Proposed Political Constitution.
Its Terms.

Early in 1847 the Governor received from the Secretary of State a copy of the Constitution of New Zealand framed by Parliament for the government of the Colony. It had been drafted after two of the fullest inquiries ever made by a select committee of the House of Commons, and the reports of the Committee abound in matter indispensable to the historian and useful to the sociologist. An ordinary Governor, whether he liked the new Constitution or not, would have taken the necessary steps to carry it into effect; but Captain Grey was not an ordinary Governor. He closely examined the Act and found a number of provisions that appeared to him to be highly obnoxious. The Colony was to be divided into two provinces, with a Lieutenant-Governor, appointed in Downing Street. The chief officials of each province were likewise to be appointed in Downing Street. There was to be a Legislature, elected by the local bodies. There was no provision for the representation of the Maoris. The greater part of the administration and apparently the entire legislation were to be made independent of the Governor-in-Chief, who saw himself shorn of three-fourths of his power.

Grey's First Rebellion.

Grey did not act precipitately. He approached Bishop Selwyn and Chief-Justice Martin, and, with his unrivalled powers of persuasion, he can have had little difficulty in convincing these two upright but as yet unsophisticated men that the proposed constitution would place in jeopardy equally the rights of the natives and the independence of the settlers. We do not know what page 52arguments he used. Reviewing the whole subject forty-five years later, he alleged that in 1847 he was actuated by two motives. He believed that the popular sovereignty would be imperilled, and he dreaded the effect upon the natives of a policy that would practically exclude them from all control of the affairs of New Zealand. Whether he also used the argument that the natives' secure possession of their lands would be endangered, we do not know. We may suspect that it was, because this was evidently, as we may judge from their subsequent public action and printed utterances, the consideration that most weighed with both of these just and able men, who were pronounced philo-Maoris. Either they failed to perceive the mixture of selfish ends with loftier motives in the mind of the Governor, or they elected to overlook it. At all events, however it may have been managed, these high officials were gained over, and, with them at his back, the Governor felt strong enough to take one of the boldest steps the Governor of a British colony ever took. He ignored his Instructions, refused to allow the Imperial Act to have the force of law, and suspended the operation of the Constitution.

So, at least, it appears on the face of it, and so the incident is commonly narrated. The real manner of his defiance was less Promethean. Earl Grey's despatch (of December 23,1846) left to the Governor the discretionary power of fixing the date at which he should promulgate the new charter. Of this power Grey prepared to avail himself. In the reply-despatch of May 3, 1847, he stated the chief objection to the new constitution. Eequiring that every elector should be able to read and write the English tongue, it would disfranchise, on its own territory, the entire Maori race, of whom not one was known to the Governor to possess the required qualification. Yet the great majority, taught by a band of devoted missionaries, could read and write the Maori language. Not only so. "In natural sense and ability," the Governor urged, the Maori race was equal to the majority of the European population. And he deprecated the attempt to force on a proud and high-spirited page 53people a form of government that would bring them into subjection to an insignificant minority of European settlers. He would therefore, with the leave of the Secretary for the Colonies, refrain from giving effect to the portion of his Instructions that provided for the creation of representative institutions. All else should be carried out. Even this obnoxious portion he was prepared to put in force, if, after perusing this despatch, Earl Grey still adhered to his resolution. He nevertheless requested that the Instructions should be revoked, if the reasons he had stated should "command the assent of Her Majesty's Government." Thus, in the substance of the despatch there is little, in the manner of it there is not a trace, of the Titanic rebellion with the glamour of which it has dazzled the eyes of posterity.

The Right of Occupancy.

That he cannot have urged to Bishop Selwyn and Chief-Justice Martin, in opposition to the new Constitution, the considerations that had most apparent weight with himself, is manifest from the stand they took and the lines of reasoning they followed, so different are they from his own. He makes no reference to the breach of the Treaty of Waitangi implied and virtually authorised in the Eoyal Instructions. Earl Grey frankly avowed that he "entirely dissented" from the doctrine ''that the aboriginal inhabitants of any country are the proprietors of every part of its soil of which they have been accustomed to make any use, or to which they have been accustomed to assert any title." He proposed to set up district land courts, in which no claim of the natives to lands shall be admitted unless it be proved that they had occupied or been accustomed to enjoy these, "either as places of abode or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life, by means of labour expended thereupon." In reading these instructions, which seem so explicit, the Governor jesuitically professed to assume that, when Earl Grey referred to unoccupied waste lands, he meant unclaimed page 54lands. Yet lie is careful to explain to Earl Grey that the Maoris supported themselves, not only by cultivation, but by digging fern-root, by fishing and eel-catching, by hunting wild pigs " (for which they require extensive runs);" and that to deprive them of the "wild lands" would be to cut off some of their most important means of subsistence.

It was no accusation against Earl Grey, or the directors of the New Zealand Company, who prompted him, that they were unacquainted with the state of countries that were still at the clan stage; not for twenty or thirty years were publicists to learn that in the greatest of British dependencies, where the clan stage is stationary, there is no waste land, properly speaking. "Of uncultivated land there is abundance; but, with some trifling exceptions, the entire country is appropriated and is divided among the different village communities."^* England itself, in so-called Anglo-Saxon times, was covered with a network of such communities. In 1847 New Zealand, so far as it was occupied by the Maoris, was at that stage, and, with similarly trifling exceptions, there was no portion of the land, at least in the North Island, that was not claimed by one or another of the clans.

"What was the value of the claim? In theory, all the most eminent jurists and all the great discovering powers have recognised a "right of occupancy" as inhering in the aboriginal or indigenous possessors of the soil of a conquered country, and such a right can be extinguished only by treaty. In practice, history shows that, in America, at least in later years, the native right of occupancy has been steadfastly set aside by aggressive Governors and Presidents or encroaching Legislatures. In all the records of mankind there is hardly told such a long-drawn-out tragedy as is revealed by Mrs. Helen Hunt Jackson in her work, A Century of Dishonour, where the earnest and accomplished authoress does what Burke declared that he could not do—draws an indictment against a whole people. No such charge can be page 55made against the rulers of New Zealand. The day was to come when a whole province of acknowledged Maori territory was after a protracted war, to be confiscated by right of conquest, and there had previously been numberless disputes in detail, some of them sanguinary, about the possession of this or that portion. Some of the treaties, especially in the South Island, but also in the North, have not been strictly observed. But the alleged right of occupancy has ever been held sacred. Would it have been so held had the principle laid down by Thomas Arnold, and accepted on his authority by Earl Grey, been adopted and acted upon! The historian of ancient Rorne and professor of history at Oxford maintained that such a right is "inseparably united with industry and knowledge''. Wherever these had not been applied, he contended, and Earl Grey agreed with him, that the right lapsed.

The drift of public opinion in the forties was against the contention, and perhaps it was well. Ugly questions were thus not raised, and implacable animosities were not aroused. For one reason or another the Maoris parted with their lands as speedily as the needs of the colonists demanded, and the advance of colonisation did not, as in the United States it did, outstrip the decline of the Native race. In our days the trend of settlement is all the other way, and the Maoris are about to be dispossessed on a large scale in order that their lands may be thrown open to cultivation. It is a consequence of the more strenuous temper of our generation.

Two Philo-Maoris.

Against the principles stated in the despatches of Earl Grey and incorporated in the juridical portion of the new Constitution the two leading men already named took up strong ground. In later days high officials of the Colony seemed always to have an animus against the poor Maoris; in the earlier days they had a pronounced bias in their favour. After Grey himself the Maoris never had better friends than Bishop page 56Selwyn and Chief-Justice Martin. Through long terms of office and protracted lives these eminent men appeared to hold a moral brief for a race which, without their advocacy, would, in New Zealand at least, have been friendless indeed. On this supreme occasion, when the rights and the future existence of the race were at stake, both of them stepped into the breach and hazarded their good name as well as their official position in the defence of the Maoris. Selwyn not only recorded his "formal and deliberate protest" against the principles avowed by Earl Grey; he stated that he was resolved "to use all legal and constitutional measures" to assist the natives "in asserting and maintaining" their "rights and privileges as British subjects." Chief-Justice Martin printed, but did not publish, a pamphlet on England and the New Zealanders. Both were sent to the Secretary for the Colonies by the Governor. If the Bishop's appeal was, like Antigone's, to "the infallible, unwritten laws of Heaven," the Chief-Justice's appeal was to the consensus of jurists. Earl Grey, in his turn, might have appealed to the practice of the United States, which, in those very years, was setting the maxims of its own eminent jurists at defiance.

Two points specially invite notice. Long afterwards, when the disastrous Waikato war was raging, Bishop Selwyn expressed the belief that "the new Constitution" (which was to supersede the rejected Constitution of 1846) was the ultimate cause of the war. He meant, of course, the power conveyed by it to take the lands of the Maoris without the consent of the tribes. It was truly so. The exercise of that power, against which he was now contending, was the real cause of the war.

Next, the Chief-Justice predicted that, if these Royal Instructions were carried out, and the Maoris came to believe that their secure possession of their lands was threatened, "the Christian religion will be abandoned by the mass of those who now receive it.'' The prediction was fully realised only sixteen years later. Selwyn then wrote that the rise and acceptance of the new Hau-Hau or page 57Pai Marire religion (religion of "Good Tranquillity") were the outcome of the aversion of the Maoris for everything English.

A petition, signed by Selwyn, Martin, and many others, and protesting against the Constitution and the Instructions, was presented to the Governor and forwarded by him to the Colonial Office. The Wesleyan Missionary Society in London took the same view. Naval officers, who had been travelling through the native districts, made known the dread of the Maori chiefs at the threatened loss of their lands. All possible influences conspired against the unfortunate measure.

It is indeed doubtful if any proposals emanating from the Government of the Mother-country ever met with such serried opposition. Mr. Rees states, manifestly on authority, that if he had been required to carry the Instructions into effect, Grey would have resigned his office, and the assurance is confirmed by contemporary evidence. According to Bishop Selwyn, Grey assured both Selwyn and Chief-Justice Martin that he "neither could nor would carry them into practice in New Zealand." The other high officers of the Colony were no less determined. The Chief-Justice put forth a keen discussion of their legality and a strong protest against them, and, after flinging this firebrand into the Colonial Office, he declared that it was for the Home Government to determine whether he could fitly retain his office. The Bishop of New Zealand was no less emphatic. "A little more," he said, "and Lord Grey would have made me a missionary bishop, with my path upon the mountain wave, my home upon the rolling deep.'' His clergy were as outspoken as their chief. Earl Grey's despatch, wrote Archdeacon Maunsell, "strikes at the very root of the life and liberty of the aborigines." The only course open to sons of the missionaries would be to leave in sorrow the country which they were civilising and had won for the British.

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Surrender of the Colonial Office.

We need not now hesitate to say that the Governor was wholly in the right. It was a thoroughly bad Constitution. We may go further, and admit that it was better for the Colony, at that stage, to be governed by an enlightened despot than by a packed Legislature. The Colonial Office took the same view. Lord Grey confessed that he was staggered by the fact that no single Maori could read or write the English language. He could not understand that the missionaries should be teaching the natives to read and write their own language instead of that of the English. None the less, he meekly accepted the snub, and even turned the other cheek. He made haste to procure the passing of an Act suspending the Constitution for a period of five years.

The debates that took place in the House of Commons in December, 1847, and February, 1848, were highly flattering to the young Governor. With his habitual exaggeration or malapropism, Disraeli described Mm as being "appalled" by the receipt of the copy of the Constitution, but he lauded the Governor's "discretion and abilities." Lord Lincoln, the future Duke of Newcastle, thought the Act should be repealed, not suspended. Some future notabilities took part in it. A trio of friends, inspired perhaps by common ecclesiastical sympathies— Gladstone, Roundell Palmer, and Cardwell, approved of the Bishop's protest. Earl Grey admitted that the Suspensory Act was "founded almost entirely on the recommendations of Captain Grey,'' who ''so thoroughly understood the position and interests of the Colony." With a comic want of penetration the Secretary of State apologised to the Governor for throwing on his shoulders the burden of personal rule. Next year he was knighted. The force of complaisance could no further go. An act of rebellion has seldom met with such complete success or brought such a harvest of renown to its author.