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DESPATCH, LORD GODERICH TO SIR THOMAS COCHRANE,
TRANSMITTING TO HIM HIS COMMISSION AND INSTRUCTIONS AS GOVERNOR AND COMMANDER-IN-CHIEF IN AND OVER THE ISLAND OF NEWFOUNDLAND AND THE TERRITORIES DEPENDING THEREON. 1
Downing-street, 27 July 1832.
I have the honour herewith to transmit to you His Majesty's Commission under the Great Seal, appointing you Governor of the Island of Newfoundland together with your General Instructions under the Royal Sign Manual, referred to in that Commission.
As this is the first occasion on which provision has been made for convening a Legislative Assembly for the island of Newfoundland, the importance of that measure requires that I should not limit myself to the merely formal duty of placing you in possession of these instruments, but that I should shortly explain the grounds and the nature of the policy by which His Majesty's Councils on this subject have been directed.
It were superfluous at the present day to inquire into the wisdom of that system which was pursued for so many years towards the ancient colony under your government, the fundamental principle of which was to prevent the colonization of the island, and to render this kingdom the domicile of all persons engaged in the Newfoundland fisheries. The common interest or convenience of those persons virtually defeated the restrictions of the various statutes respecting them, long before Parliament admitted the necessity of repealing those laws. A colony gradually settled itself along the shores of the island, and has of late years assumed a rank of no inconsiderable importance amongst the foreign possessions of the British Crown ; but notwithstanding the growing population and the wealth of Newfoundland, no plan has hitherto been adopted for regulating such of the internal affairs of the colonists as demanded the enactment of laws specially adapted to their peculiar situation. Parliament, indeed, contemplated the erection of corporate towns, with the power of making bye-laws, for remedying this inconvenience ; but on attempting to carry this design into effect, unforeseen obstacles were encountered. It was found altogether impracticable to reconcile the contradictory wishes and recommendations of the parties who would have been more immediately affected by the measure ; and it became evident that the
1 Reprinted from Com. Pap. No. 704, parinted 7th August, 1832.
boon which it was proposed to confer would be received by a great body of the inhabitants, not as an act of grace, but as an infringement of their rights, into whatever form the intended charters might have been thrown. The consequence was, that His Majesty became practically unable to execute the trust which Parliament had confided to him.
The necessity of some provision for regulating the internal concerns of Newfoundland by enactments adapted to the peculiarities of their local position became however daily more and more evident. Carrying with them from this kingdom the law of England, as the only code by which the rights and duties of the people in their relations to each other, and in their relation to the State, could be ascertained, it was obvious, as soon as the colony began to assume a settled form, that the adaptation of that code to the various exigencies of the local society was a task demanding the exercise of much reflection and caution ; that many of its provisions were entirely inapplicable to the wants of a population so peculiarly situated ; and that many more could be applied only by a distant and uncertain approach to the original standard. Hence it occurred that, in the administration of the law, the judges virtually assumed to themselves functions rather legislative than judicial ; and undertook to determine not so much what the law actually
was, as what, in the condition of Newfoundland, it ought to be. For this assumption of power no censure attaches to those learned persons ; without any positive rule of decision, nothing remained for them but to engage in such an inquiry ; yet the practical inconvenience was not the less urgent, nor the anomaly the less glaring.
It was not, however, merely in the absence of rules, which this latitude of judicial interpretation might supply, that the public detriment was sustained. There were still wanting other regulations, which no judge could either invent or enforce. Especially in whatever related to police and internal improvements demanding the co-operation of different persons, nothing could be carried into effect, which any individual found an adequate reason for opposing, or which he opposed from mere caprice. I find that in a matter so trifling in appearance, and yet affecting the comforts of so many, as the prevention of domestic animals wandering at large through the country, an earnest application was made to His Majesty's Government to obtain an Act of Parliament for the redress of the grievance endured by the colonists. Although it was thought improper to encumber the British statute-book with such provisions, yet it was fully admitted that they could be supplied by no other authority ; and the application itself forcibly illustrated the inconvenience of so remote a society being destitute of any local Legislature.
It may seem, however, superfluous to accumulate reasons in proof of the propriety of establishing in Newfoundland that form of constitution which generally prevails throughout the British Transatlantic colonies ; the difficulty would consist rather in finding valid arguments for withholding it. The reasonable presumption seems to be, that a system of colonial government which has been attended with so many advantages in British North America, would produce similar benefits at Newfoundland, if transferred to that settle-
ment. I do not indeed mean to deny that some considerable inconvenience has occasionally resulted from the adoption, in those dependencies of Great Britain, of constitutions modelled into a miniature resemblance of our own ; but I know not what is the system of which the same might not be truly asserted. It is sufficient to say of the scheme of internal polity in force in Nova Scotia and New Brunswick, that in all the colonies to which it has been extended, it has invariably secured the attachment of the people, by giving them a large share in the management of their own affairs ; by affording an open field for the free exercise of talents and public spirit ; by providing honourable ambition with a legitimate object and reward ; by insuring immediate and careful attention to the various exigencies of society and by promoting a frugal and judicious administration of public affairs. With the single exception of those colonies in which the people are separated from each other by distinctions analogous to those of caste, representative Assemblies are not only recommended by abstract considerations drawn from the genius and principles of our own Government, but by a long course of experiments pursued under a great variety of circumstances, but still leading to the same general result.
In advising His Majesty to convene an Assembly from among the inhabitants of Newfoundland, I have therefore not yielded myself to the guidance of any improved theory, but have simply extended to another of the colonial possessions of the Crown principles which have been elsewhere brought to the test of repeated and successful experiment. Yet I do not conceal from myself, nor wish to deny, that the duty which you will have to perform will be attended with some difficulty, and that you will have large scope for the exercise of circumspection and industry. In the first execution of such a design, many questions will probably arise which it were impossible to anticipate distinctly. From the novelty of the duties cast upon them, and from their inexperience in civil business of that nature, I can foresee that the returning officers, the voters, and the members of Assembly, may all in some instances misapprehend the functions which they will have to discharge, or the proper mode of proceeding for the methodical and accurate discharge of them. Cautiously abstaining from the appearance of usurping any undue authority over matters properly falling within the cognizance of the Assembly, you will yet be prompt to afford to all parties whatever counsel or assistance you can render them, to obviate difficulties of this nature. It cannot be made too apparent that the boon which has been granted is seconded by the cordial good will and co-operation of the Executive Government, and that the House of Assembly is regarded, not as a rival power, but as a body destined to co-operate with yourself in advancing the prosperity of the settlement.
For your own guidance it may be right to observe, that colonial assemblies, as they derive their general form from the model of the British House of Commons, so they have drawn their rules and system of procedure from the same source. The distinctions are of course both numerous and important, and grow out of the dissimilarity of the circumstances of the representative bodies of a small colony and of an extensive kingdom ; but in general the analogy
is maintained, and therefore the laws and rules of Parliament, as modified by the exigencies genies of the case, may be taken as the safest guide for the conduct of the Council and Assembly, and for your own proceedings towards them.
As soon as conveniently may be after your arrival in Newfoundland, you will convene the Council, according to your general instructions, and arrange with them the whole course of proceedings to be adopted for giving effect to so much of those instructions as relate to the convoking the Assembly. Especially you will consider the proper forms of the writs to be addressed to the returning officers, the proper places for holding elections, the most convenient times at which they can take place, the necessary arrangements for the reception and accommodation of the legislative body at the town of St. John's, the most convenient method of opening the first session of the General Assembly with appropriate and decorous solemnities ; and, above all, the topics to which their attention should in the first instance be directed.
In conformity with the precedents in use on similar occasions, a proclamation has been approved declaratory of the future system of government to be observed in the colony. This proclamation you will cause to be circulated in the most public manner as soon as conveniently may be after our arrival.
It has for the present divided the country into electoral districts, and has determined the number of members who are to be returned for each. These, however, are topics on which it is very probable that the information I have been able to acquire in this kingdom may be erroneous or defective. Any other division of the country which may be more generally convenient, and any other arrangement of the number of representatives for different districts, which the Council and Assembly may deem more advantageous, will be the fit subject of legislative enactment. No change in the constitution of the House, or in the total number of members, can however be effected, except with His Majesty's previous approbation, and in the manner indicated in your general instructions.
In accordance with the uniform course of precedents, your Commission constitutes a Council which will participate with the Assembly in the enactment of laws. It is not, however, to be denied that this part of the established system of colonial legislation has been practically found to be attended with some serious difficulties. The members of Council, deriving their authority from the Royal Commission, have not seldom been regarded with jealousy and distrust by the great body of the people. Their elevation in rank and authority has but too often failed to induce a corresponding degree of public respect. Even the most judicious exercise of their powers has occasionally worn the semblance of harshness when opposed to the unanimous, or the predominant opinions of those to whom the colonists looked with confidence as their representatives. The Councils, it must be confessed, have not uniformly exerted themselves to repel, or to abate, this prejudice. The acrimony engendered by such disputes has sometimes given occasion to an eager assertion of extreme rights on the part of the Council, and to a no less determined denial of their necessary and constitutional privileges on the part of the Assembly. The
Councils have also been employed as instruments for relieving Governors from the responsibility they ought to have borne for their rejection of measures which have been proposed by the other branch of the Legislature ; and have not seldom involved them in dissentions which it would have been more judicious to decline. Some of the principal inhabitants of the colony, as well as the chief officers of the local Government, being usually members of the Council, are removed from the prospect of obtaining seats in the House of Assembly. Even in colonies in which there is a larger society, and a greater number of proper persons to become members of the Legislature than in Newfoundland, considerable inconvenience has been found to result from raising to the rank of councillors the leading members of the Assembly, and thereby losing their services in that body. The want of any member competent to explain or vindicate the course pursued, by the executive authorities has been still more severely felt : measures have not unfrequently been misunderstood, and it has happened that a trifling misconception, which a few words of timely explanation would have removed, has grown into a serious and embarrassing controversy. The effect of the institution, therefore, is too often to induce a collision between the different branches of the Legislature, to exempt the Governor from a due sense of responsibility, and to deprive the representative body of some of its most useful members. Yet the cornpensation which might atone for these evils is not obtained, and the Council does not assume in the colony a position, or an influence analagous to that of the House of Peers, because entirely destitute of that hold on public opinion which the property and independence of its members, as well as the antiquity of the institution itself, confers upon the peerage of this country.
Adverting to these considerations, and to the legislative history of the British North American and West Indian colonies ; I should regard with satisfaction any arrangement which should consolidate the Council and the Assembly into a single House, in which the representatives of the people would be met by the official servants of the Crown. An example of this form of government exists in British Guiana, and is found to possess in practice many of the advantages which it promises in theory, by casting upon the Governor an undivided responsibility as often as he adopts or rejects the proposals of the legislative body, and by securing to them all the information and asistance which can be rendered by members officially conversant with the various subjects brought under their consideration. This, however, is a system which prevailed in Guiana before the conquest of that settlement by Great Britain, and which, I apprehend, His Majesty could not establish by the exercise of his prerogative in Newfoundland. If, however, the Council and Assembly as established by your Commission and instructions should concur in the view which I have taken of this subject, and should be disposed to pass a Bill for uniting the two Houses, with a clause suspending the operation of the law, for the signification of His Majesty's pleasure, you will, on His Majesty's behalf, assent to any such Bill. Should the design be entertained, I think that the Colonial Secretary, the Attorney-general and the chief officer of customs would be the most proper persons to hold seats in the Assembly,