Harold William Vazeille Temperley.

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which pass the real condemnation on the Single-
Chamber system.

* These instances are mentioned by Mr. J. A. R. Marriott,
Second Chambers, Oxford, 1910, pp. 27-47, 2O 4-



COLONIAL UPPER CHAMBERS 35



II. THE UPPER CHAMBERS OF THE
ENGLISH COLONIES.

England has granted to some score of her
Colonies that complete system of local autonomy
which is known as Responsible Government.
Technically the term means that the Colonial
Executive is responsible to the party majority in
the Lower or Popular Chamber of the Colonial
Legislature, and resigns on being defeated by it;
as the colonials themselves elect their Popular
Chamber, they indirectly elect and control their
Executive Ministry. But this principle impltes
only Parliamentary responsibility, there is also
Cabinet responsibility; the individual ministers of
a colonial cabinet are united, and each is respon-
sible for the acts of the other, so that the defeat of
the measure of one minister enforces not only his
resignation, but that of the whole Cabinet as well.
The distinction is an important one for, while
Parliamentary responsibility exists in many coun-
tries, it is not always joined with Cabinet responsi-
bility. But both exist in all the self-governing
colonies; everywhere the Cabinet acts, votes, lives
and dies as one man ; everywhere its existence
depends on the preservation of its majority in the
Popular Chamber ( 4 ).

D2



3G SENATES AND UPPER CHAMBERS

The Three Groups.

The English Colonies endowed with Responsible
Government may be divided into three groups :

1. The Australasian comprising New South
Wales and Victoria which obtained Responsible
Government in 1855; South Australia, 1856;
Tasmania, 1856; Queensland, 1859; an< 3 West
Australia, 1890. All these were united tin the
Australian Federal Commonwealth in 1901, though
each component state retained large independent
powers. In this group, for convenience sake, we
may reckon New Zealand, which received Respon-
sible Government in 1852, but which has not
entered the Australian Federation. It is here that
we find the contests between the two Chambers to
have been most bitter, and the provisions for
avoiding deadlocks to be most frequent.

2. The Canadian. By the Act of 1791 the two
provinces of Ontario and Quebec were separated,
but they were united under the designation of
"Canada," and received full Responsible Govern-
ment in 1840-7; Nova Scotia and New Brunswick
also obtained it in 1847, Prince Edward Island in
1851. All these were eventually united in the
Federal Dominion of Canada, during the years
1867-73, while the province of "Canada" was
again divided into two, Ontario and Quebec.

During the years 1867-73, all these provinces
were united in the Federal Dominion of Canada.
Since the Federation, all the component provinces
have abolished their Upper Chambers, except Nova
Scotia and Quebec. Four new provinces have



COLONIAL UPPER CHAMBERS 37

since been formed in the Federation, and in all of
them the system of single-chamber government now
prevails.* Newfoundland may be reckoned in this
group, though it is excluded from the Federation.
It received Responsible Government in 1855, and
possesses a two-chamber system. The relations
between the Chambers in the three bicameral states
of this group have been harmonious since the
granting of Responsible Government.

3. The South African. The different Colonies
received Responsible Government in the following
order Cape Colony (1872), Natal (1893), Trans-
vaal (1906), Orange River Colony (1907). All
were united in the South African Federation by the
Act of 1909, and as that Act is now in operation,
the Upper Chambers of all are abolished. In the
Transvaal and the Orange River constitutions the
most careful provisions for avoiding deadlocks be-
tween Upper and Lower Chambers were made, but
in this matter their constitutions reflect less their
own experience than that of our first group, the
Australasian.

In marked contrast with the American States,
the political growth of the English Colonies has
been organic and natural. They have shown few
striking applications of great political principles,
and they have allowed political forces to develop
along the line of least resistance, undeterred by

* The new provinces are British Columbia (1871), Manitoba
(1870), Alberta and Saskatchewan (1905); each received Respon-
sible Government at the date given. Manitoba tried an Upper
Chamber for a short time, but speedily abolished it (1876).



38 SENATES AND UPPER CHAMBERS

political theories. They do not, for example, like
the American States, criticize Single-Chamber
government in deference to theories ; it is in defer-
ence to facts that their endorsement of the bicameral
system is a somewhat grudging and ungracious
one. For the same reason they abound in instruct-
ive concrete examples as to the working of political
machinery ; they supply instances of Upper Cham-
bers that are badly composed and that are well
composed ; of how to draw the line of demarcation
between the two Houses strictly and how to draw
it loosely; and they present two totally different
methods for solving the problem of deadlocks
between Upper and Lower Chambers. Generally
speaking, the resemblance of their constitutions to
that of England is extremely close, though their
constitutions are everywhere written, and their
Upper Chambers are nowhere hereditary. While
it has been found necessary to embody their con-
stitutions in definite written instruments or charters,
great care has been taken to allow of freedom and
flexibility for subsequent development, while powers
of changing the constitution from within have
usually been granted ( 5 ). Wherever Responsible
Government prevails in the Colonies, it is now
understood, as in England, that the Executive
Cabinet depends for its existence upon the
numerical majority of the Lower Chamber. The
Colonial Governor is the King writ small, the
Colonial Ministers are dwarfs copied from the
giants at St. James's, the Lower Chamber is a
cottage fashioned after the palace of Westminster.



COLONIAL UPPER CHAMBERS 39

Only in the matter of the composition and of
the powers of the Upper Chambers has it been
found necessary to break new ground everywhere,
and to try new political devices. The fact that
it was found needful to create Upper Chambers
at all is in itself of significance, for it is no
explanation to say that they were established in
the Colonies as a matter of tradition. It may, in-
deed, be that we established them for the same
reason as the Italian says per Baccho, and that an
Upper Chamber in the Colonies is as meaningless
a repetition as this two-thousand-year-old oath.
But the oldest and blindest habits admit of ex-
planations, and though Upper Chambers in the
Colonies may have been established in their out-
ward framework for one purpose, they have been
used and justified for another. A succeeding
generation has interpreted them according to its
own ideas or twisted them to its own purposes, and
it is in tracing these deviations from their original
objects that the interest of our study lies.

A. The establishment of the bicameral sy stem-
in the Colonies.*

The first necessity is to ascertain the objects of
the Englishmen, who were primarily responsible

* The two branches of Colonial Legislature are usually termed
the Legislative Council and Legislative Assembly respectively.
But as the term Council may suggest an executive Cabinet to
English readers I adopt the expressions Upper and Lower
Chamber throughout. My plan is to sketch the general types>
but specific details as to each Colonial constitution will be found
in Tables I. -I I.



40 SENATES AND UPPER CHAMBERS

for the creation of the Colonial Constitutions. The
most important period lies between the years 1846
and 1860, during which timeeleven Colonies received
Responsible Government upon lines approved
by the statesmen of Downing Street. The general
policy directing these grants was laid down by
Earl Grey (Secretary for War and the Colonies,
1846-52), it was inspired to a large degree by Whig
and Benthamite traditions, and was not sub-
stantially altered by his successors. The period
was one differing profoundly in constitutional ideas
from those in which we now live, an age in which
the statesmen generally showed narrow individual-
ism, adhered rigidly to political and constitutional
dogmas, and displayed a great dread and distrust
of the "vague, irresponsible multitude." Earl
Grey embodied these tendencies in himself and in
his policy, and never wearied of proclaiming the
danger of yielding to the rash, half-formed wishes
and evanescent waves of public feeling. He and
his contemporaries had got beyond the conception
that an aristocracy was essential to every kind of
political community; after the humiliations of 1832,
the Upper Chamber in England had been taught
by the Duke of Wellington that its existence de-
pended on its acquiescence in the new order of
things, and its general subservience to the Com-
mons had become extreme. The House of Lords
was regarded as representative of a hereditary
class, and therefore as unlikely to interpret the
opinion of the whole nation so well as did the
Commons. But while both the Whig statesmen



COLONIAL UPPER CHAMBERS 41

and those of the more advanced Cobdenite school
felt that the existing Upper Chamber in England
was unsatisfactory in its composition, and held
that its powers might well be limited, they were
strongly of opinion that it was desirable to have
some check on the excesses of the democracy.
They greatly feared that the Commons might give
way to the pressure of excitable mobs of their con-
stituents, and that revolutionary measures might
be forced through the Lower House, to the detri-
ment of the community as a whole. Their ideas
were typically Whig indeed, exactly those of
Hamilton, the American, above quoted (p. 15) : if
there was to be an Upper Chamber at all, they did
not desire that it should represent a class or the
hereditary interest only, but that it should represent
the interests of the whole nation. The Upper
Chamber should thus be prepared sometimes to
oppose the numerical majority of the Commons or
of the whole people, when one or both had tem-
porarily lost their reason ; it was then its duty to
make them pause till that reason w 7 as restored.
Under these circumstances, the characteristic Whig
method of improving the composition of the Upper
House was to create Life-Peers, who should act as
a breakwater against the restless and turbulent sea
of democracy. This policy the Whig Government
of Lord Palmerston actually attempted to carry
out in regard to the English Upper House in 1856
by using the royal prerogative to create Baron
Parke a peer only for life ( 6 ). In deference to the
storm of opposition raised and the quotation of



42 SENATES AND UPPER CHAMBERS

precedents, they dropped the scheme in England,
and with it the whole policy of gradually filling the
Upper House with Life-Peers. In the Colonies,
however, the Whig statesmen had a free hand, and
could apply their principles with more consistency
and success.

There can be no doubt that Earl Grey and his
successors believed a bicameral system to be most
desirable in the abstract, but they were open to
the arguments of practical experience, and attached
considerable importance to the ideas of the
colonists themselves. These opinions seem to
have varied a good deal in the matter, no doubt
under the influence of practical considerations. In
the Canadian Provinces the general type of govern-
ment had been a representative system of two
Chambers, but the Governor appointed his ministers
independently of either, and retained complete
executive control. The only alteration made by
Responsible Government was to transfer the control
of the executive to the majority in the Lower
Chamber. Opinion in the Canadian Provinces
does not appear to have been very favourable to
the bicameral system though it was divided on the
point.* It would, however, have been a strong
step for the Home Government to abolish a sys-
tem that already existed throughout Canada, and
Lord Durham,; the greatest of all colonial statesmen,
appears to have been against so violent a course
in North America. In the Australasian provinces,
however, the system of government was different.
* Vide Appendix IV.



COLONIAL UPPER CHAMBERS 43

Here the Governor either governed with an execu-
tive council as an absolute autocrat, or controlled
the executive on the advice of a Single Chamber,
known as the Legislative Council. This body was
partly elected by a limited franchise, partly nomin-
ated by the Governor, and the result was a uni-
cameral system. A number of petitions in favour
of retaining this system in a modified form reached
Downing Street from the Colonies during the
period of constitutional reconstruction, and the
argument for a Single Chamber seemed to be
strong. Practical experience of the difficulty of
constituting Upper Chambers in the Australasian
colonies even induced Earl Grey himself to modify
his bicameral views ( 7 ). He declared their danger
to lie in the fact that the division of the legislature
into two branches withdrew some of the most able
and intelligent men from the Lower Chamber "in
a community not numerous enough to furnish
more than a few persons qualified for such duties."
Even if it did not do this the Upper Chamber
might be composed of mere party men without
ability, in which case it must become discredited
and weak. He was therefore led into a practical
advocacy of Single Chambers for the Colonies ( 8 ).
"7 noiv consider it to be very doubtful, at least,
whether the Single Legislature (Chamber) ought
not under any circumstances to be preferred. If
an Upper Chamber could be constituted in such a
manner as to have substantial weight and author-
ity, and to be thus capable of exercising a salutary
check upon the representative Assembly, while, at



44 SENATES AND UPPER CHAMBERS

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 Legis-
lature could not well be contested. But to accomplish
this is a problem not yet solved by any Colonial
Constitution of which I am aware "( 9 ). Earl Grey
wrote this in 1852, and he was by no means alone
in this advocacy of Single-Chamber legislatures
for the Colonies. A Report of the Committee of
Trades and Plantations (May i, 1849) actually re-
commended the establishment or retention of
Single-Chamber legislatures in New South Wales,
Victoria, Tasmania and South Australia, in spite
of the fact that they thought it "desirable that the
political institutions of the British Colonies should
be brought into the nearest possible analogy to the
Constitution of the United Kingdom" ( 10 ). It is
true that this plan was associated with a scheme
for the possible Federation of Australia, but such
Federation could only have been accomplished on
petition of at least two of the colonies affected.
Hence the Committee was fully aware that their
scheme might involve the establishment of Single-
Chambered legislature in each of four colonies,
which might possibly remain permanently separated
and independent of one another. The Constitution
Act for Australia of 1850, however, prevented any
undue interference on the part of the Home
Government, and permitted the various Austra-
lasian colonies practically to amend their Con-
stitutions, to endow themselves with Responsible



COLONIAL UPPER CHAMBERS 45

Government, and thus to shape their own destinies.*
It is singular that the first use they made of their
freedom was to adopt the bicameral system with
unanimity. (New Zealand had already obtained
two Chambers by its Act of 1852.) The fact of
this complete agreement among the Colonies as to
the advantage of an Upper Chamber is the more
remarkable because the statesmen of Downing
Street, far from influencing them unduly in that
direction, may even be said to have discouraged
them. When Englishmen abandoned or forgot their
political traditions the colonials remembered them.
As all the Canadian Colonies already possessed the
Two-Chamber System, it is not surprising that they
should retain them on the adoption of Responsible
Government ; but the Australian Colonies and New
Zealand adopted two Chambers only after some
actual experience of a unicameral system ( n ). Their
action must be regarded as due to a natural dis-
trust of anything advocated by Downing Street, to
a vague sense of tradition, and to one of these
happy unconscious accidents which settle constitu-
tional problems for Englishmen, rather than to
any resolute and avowed belief in the essential need
of a bicameral system. Subsequent experience and
practice in the Upper Chambers of those colonies,
which possess larger populations and more settled
policies than these of which Earl Grey spoke,
enable us to estimate the true value of his judg-

* Between 1855-9 New South Wales, Victoria, South Australia,
Tasmania, Queensland, New Zealand all received Responsible
Government on models largely drawn up by themselves.



46 SENATES AND UPPER CHAMBERS

ment, when he wrote in 1852 that "the attempts,
hitherto made to create in the Colonies a substitute
for the House of Lords, have been attended with
very moderate success" ( 12 ). The answer is that
much has depended on circumstances, on the
method of constituting the Upper Chamber, and
on the temper of the people in the different Colonies.
Everywhere, however, the dream of creating a
serene and dignified Senate, indifferent to party or
mob-clamour, has disappeared.

Since the granting of Responsible Government
the Canadian Colonies have never shown much en-
thusiasm for their Upper Chambers, which have
been abolished in four of the provinces. In the
beginning the Australasian Colonies adopted two
Chambers with unanimity, but subsequent experi-
ence qualified their enthusiasm. In our third
group, the South African Colonies, the attachment
to the bicameral system has, from the first, been
singularly lukewarm. Cape Colony adopted two
Chambers in the early fifties, and appears to have
retained them without much protest after the
introduction of Responsible Government (1872).
But the Cape Upper Chamber, being elective,
threatened to challenge the supremacy of the Lower
House. Its example and claims were not encour-
aging, and they seem to have impressed the other
Colonies in South Africa. When Natal petitioned
for Responsible Government she made a deter-
mined effort to get rid of an Upper Chamber alto-
gether, and only yielded to the strong opinion of
the Home Government in the matter (1893). It is



COLONIAL UPPER CHAMBERS 47

quite clear that the Upper Chambers in the Trans-
vaal and Orange River Colony are only temporary
ones in their present character, and it is by no
means certain that it was not intended that they
should be abolished altogether in the future. As
for the Federal Senate of South Africa the Con-
stitution gives it no special protection after ten
years; and "furthermore (this is an open secret)
there was a strong party in the convention in
favour of doing without it altogether." * The feel-
ing here shown is more significant than any of the
other instances adduced. Whatever may have been
thought of Single-Chamber Government in a
Unitary State, it had always been previously con-
sidered that an Upper Chamber was indispensable
for a Federal State. If the collective wisdom of
South Africa could for a moment seriously con-
template doing without one in the Federal Con-
stitution, it is quite evident that it absolutely
condemns the bicameral system for Unitary States,
and in this judgment we see the severest criticism
that the Two-Chamber system has hitherto received.
But in any case the general testimony of our other
Colonies to the worth of the bicameral system must
be regarded as a somewhat ungracious one.f No-
where is the Upper Chamber really imposing in the
Unitary Colonies, in few is it actually powerful, in
many it is regarded as a rather tedious relic of

* Professor J. H. Morgan, letter in Westminster Gazette,
April 16, 1910 ; J. H. Brand, The Union of South Africa,
pp. 68-9. For Natal, -vide n. 4 and Appendix IV.

t Vide Appendix I V. for illustrative extracts.



48 SENATES AND UPPER CHAMBERS

a by-gone age. In Canada and South Africa,
certainly, it is looked upon as an ancestral relative,
whose death would not cause any particular grief
to the Colonies in question, though they do not
care to terminate his existence by speedier means.
The Home Government stands by acting the part
of the family doctor, bidding the eager heirs to
have patience, and meanwhile doing its best to
keep the aged patient alive by cordials and by
encouragement.



B. Composition of Upper Chambers in the
Colonies.

While in Australasia at least, Home Statesmen
did not strive to prevent the creation of Upper
Chambers, they interfered considerably in the way
of influencing or of settling the method of its com-
position ( 13 ). They generally preferred, and some-
times specially insisted on, nominating colonial
Upper Chambers for life. This was partly because
they thought that the system would erect a per-
manent checking Chamber, partly because they
thought that, in case of a deadlock between two
Chambers difficulties could be overcome by in-
creasing the numbers of the Nominee Chamber,
or, as we should say, by "creating peers." This
process could not be applied to an Elective Upper
Chamber, because its numbers were necessarily
limited. Hence the Home Statesmen advocated



COLONIAL UPPER CHAMBERS 49

the Nominated System, not only to ensure stability,
but to give flexibility to the Upper Chamber.
Time and experience have entirely upset both cal-
culations, and the instinct of the colonists, which
usually preferred Elective Upper Chambers, has
confounded the foresight of Downing Street, which
advocated nominated ones.*

In the composition of the Upper Chamber in
the Colonies three methods were open : (i) That of
Heredity; (2) that of Nomination, whether (a) for
life, or (b) for a term of years ; (3) that of Election.
From what has already been said it will be seen
that the Home Statesmen of the fifties had dis-
regarded the first method as impossible. This ex-
pedient had been seriously entertained as a method
for constituting the Upper Chambers of Canada in
1791, but was laughed out of court when proposed
for New South Wales in the fifties ( 14 ). Between
the second and third methods there was, however,
naturally much hesitation. The principle of the
Governor nominating the members of Upper
Chambers for life was adopted in the Canadian
group for "Canada" (Ontario and Quebec), f Nova
Scotia and Newfoundland; in the Australasian
one for Queensland, New South Wales and New
Zealand.! In the case of any conflict arising be-

* Vide Appendix V. Nominee versus Elective Upper
Chambers in the Colonies.

tin 1867 the province of Canada was divided into Ontario and
Quebec, and the Upper Chamber abolished in the former, while
life-membership was maintained in the Upper Chamber of the latter.

| Since 1891 in New Zealand the term of membership has
been limited to seven years.
E



50 SENATES AND UPPER CHAMBERS

tween the two Houses there was an obvious danger
th.it the life-members, being irresponsible and irre-
moveable, would be disinclined to give way. It is
clear from Earl Grey's dispatches that he intended
that the Governor should nominate the life-mem-
bers not on his own choice, but "so as to make it
(the body) fairly represent the majority of the
intelligent members of the community " ( 15 ). In
other words apparently the Governor, or Lieuten-
ant-Governor, was to nominate Life-Peers on the
advice of the premier of the executive council, who
himself depended on the party majority of the
Lower Chamber. But, supposing that the party,
after nominating a majority of the Life-Peers, got
defeated and that an opposition ministry were in-
stalled. A deadlock must then almost certainly
take place, for in the absence of immediate
vacancies the members of the Upper Chamber, who
belonged to one party, would strenuously oppose
the Bills sent up from the Lower Chamber by the
other party. Earl Grey laid it down as a principle
that "it is impossible to allow the Legislative
Council to obstruct permanently the passing of
measures called for by public opinion, and sent up



Online LibraryHarold William Vazeille TemperleySenates and upper chambers, their use and function in the modern state, with a chapter on the reform of the House of lords → online text (page 4 of 25)