maoris of the North Island. These first two Maori members of the Council were involved in an unfortunate incident within ten days of entering the Chamber. Shortly after their appointment the highly contentious government Railways Bill underwent its second reading in the Council and was narrowly defeated by 13 votes to 12.20 The Maori appointees, not comprehending the issues, had left the Chamber on the Premier's advice before the vote. Following its surprise defeat, the Bill was promptly re-read before what Waterhouse claimed was a fuller chamber, even though there was only one additional member present for most of the debate. On this occasion, both Maori members voted with the Government and the Bill was carried by 15 votes to 12.21 Waterhouse claimed that he had attempted to dissuade the new Maori representatives from voting on both occasions, but that at the latter division they had both insisted on taking part.22 Even though the Government would have scraped the required

« Ibid., 1871, Vol. 11, pp. 213-4. Buchanan. " Ibid., 1872, Vol. 13, p. 588. Waterhouse. 20 Ibid., 1872, Vol. 13, p. 829. 21 Ibid., 1872, Vol. 13, p. 879. 22 Ibid., 1872, Vol. 13, p. 881. Waterhouse.

THE MAORIS

83

majority without the support of their Maori appointees on this occasion, the effect produced was an unfortunate one. Subsequently, in 1879, it was asserted that the appointment of these two Maoris to the upper house had been part of a deal. Stafford and Gillies had turned out the Fox Ministry in September 1872, and 28 days later Vogel had brought a want of confidence motion against the new Government. In the House of Representatives, one of the Maori members, it was asserted, was inclined to vote for the Stafford Government, but He was bought, and the price he got was to stick Wi Tako and Mokena into the other House and give himself a seat on the Government benches.23 Similar charges of jobbery were also heard when attempts were made to persuade the Maori King, Tawhiao, to accept a seat in the Council. The government was openly accused of offering) bribes for political purposes.24 It is not surprising, therefore, that the earlier attempts of the Maori representatives in the lower house —particularly those of the member for Southern Maori, H. K. Taiaroa25—to add a representative Maori member for the South Island Maoris to the 'Assembly of Chiefs' met with little success. Eventually, in 1879, Taiaroa himself was translated to the upper house, although he was subsequently disqualified on a technical point in 1880. The casualness with which Maori representation in the upper house was regarded is reflected in the delay of nearly five years before Taiaroa was reappointed. In a similar situation in 1887, a European, J. T. Peacock, had been reappointed in less than a month. Reflecting on the matter some years later, W. B. D. Mantell admitted that, 'The honourable gentleman being a Maori, his case was passed over by us with an amount of negligence which reflects little credit upon us.'26 In the Council the first Maori appointees had been expected to participate in the discussion of matters directly affecting their race, but beyond that had played little part in proceedings. In 1875, for example, of a total of eleven divisions taken on eight major bills in the Council, Kohere and Ngatata voted in four, each supporting the Government in the important Abolition of the Provinces Bill and opposing it in the Piako Land Exchange Bill. In 1878, Kohere took part in eight of a possible 40 divisions on sixteen major bills, voting consistently with the government of the day. Ngatata took 23 2 * 25 «

Ibid., Ibid., Ibid., Ibid.,

1879, Vol. 33, p. 37. Lundon. 1886, Vol. 55, pp. 337-8. Newman. 1873, Vol. 14, p. 597. Taiaroa. 1888, Vol. 63, p. 139. See also Ibid., 1885, Vol. 51, p. 257. Stout.

84

THE MAORIS

part in only three, voting twice with, and once against, the Government. In 1884, when both were more active, Kohere voted in eighteen out of a possible twenty-nine divisions on twelve major bills, and Ngatata in eleven. Two later appointees, H. K. Taiaroa and R. Wahawaha, both took an active role in divisions. (See Table L.) With Govt. Taiaroa 1887 1888 1889 Wahawaha 1887 1888 1889

TABLE L Total Against Votes

Total No. of Total Possible Divisions Bills

4 9 2

10 24 6

14 33 8

18 47 4 6

2 11 20

8 25 13

10 36 33

18 47 46

11 20 2 8 11 20 28

Taiaroa also exhibited distinct political preferences hi divisions in the Chamber. Of 46 divisions on government Bills between 1887 and 1891 inclusive, the results were as follows: TABLE M Voting in 46 Government Bills 1887 - 91 (inclusive) Atkinson Govt. 1887-90 Liberal Govt. 1891 Taiaroa

For Against

8 13

For Against

6 1

For Against

16 13

For Against

5 3

Wahawaha

Wahawaha, although 80 years old when appointed and a regular attender at the Council, made only one major speech in his ten years in the Chamber and took little part in debates. In general, the appointment of Maoris for life to the upper house appears to have been heavily influenced by political or symbolic motives. Yet, ironically, by 1890 the Legislative Council and the Maori race had come to have something in common. W. P. Reeves declared: I think, myself, we should treat it (the Legislative Council) as we do the remnants of the Maori race—treat them as the venerable remains of a noble race . . . let them die peacefully.27 If it is clear that the value of Maori representation in the upper house between 1872 and 1891 was limited, there is little evidence of any serious attempt to improve it subsequently by either Maori or Pakeha. Both of the first two appointments made under the « N.Z.P.D., 1890, Vol. 68, p. 186. Reeves.

THE MAORIS

85

seven-year term introduced in 1891 had distinct political overtones. In the case of one appointee, Henare Tomoana, it was suggested : Possibly the government were getting a little tired of the Maori Parliaments and other forms of agitation and hoped that his elevation to the Council may quieten his perturbed and perturbing spirit.28 But it was the appointment of the Maori King, Mahuta Wherowhero (the first to accept the honour), to the Executive and Legislative Councils which caused most controversy. The appointment, which was something of a personal triumph for Premier Seddon, was intended to smooth the way for the working of Maori Councils in the King country,29 but it succeeded only in causing irritation amongst both races. Mahuta was sworn in at a special ceremony before the Governor at Auckland instead of waiting until the meeting of Parliament in the normal way, whilst outside, it was reported, a small section of the Ngatimaniapoto tribe sang derogatory chants at the gathering.30 Mahuta took virtually no part in the proceedings of the Council, and was not re-appointed on completion of his seven-year term. Criticisms were also made of the appointment of another Maori, Wiremu Pere, in 1907, although he subsequently took a much more active part in the proceedings of the Council. Thus it is not surprising that, when the Reform Party came to power in 1912 pledged to convert the upper house into a chamber elected by proportional representation, it excluded the Maori representatives from its proposals. The Premier did concede later that there might be a case for the direct election of the Maori representatives,31 but little interest was evinced in the question. Although the Reform Government made an appointment which was well received when it first came to office, by early 1917 Maori representation in the upper house, which normally stood at two representatives, had completely lapsed. The Premier, when asked about this, replied that the Government had been fully occupied with 'cabinet work'.32 Two Maoris were appointed in the following year. Topi Patuki, the second son of the great chief of the Ngaitahu and Ngatimamoe tribes, King Topi Patuki, was the owner of a large sheep station, with a good liberal education at Te Aute College. Patuki was an able appointee but how much he 28 2

» «o si su

The Press, 28 June 1898, also Ibid. 25 June. Scholefield D.N.Z.B., Vol. II. O.D.T., 25 May 1903. N.Z.P.D., 1912, Vol. 160, p. 802. Massey. Ibid., 1917, Vol. 179, p. 21. Massey.

86

THE

MAORIS

owed his appointment to his qualifications, and how much to his earlier withdrawal, on the eve of the election, in favour of the government candidate for Southern Maori, is a moot point.33 One journal commented drily that the two new members were both unknown quantities and that it would not be surprising if they remained so.34 This type of attitude, which was general, appeared to arouse little concern whether inside or outside Parliament. Indeed, in the same year, 1918, the idea of electing Maoris by proportional representation was used in a deliberate effort to burlesque that system of representation. After 1918, Maori representation in the upper house was largely a pro forma affair and for protracted periods was completely neglected without any signs of protest.35 By 1947, there was only one Maori representative in the Chamber, although perhaps it is fitting that the number was increased to two for the coup de grace in 1950. Apart from some activity in its early years, before Maori representatives were appointed to its ranks, the Council therefore contributed little in this most important sphere of New Zealand affairs and it is difficult to avoid the conclusion that Maori representation in the upper chamber proved a singularly ineffective instrument. Maori Councillors were, in the words of an early appointee, 'just like fish that had been hooked out of the water and placed in a pond'.36 33 34

The Press, 7 May 1918. O.D.T., 7 May 1918. as Nevertheless it continued to represent the same temptations to Maoris as to Europeans. In 1919, for example, Maui Pomare was suggesting that the Prime Minister should promise the member for Northern Maori a seat in the upper house in order to break up opposition to him. See P. S. O'Connor, 'Some Political Preoccupations of Mr Massey, 1918-20' in Political Science, Vol. 18, No. 2, September 1966, p. 27. 3 33 By that time, the Premier »i See Ibid., 1896, Vol. 93, p. 59. G. W. Russell. Ibid., 1898, Vol. 105, p. 459. Walker. » Ibid., 1899, Vol. 110, p. 9. Seddon.

32 3

162

THE FAILURE OF REFORM PROPOSALS

had at last achieved a majority in the upper house and, with the first group of appointees falling due for reconsideration, he was able to tighten his grip. Thereon, there was no further need to coerce the Council, for, as the Leader of the Opposition claimed, the government of the country had been resolved into that 'not of one Chamber, but that of one man'.34 With Seddon in undisputed command, there was little public concern about an upper chamber which had never really won respect. Parliamentarians might feel some disquiet but they were too much divided amongst themselves to agree on common action, since their opinions ranged from that of the leader of the Opposition, who favoured reinstatement of nomination for Ufe, to that of the prohibitionist T. E. Taylor, who favoured abolition. In this situation, the politics of prohibition played an influential part. The Council had incurred the wrath of the prohibitionists when it threw out the Alcoholic Liquors Sale Control Bill in 1896, and the campaign waged against it rapidly developed into a feud. By 1901, Seddon feared a split in the party and when, in that year, prohibitionists introduced a Referendum Bill, he was forced to act. The bill had as its object reference of the liquor question and bible-reading in schools directly to the people. It was clearly a device for overriding the wishes of the Legislative Council and was probably seen by some extremists as a harbinger of abolition. Nevertheless, the Government took up the bill, whereupon Seddon threw all his considerable energies into a defence of the Legislative Council and the nominative system. He insisted that all feeling against the Council had gone and that it was in touch with public opinion.35 He contrasted conditions in Victoria, which he knew at first hand and where an elective upper chamber existed, unfavourably with the nominative system in New South Wales and New Zealand, urging that, 'With all our faults and drawbacks, our present Constitution is really the best, and it is proved to be the best because we have passed the most progressive legislation.'36 But the prohibitionists refused to be smothered in this way and in 1903 they seized the opportunity to mount another major attack, this time arising out of a procedural impasse which had occurred over the State Insurance Bill. Several members of the lower house attacked the upper and pressed for reform; by now an implied attack upon the Premier himself. It was a war of attrition and " Ibid., 1899, Vol. 110, p. 2. Russell. 3' Ibid., 1901, Vol. 116, p. 214. Seddon. « Ibid., p. 267. Seddon.

THE FAILURE OF REFORM PROPOSALS

163

Seddon was gradually giving ground. Accordingly, the new opposition leader, W. F. Massey, quick to sense his opportunity and anxious to maintain the pressure, unexpectedly moved, during an Imprest Supply debate on the following day, that legislation should be introduced during the next session to make the Council elective. Seddon might accuse him of bidding for the temperance vote, but Massey had, in effect, set a neat trap, placing government supporters who had openly declared themselves in favour of reform hi a most embarrassing position. Faced by this sudden alignment of opposition and prohibition, Seddon riposted by suddenly announcing, 'I shall ask the House this session to consider calmly and deliberately, and with something tangible before it, the abolition of the Legislative Council . . . '37 By this promise—later broken—and by treating the question as a matter of confidence, he had once again narrowly succeeded in heading off opposition, but the room for manoeuvre was steadily narrowing. In 1904, Seddon's promised measure, postponed from the previous session, again failed to materialize. His defence, when questioned, was to refer to the Legislative Council Reform Bill of exSpeaker Sir William Steward introduced on 29 June, even though it was generally accepted that a constitutional reform of such magnitude would not result from a private member's bill.38 Surprisingly, the bill passed the second reading and only narrowly failed at the third because, as Steward claimed later, 'Among the Noes were all the then Ministers—Messrs Carroll, Duncan, HallJones, McGowan, Mills, the Right Honourable Mr Seddon, and Sir J. G. Ward, as well as both the Government Whips.'39 Whilst the bill was still under consideration by the lower house another member sprang a major surprise by moving reduction of the supply vote for the Legislative Council by £1, as an indication that some reform of the upper house was necessary.40 A debate developed despite Seddon's attempts to stifle it and the motion was eventually carried by 34 votes to sixteen with the Premier voting in favour but insisting that it was not to be taken seriously and that the Government did not feel bound by it.41 Again in 1905 the promised measure failed to appear and Seddon voted against the second reading of Steward's Legislative Council Election Bill which provided for indirect election by the lower house. Pres« Ibid., 1903, Vol. *" Ibid., 1904, Vol. »» Ibid., 1906, Vol. 40 Ibid., 1904, Vol. « Ibid., 1904, Vol.

127, p. 123. Seddon. 128, p. 23. Seddon. 137, p. 526. Steward. 129, p. 306. Bedford. 129, p. 320. Seddon.

164

THE FAILURE OF REFORM PROPOSALS

sure was maintained and another motion to reduce the Legislative Council vote by £1 was introduced. In addition, a bill providing for direct election of the Council gave that body an opportunity to air its own views. By this stage there were a number of different individuals and groups struggling for reform of the Council, although they never succeeded in concerting either their actions or their policies. Of these groups, the prohibitionists were the most important, their wrath being kept at fever pitch by successive rejections of the Referendum Bill by the Council. Although often divided amongst themselves as to what they wanted or were prepared to accept, there was a strong abolitionist element amongst Members of Parliament. The Opposition used the issue as a stick with which to beat the government and pushed strongly for an elected upper house, obviously hoping to capitalize on the prohibitionist agitation as well as on the general feeling of dissatisfaction with appointments. This dissatisfaction also expressed itself in backbench support of persistent reform attempts by Sir William Steward. Although it was always very doubtful whether the upper house would seriously entertain a bill for reform originating in the lower, the main obstacle to Steward's efforts proved to be not this, but Seddon. The Premier showed on several occasions that he had no scruples about openly criticizing the Chamber which he had so largely appointed, whilst at the same time obstinately avoiding reform, and in 1906 he calmly informed the Governor that if the new Parliament took no action he intended making further new appointments to the Council.42 The death of Seddon in 1906 and his replacement by Sir Joseph Ward thus took place at a time when members on all sides of the House, Liberals, the Opposition, and prohibitionists, together with a substantial sector of the newspaper press, all favoured some form of change even if they could not agree on the form that change was to take. Yet once Ward grasped the nettle and appointed fifteen new members, in the teeth of Massey's criticism and the introduction of a third Legislative Council Election Bill by Steward,43 the issue quickly became overshadowed by other questions, such as the Second Ballot Bill. But the issue could never be far below the surface, if only because, when the Liberal party was « C.O. 2091268, Plunket to Earl of Elgin and Kincardine, 18 May 1906. (Secret). Also PM/4/1, Memorandum from Seddon to Governor dated 12 May 1906. 43 The bill passed its third reading 35:28 but was negatived on voices in the upper house.

THE FAILURE OF REFORM PROPOSALS

165

eventually replaced in office, its successor would be faced with an overwhelmingly hostile upper house. A bill introduced by a Liberal member in 1910 sought to meet this situation by proposing the termination of office of all Councillors at the next dissolution and the substitution of election by single transferable vote. No one expected the bill to pass, but it did provide another opportunity to discuss the problem. As the 1911 elections approached, activity was stepped up. Both parties included reform of the Legislative Council as an important part of their policies and in Parliament four successive motions were moved to reduce the Legislative Council vote by amounts varying from £5 to fl.44 Once again, as in 1890, reform of the Legislative Council seemed imminent. « N.Z.P.D., 1911, Vol. 156, pp. 62-79.

14

The Unsuccessful Reform of 1914

At the elections in December 1911, two parties went to the electors promising reform of the Council, whilst the handful of Labour candidates offered abolition. But it was the Liberal party under Ward, so long half-hearted about reform, that eventually announced its intention in the Governor's opening speech of 1912 of bringing in far-reaching local government reforms to which that of the upper house was to be linked. It was proposed that a proportion of the members of the Legislative Council should be elected by the members of the Provincial Councils to be created by the new Local Government Bill, a proportion by the lower house and a certain number appointed by the Government. The scheme appeared to owe something to a suggestion made by a member in the previous year.1 In fact, Ward's proposals were part of a desperate gamble to stay in power by proposing sweeping reforms after near defeat in the elections. The Governor, commenting that his speech was framed to catch the independent voter, added that it embraced every proposal ever advocated or dreamt of by the Labour party and extreme radical wing, and that he needed all his 'constitutional demeanour' to cope with the situation.2 Despite Sir Joseph Ward's expedients the Reform Party came to power in July 1912. Although it could only claim a mere 36% of the total vote, that party apparently had no compunction about claiming a mandate for reform of the Council as advocated in the election policy: Reform of the Legislative Council by replacing the present nominative Council with one elected on the same franchise as the 1 N.Z.P.D., 1911, Vol. 156, p. 49. Fowlds. 2 C.O. 209/275, Islington to Harcourt, 10 April 1912. (Secret).

THE UNSUCCESSFUL REFORM OF 1914

167

House of Representatives on the proportional system of voting by larger electorates.3 The party's two principal electoral promises had been the granting of the freehold and reform of the public service, and the public had not proved greatly interested in the Legislative Council.4 Traditionally such questions were of greater interest to politicians than to the public. Even so, less than a month after the Government took office, reform proposals were outlined in the Financial Statement of 6 August.5 It was claimed that the country demanded change and that the 1891 reform had proved even more unsatisfactory than the system of life tenure. The new bill provided for a 42 or 43 member Council directly elected for six years by a scheme of proportional representation based upon the 1909 Transvaal Municipal Act.6 Proportional representation was enjoying something of a vogue in New Zealand at this time, being strongly backed by F. M. B. Fisher, Minister in charge of the Electoral Department. There had been an earlier willingness to engage in electoral experiments involving multimember urban electorates, both before 1881 and between 1890 and 1905. In addition, a Second Ballot Bill had been passed in 1908. Proportional representation had been considered by the Reform Government as an alternative to this Second Ballot for elections to the House of Representatives,7 and the Chief Electoral Officer had been sent to Tasmania in 1912 to report on the success of the system there. Despite an adverse report, a bill for the election of the lower house by proportional representation was prepared, only to be defeated—or so it was alleged—in the Reform Party caucus.8 Later in 1914, a bill was also introduced permitting municipal councils to adopt a system of representation based upon this method.9 The application of such principles in the Legislative Council Reform Bill of 1912 seems to indicate that that body was being used as a guinea-pig in order to test these current theories of proportional representation.10 3

Fight for Freedom. Reform Party Pamphlet. Also Dominion, 7 July 1911. * L. C. Webb, Rise of the Reform Party, p. 80. Also W. D. Stewart, Sir Francis Bell, p. 103. » N.Z.P.D., 1912, Vol. 158, pp. 582-3. Allen. 6 L. C. Webb, Rise of the Reform Party, p. 76. Also J. H. Humphreys, Proportional Representation, pp. 122 and 205. Also Round Table, December 1912, No. 9, pp. 186-7. i N.Z.P.D., 1914, Vol. 169, p. 339. Fisher. »9 Ibid., p. 344. Russell. Ibid., p. 383. Fisher. " Ibid., p. 384. Fisher.

168

THE UNSUCCESSFUL REFORM OF 1914

Under the first scheme proposed, two large constituencies were to elect 20 members for each main island whilst two or three Maori members were to be nominated. The term of service was to be six years with half the members retiring at each election. Qualifications for membership were to be the same as for the House of Representatives and the aggregated electoral rolls of that House were to be used for the Council. No alterations in the powers of the Council were proposed, but provisions to deal with deadlocks were added. In accordance with constitutional usage, the Legislative Council Reform Bill was introduced first in the upper chamber. By following this course and making only one Reform Party nomination to the Council—Francis Henry Dillon Bell as leader—the new Prime Minister, William Massey, placed Councillors in a difficult position. If he had attempted to swamp it, the Council might have elicited sympathy in the ensuing fight; instead, Councillors had to move very warily, for to reject any measure would have been to invite an outcry. The move was an astute one politically, and Massey had the almost ideal instrument to hand in Bell. It has even been claimed that it was Bell who had induced Massey to include the proposal for Legislative Council reform in the party election platform,11 although it is doubtful whether Massey needed much prompting, since he had been calling for reform of the Council for a number of years before 1911 and the Liberal dominated upper chamber offered a tempting target for any opposition politician. Subsequently Bell himself twice denied any part in promulgating the Reform party programme.12 Nevertheless he was largely responsible for drafting the Bill13 and proved an able advocate of the principles it contained. In a speech of over two hours' duration introducing the bill, Bell pointed out that the roles of the House of Lords and the Canadian Senate, as well as of other upper houses, were undergoing reassessments. He argued that the 1891 reform had proved vicious in principle, that reform had been a leading plank in the platform of his party at the last election, and that the proposals he was submitting had a long and respectable pedigree, being closely related to the Whitaker-Atkinson proposals of 1883. The avowed intention of the Government, he declared with some delicacy, was to transform the Council into an institution in which members 11 W. D. Stewart, Sir Francis Bell, p. 94. " N.Z.P.D., 1913, Vol. 163, p. 335 and Vol. 164, p. 795. Bell. 13 Stewart, op. cit., p. 97.

THE UNSUCCESSFUL REFORM OF 1914

169 14

would sit 'as men having authority, and not as the Scribes'. Although numerous compliments were paid to the thoroughness and moderation of his address, Bell had difficulty in finding a seconder. Reform was admitted to be necessary and Councillors displayed marked reluctance to obstruct government bills unnecessarily, but strong objections were raised to this particular measure. Both its justification and its legislative priority were questioned. Opinion on the merits of election was divided, but few members were prepared to support a system of proportional representation. One member suggested that the measure should be called An Act to provide an Experimental Election by Ballot in a Weird and Cumbersome Method not Relished or even Understood by Members of Parliament, and therefore applied to Members of the Council.15 But however much Councillors might bluster, their position remained perilously exposed. To reject the measure might have been to precipitate a more violent attempt at reform, at the same time further discrediting themselves as hopelessly egocentric, but to accept it would simply flaunt their weakness. In the event they were saved from their dilemma by a political blunder on the part of Bell. Despite open hostility in the early debates, Bell had sought to gain his ends by moderation and blandishments, asking Councillors to pass the second reading merely as an endorsement of the principle of election.16 This provided the bolt-hole. The Bill passed the second reading by 24 votes to eight, but was then lost in committee when it was deferred until the next session so that the electors of the Dominion might be given the opportunity of considering it." The Government's spokesman had been outwitted and the Council had gained a year's grace. Ironically, the chief architect of Bell's defeat was J. D. Ormond, one of the few surviving 1891 Atkinson appointees. The Government was determined not to let the question lie and made immediate preparations to secure its objective in the following session. A series of six resolutions was introduced into the House of Representatives. The first, affirming that reform by the present Parliament was necessary, was carried without a division; the second, providing for the method of direct election, was carried by 39 votes to seventeen; Clause 3, providing for a system of proportional representation, was carried without a division. Clause 4, " N.Z.P.D., 1912, Vol. 159, p. 159. Bell. Ibid., p. 326. Jenkinson. i» Ibid., p. 145. Bell. 17 Ibid., p. 728. Ormond; and p. 776. 15

170

THE UNSUCCESSFUL REFORM OF 1914

carried by 40 votes to seventeen, provided that the number of elected members, other than Maoris, should be 40, half the Chamber to be elected at each general election for the lower house and each member to sit for the period of two Parliaments. Clauses 5 and 6, providing that electoral divisions be based on aggregated electorates of the lower house, and that provisions similar to those of the Commonwealth of Australia Constitution Act be incorporated—both for ensuring the continuance of financial control by the lower house and for providing machinery for resolving deadlocks —were both carried without a division.18 Meanwhile, eight days after the passing of Ormond's amendment, preparations were made in case it should prove necessary to swamp the Council and a Legislative Council Bill, providing that all future appointments should be for a period of three years only, was introduced into the lower house. This bill encountered heavy opposition and after passing the House of Representatives was eventually rejected in the Council at the second reading by 21 votes to thirteen, with the Government virtually refusing to accept amendments.19 With the failure of this bill it became clear that a number of new seven year appointments would have to be made if the Reform Bill were to be carried in the Council. These appointments would, in turn, postpone full implementation of the scheme, since the Government did not want the membership of the Council unduly to exceed the now customary maximum—half the size of the lower house. Five new appointments made at the beginning of the 1913 parliamentary session heralded the reintroduction of Bell's modified reform bill. The electorates were reduced in size and increased in number from two to four and, because of the additional seven year appointments, it became necessary to provide for the introduction of the scheme in two stages. Twenty-four members were to be elected at the General Election of 1917 and the remainder of the Council, with the exception of Maoris and any surviving life members, were to be elected in 1923. Bell sought to persuade the Council of the merits of the scheme, challenging it to devise a better proposal and even agreeing to set up a Select Committee to consider the whole question of reform.20 But this Committee could only agree unanimously on a resolution that the constitution of the Council should be changed wholly or partially to some system of i» J.H.R., 1912, pp. 164-5. i» N.Z.P.D., 1912, Vol. 161, pp. 398-9. « Ibid., 1913, Vol. 163, p. 342. Bell.

THE UNSUCCESSFUL REFORM OF 1914

171

election. Two Councillors, at least, only agreed with this to avert graver threats.21 A number of alternative proposals were considered by the Committee, ranging from direct election on the same franchise as the lower house to a suggestion that the Council should be part nominated and part elected. The latter scheme elicited the unkind comment that the proposer was advocating 'a Seidlitz powder, three parts acid and one part carbonate of soda, and [he] expects a sparkling result.'22 Although the Committee preferred an alternative scheme for an indirectly elected Council similar to that proposed by Sir William Steward in 1905, this was not endorsed by the full Council. The Council did approve the principle of election, but again only in general terms, for a proposal that this should take the form of direct, popular election was lost by one vote.23 The issue cut across party lines. One Councillor appointed by the Massey government, for example, spoke against the bill even though he was prepared to vote for it.24 It was clear that the Council had been unable to meet Bell's challenge and the Government was now very close to attaining its objective. Massey announced shortly afterwards that he confidently expected the success of the measure they were contending for before the end of that Parliament. The grounds for the Prime Minister's confidence were revealed in the Governor's speech at the beginning of the following session when it was announced that the 1913 bill would be re-introduced but, if passed, would not come into operation until after the General Election at the end of that year. It was also announced that eleven new appointments had been made to the Council, giving the Government an assured majority. In any case, several Councillors believed that, having rejected the matter twice, they were under an obligation to cease their opposition.25 The second reading was carried with ease by 24 votes to eight. Bell did agree to make one important amendment in the face of opposition criticism. It was claimed that the effect of postponing the full operation of the bill would be to give the Reform Party a large majority in the Council during the transition period 1917-23, because by 1918 the terms of office of many of the Liberal nominees would have expired. If the bill passed without amendment, the power of nominating Councillors would be terminated. Thus, " Ibid., Vol. 164, p. 791. Samuel. " Ibid., p. 815. Duthie. « J.L.C., 1913, p. 64. « N.Z.P.D., 1913, Vol. 164, p. 815. Duthie. 25 Ibid., 1914, Vol. 169, pp. 15-16. Samuel; and p. 20, Muís.

172

THE UNSUCCESSFUL REFORM OF 1914

if the Liberals were returned to power as a result of the 1914 General Election, they would find themselves faced by an entrenched Reform Party majority in the Council, a majority which would be likely to persist until 1923. Accordingly, Bell agreed to an extension of the power of nomination until 1 January 1916. These provisions for the transition period from nomination to election were clumsy and protracted. The Government should have drawn a moral from the continuance in office of the life members after 1891 and stipulated that all the existing appointments should terminate with the first elections for the new Council. But it seems likely that the attraction of the power of patronage was steadily looming larger for the Premier and the prospect of a pro-Reform Party Council lasting, perhaps, until 1923 was, no doubt, seen as an attraction rather than a disadvantage. Several minor amendments were made in the House of Representatives. One, enabling women to be elected, caused considerable irritation in the Council and it was agreed to substitute a clause providing that women would be admitted when they became eligible for nomination and election as members of the House of Representatives.26 A clause providing that the transition Council of 1919-23 might make up its members to 40 where necessary, by itself filling vacancies by election, was struck out of the bill and another clause, providing that Councillors appointed between the passing of the Act and its coming into effect should sit only until July 1921, was inserted. An attempt to stipulate the election of Maori Councillors was also defeated. After the successful third reading, the Leader of the Opposition, Sir Joseph Ward, announced that, if returned, his party would probably ask for certain amendments to the bill, whereupon the Prime Minister made the surprise announcement that the Government intended to give Parliament the opportunity of reconsidering the bill before it was brought into operation.27 The General Election of 1914 was closely fought, and during the course of the campaign Ward charged the Reform Party both with highly dubious dealings in Legislative Council seats and with attempting to dominate the Council merely in order to try to perpetuate the Reform Party in power. At the same time, the Liberals proposed a system of proportional representation for the House of Representatives to be combined with the existing 'country quota' favouring rural areas. It has been remarked, however, that Ward was notably reticent about the future of the Coun"« Ibid., Vol. 171, pp. 691-700. " Ibid., p. 693. Massey.

THE UNSUCCESSFUL REFORM OF 1914

173

cil.28 The election resulted in a deadlock and it was not until June 1915, after a protracted series of petitions and by-elections, that the Reform Party emerged victorious with a majority of one in the House of Representatives. The question of a wartime coalition government raised important doubts about the future of the new Act. The official terms agreed between the two parties and announced on 4 August 1915 made no reference to the Legislative Council, but the Sun newspaper reported on 5 August that a written agreement had been reached between the party leaders which stipulated that There shall be an amendment or repeal of the Legislative Council Act, which otherwise would come into force at the end of this year, and would give the Reform Party a secure majority in the Council during the lives of two Parliaments.29 Questioned about the matter in Parliament, Massey did not deny the agreement although he insisted that there would be no repeal of the Act.30 Subsequently, Bell admitted in the Council that postponement of the date upon which the Legislative Council Act was to become operative had been part of the price paid for the Liberal Party entry into the coalition.31 It had been agreed that the Act should not be brought into operation until at least one year after the termination of the coalition. This would allow the Liberals, if they were in power, to make further nominations or to alter the Act.32 Two Legislative Council Amendment Bills were passed, postponing the operation of the Act for the years 1915 and 1916. Meanwhile, there seems little doubt that Massey's attitude towards proportional representation was undergoing an important change. From the outset, many 'country' members of his party had viewed the principle with distaste33 and one newspaper later reported : It is an open secret that the Honourable Mr Massey and many of the other ministerial representatives of his party would gladly avail themselves of any plausible excuse to rid themselves of a reform which they never loved wholeheartedly and which they have ceased to love even faintly . . . 3 4 28

A. Wood, The Origins of the First National Government, p. 81. Quoted in N.Z.P.D., 1915, Vol. 173, p. 121. Ibid., p. 121. Massey. Ibid., 1916, Vol. 177, p. 235. Bell. Ibid., 1915, Vol. 174, p. 878. Bell. Also 1919, Vol. 185, p. 999. Bell; and 1916, Vol. 177, p. 843. Massey. » Wood, op. cit., pp. 71, 73, 77. « Evening Star, 25 July 1916.

™