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The New Zealand Constitution Act [1852]: together with correspondence between the Secretary of State for the colonies and the Governor-in-Chief of New Zealand in explanation thereof

No. 121—Legislative. Government House, Wellington, August 30, 1851

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No. 121—Legislative. Government House, Wellington, August 30, 1851.

My Lord,-Adverting to my despatch, No. 123, of the 24th October, 1850, in which I transmitted, for your Lordship's information, the draft of a Bill for the constitution of Provincial Councils which I intended to introduce into the General Legislative Council of these islands, I have now the honour to enclose that Ordinance in the form in which it passed the Council and received my assent.*

2. In thus transmitting it for the purpose of being submitted for Her Majesty's approval or disallowance, I think it right to make, for your Lordship's information, the following report upon the enclosed measure.

3. In doing so it will however be necessary for me to advert to what took place in 1846, when Parliament passed an Act to make further provision for the government of the New Zealand islands, in conformity with the provisions of which a Charter was issued, and a Constitution conferred upon these islands, regarding the general provisions or details of which, it was, from want of time, not found practicable to afford me any opportunity of making a report or offering any opinion.

4. When that Constitution and the Instructions which accompanied it arrived in the colony, very serious disturbances prevailed; and the native population having for some time previously been in a state of great excitement and rebellion, I thought it would be impru&& to attempt immediately to introduce certain Transactions in the Charter, Constitution, and Instruction, which had been sent out to me, and I reported to your Lordship accordingly. With a promptitude and generous confidence in my prudence and judgment for which I shall always feel grateful, page 34 your Lordship acceded to my views; and upon your recommendation Parliament passed an Act in 1848, suspending for five years the constitution which bad been bestowed upon these islands, and further authorizing me, during those five years, to constitute in New Zealand Provincial Councils, to be composed either wholly of elected, or partly of appointed and partly of elected members, as might be thought most desirable.

5. The suspending Act of Parliament not wholly repealing, or even altering, the constitution which, under your Lordship's directions, had been conferred upon these islands, but only deferring its introduction for five years, I felt that it was my duty to your Lordship, who had acted with such generosity and confidence towards myself, to be careful to exercise the powers conferred upon me by Parliament with regard to the creation of Provincial Councils in such a manner as should neither defeat nor even embarrass, but rather aid in the introduction (at the termination of the five years for which it was suspended) of that form of constitution which that officer of Her Majesty's Government, under whose direct orders I was serving, and upon whom the responsibility of advising the Queen upon such subjects rested, had deemed most fitted for the present condition of these islands, and which constitution was, moreover, in very many of its main features, one well adapted to promote the prosperity of New Zealand.

6. I also felt that I had a peculiar and very delicate duty to perform towards Parliament, because the powers with which I was intrusted by the Act 11 Vice., cap. 5., of constituting Provincial Councils, were very great powers, such as I believe had before that time rarely, if ever, been entrusted to a Colonial Governor; and Parliament, at the same time that it had intrusted me with these ample and unusual powers of legislation on such important subjects, was itself legislating upon the same subjects, we reference to colonies in the immediate vicinity of the lands. I judged therefore that it was my duty, as officer of a great Empire, intrusted with high powers, not to attempt rashly to set up my judgment against the opinions of the majority of the great council of that page 35 Empire, and by legislating in a manner different from that which they thought proper to pursue in immediately neighboring colonies, create, perhaps, great embarrassment and much discontent. But I thought it rather my duty, in any Ordinances which I might pass for the creation of local legislatures, to act, iri as far as the circumstances of this country would permit, in perfect accord and harmony with the system which Parliament might pursue; and then, in reference to any other changes I might deem necessary, to make recommendations on the subject to your lordship, in order that they might be submitted for the consideration of Parliament.

7. In all proceedings, therefore, which I have taken in reference to the changes I have introduced into the constitution of this country, I have held the two foregoing principles in view; although I have still so framed my measures as to make gradual advances towards what, in my own opinion, would be the most perfect form of constitution which could be bestowed upon New Zealand.

8. The recent dispatches I have received from your Lordship having convinced me that your desire to promote the welfare of the inhabitants of these islands and the interests of the Empire is so strong, that you are ready instantly to forego the form of constitution proposed by your Lordship if a better one can be presented for your consideration, and as you have invited the full expression of my views upon the subject, I now, although with a sense of great diffidence in opposing my own views to those of your Lordship and Parliament, proceed, in transmitting the enclosed Ordinance, to make a general report upon the form of institutions which a long consideration of the subject has made me deem best adapted to the circumstances of these islands, and to show how I hoped that the Ordinance now transmitted might ultimately form a component, and perhaps the most important part of such institutions.

9. In making such a report as I have above indicated, I shall assume, in conformity with the terms of your Lordship's dispatch, No. 23, of the 19th February, 1851, that (although they have not yet reached me) Instructions have been issued to me by her Majesty, page 36 leaving me unfettered discretion as to the number of provinces into which New Zealand should be divided; and I shall further report fully the mode in which I intend temporarily to give effect to those instructions and to the enclosed Ordinance, so that my proceedings may, in as slight a degree as possible, interfere with any arrangements which Her Majesty's Government may see fit to make regarding the form of constitution for New Zealand, whether they may either adopt in whole or in part, or entirely reject, the plan of institutions embodied in the enclosed Ordinance and this report.

10. In order that the present state of these islands, and the condition of the several races inhabiting them, for whom representative institutions are to be provided, may be clearly understood, and that the subject may stand in a complete form, it will be necessary for me to incorporate into the present despatch, with such modifications as carry the subject up to the present time, several of the first paragraphs of a despatch, number 93, which I addressed to your lordship upon the 9th of July 1849.

11. The group of colonies comprised in the New Zealand islands are composed at present of what may be termed nine principal European settlements, besides smaller dependencies of these. The largest of these settlements contains about nine thousand (9,000) European inhabitants; and their total European population may be stated at about twenty-six thousand souls. These settlements are scattered over a distance of about nine hundred miles of latitude; they are separated from each other by wide intervals; and communication, even for persons on horseback, exists only between three of them. Their inhabitants are chiefly British subjects, but there are amongst them many Americans, French, and Germans. The majority of them have never been trained to the use of arms. The settlers, both in the main colonies and the subordinate dependencies, have occupied the country in so scattered and irregular a manner, that it would be found impossible to afford them efficient protection. They are generally without arms, and would probably be deprived of them by the aboriginal population if they possessed them at any remote stations.

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12. The wide intervals between these European colonies are occupied by a native race, estimated to consist of one hundred and twenty thousand (120,000) souls, a very large proportion of whom are males capable of bearing arms. These natives are generally armed with rifles or double barreled guns; they are skilled in the use of their weapons, and take great care of them; they are addicted to war, have repeatedly in encounters with our troops been reported by our own officers to be equal to any European troops, and are such good tacticians that we have never yet succeeded in bringing them to a decisive encounter, they having always availed themselves of the advantage afforded by their wilds and fastnesses. Their armed bodies move without any baggage, and are attended by the women, who carry potatoes on their backs for the warriors, or subsist them by digging fern-root, so that they are wholly independent of supplies, and can move and subsist their forces in countries where our troops cannot live.

13. I should here correct a popular fallacy, which, if ever acted upon, might prove ruinous to these settlements. It has been customary to compare them to the early American colonies, and the natives of this country to the North American Indians. There appears to be no analogy between the irregular manner in which these islands were partially peopled by whalers and persons from all portions of the globe, and the pilgrim fathers who founded the early settlements in America; and I have been assured by many excellent and experienced officers, well acquainted with America and this country, that there is, in a military point of view, no analogy at all between the natives of the two countries; the Maories, both in weapons and knowledge of the art of war, a skill in planning, and perseverance in carrying out, the operations of a lengthened campaign, being infinitely superior to the American Indians. In fact there can be no doubt that they are, for warfare in this country, even better equipped than our own troops.

14. These natives, from the positions which they occupy between all the settlements, can choose their own points of attack, and might even so mislead the page 38 most wary government as to their intended operations, as to render it extremely difficult to tell at what point they intended to strike a blow. They can move their forces with rapidity and secrecy from one point of the country to another; whilst, from the general absence of roads, the impassable nature of the country, and the utter want of supplies, it is impossible (except in the case of some of the settlements where good roads have been constructed) to move a European force more than a few miles into the interior from any settlement.

15. The natives, moreover, present no point at which they can be attacked, or against which operations can be carried on. Finding now that we can readily destroy their pas or fortifications, they no longer construct them, but live in scattered villages, round which they have their cultivations, and these they can abandon without difficulty or serious loss, being readily received and fed by any friendly tribe to whom they may repair. They thus present no vulnerable point. Amongst them are large numbers of lawless spirits, who are too ready, for the sake of excitement and the hope of plunder, to follow any predatory chief. To assist in anything which might be regarded as a national war, there can be little doubt that almost every village would pour forth its chiefs and its population.

16. With these characteristics of courage and warlike vagrancy, the Maories present, however, other remarkable traits of character. Nearly the whole nation has now been converted to Christianity. They are fond of agriculture, take great pleasure in cattle and horses; like the sea, and form good sailors; have now many coasting vessels of their own manned with Maori crews; are attached to Europeans, and admire their customs and manners; are extremely ambitious of rising in civilization and of becoming skilled in European arts; they are apt at learning; in many respects extremely conscientious and observant of their word; are ambitious of honors, and are probably the most covetous race in the world. They are also agreeable in manners, and attachments of a lasting character readily and frequently spring up between them and page 39 the Europeans. Many of them have also now, from their property, a large stake in the welfare of the country; one chief has, besides valuable property of various kinds, upwards of five hundred pounds (£500) invested in Government securities; several others have also sums of from two to four hundred pounds (200 to ,£400) invested in the same securities.

17. A consideration of these circumstances will, I think, lead to the conclusion that any attempt to form, in those portions of these islands which are densely peopled by the natives, an ordinary European settlement, the inhabitants of which produced all they required, and were wholly independent of the native race, must end in failure. The natives in the vicinity of such a settlement, finding themselves excluded from all community of prosperity with its inhabitants, would soon form lawless bands of borderers, who, if they did not speedily sweep away the settlement, would yet, by their constant incursions, so harass and impoverish its inhabitants that they would certainly soon withdraw to the neighbouring Australian settlements, where they could lead a life of peace and freedom from such incursions. Upon the other hand, however, it would appear that a race such as has been described could be easily incorporated into any British settlement, with mutual advantage to both races; the natives supplying agricultural produce, poultry, pigs, and a constant supply of labour (although yet for the most part rude and unskilled); whilst, upon the other hand, the Europeans would supply the various manufactured goods required by the natives, and provide for the manifold wants created by their increasing civilization. Such a class of settlements might easily grow into prosperous communities, into which the natives, with characters softened by Christianity, civilization, and a taste for previously unknown luxuries, would readily be absorbed. This process of the incorporation of the native population into the European settlements, has, accordingly, for the last few years, been taking place with a rapidity unexampled in history. Unless some sudden and unforeseen cause of interruption should occur, it will still proceed, and a very few years of continued peace and prosperity would suffice for the entire fusion of the two races into one nation.

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18. These observations on the present relative positions of the European and native populations of these islands apply principally to the northern island of New Zealand; the European population in the Middle Island already probably considerably outnumbering the natives who inhabit that island.

19. In considering the geographical and political positions, in relation to each other, of the several settlements occupying the Northern Island, it may be stated that the centre of that island is occupied by a mountain range, the highest point of which is probably about ten thousand (10,000) feet above the level of the sea, and is covered with perpetual snow, having as one of its peaks a volcano of boiling water. The snows which cover this range form perpetual springs from which rivers of cold and pure water are thrown off in all directions to the coast; whilst the volcano in the same range constitutes a fountain of perpetual supply to two nearly continuous chains of boiling springs, which run from the mountain range to the north-eastern coast of the island.

20. The central mountain range throws off also spurs or ridges of very difficult mountainous country in various directions to the coast, the valleys between which ridges, generally mere gorges at the hills, become fertile and extensive plains near the coast, and form the channels of the Thames, the Waikato, the Mokau, the Whanganui, the Rangitikei, and other minor streams. These subsidiary mountain ridges or spurs thrown off from the main range are, for the most part, where roads have not been constructed across them, impassable even for horses; so that no overland communication, except for foot passengers, can be considered as yet existing between the several principal settlements.

21. In the plains in the Northern Island through which the above named rivers flow, and at points where the coast line indents these plains with roadsteads or harbours, are situated the principal European settlements; whilst the Maori population inhabit the central mountain range, or are distributed in small villages scattered along the fertile banks of the rivers from their sources to their junction with the sea, or occupy in small communities the coast line which page 41 intervenes between the several European settlements. Each European settlement has also now attracted to its vicinity, or contains mixed up with its white inhabitants, a considerable Maori population. In these cases both races already form one harmonious community connected together by commercial and agricultural pursuits; they profess the same faith; resort to the same courts of justice; join in the same public sports; stand mutually and indifferently to each other in the relation of landlord and tenant, and are insensibly forming one people. Each day also, as the European settlements spread along the coast, or towards the interior, a large number of Maories are weaned from barbarism, and are adopted into a civilized community. The danger of any general outbreak on their part, therefore, daily decreases; and there seems no reason why populations which so readily assimilate may not be gradually and by prudent measures brought under one form of constitutional government, which might equally foster and promote the really common interests of both races, if those of the ruder race be first taught to resort for the settlement of their disputes to courts of judicature expresssly adapted to their present state, and be by degrees trained to the exercise of simple municipal duties.

22. The Middle Island may be said to be traversed by a mountain range, which, commencing at its north-east extremity, where it almost abuts on the coast, runs in nearly an east and west line across the country to the west coast, along which coast it continues uninterruptedly, but increasing in elevation till it reaches the south west corner of the island. To the westward this range falls abruptly into the sea, leaving, generally, but a narrow strip of fertile land between its base and the sea coast; whilst, although it falls in the same abrupt manner on its eastern side, fertile plains of immense extent intervene on that side between the base of the mountain range and the sea.

23. Two considerable settlements are already established on these plains on the east coast, and a third very considerable settlement (Nelson) is established on the plains in the northern part of the page 42 island, which intervene between the mountain range and the sea. The mountain range in the Middle Island is also throughout a great portion of its extent covered with perpetual snow, and gives rise to numerous rivers of considerable width, subject to sudden floods, and generally of very rapid course.

24. In the Middle, as in the Northern Island, no overland communication, except for foot passengers, as yet exists between the different settlements. For in that island, where mountain ranges do not interpose an almost insurmountable barrier between the settlements, the wide, rapid, and dangerous rivers offer at present a no less serious difficulty in the way of any continuous intercourse between the various towns. The inconsiderable native population in the Middle Island may be said to be principally located in the vicinity of the several European settlements.

25. In the two islands there exist six principal towns, five of which are situated on good harbours, and each of these form emporiums for considerable colonies in their neighbourhood.

26. These five colonies were settled at different times, each upon a totally distinct plan of colonization, and by persons who proceeded direct to their respective colony, either from Great Britain or from the neighbouring Australian colonies, and who rarely passed through any other New Zealand settlement previously to reaching the colony which they now inhabit; and who, except in a few instances, rarely travel from their own colony to any neighbouring settlement.

27. Each of these chief towns carries on an independent trade with Great Britain and with the neighbouring Australian colonies, and hardly any interchange of commerce takes place between them, since they at present all produce nearly the same commodities, and require the same kind of supplies, which they naturally seek at the cheapest mart; whilst the cost of transport from a port in the Australian colonies, but in a trifling degree, if at all, exceeds the corresponding charges from a port in New Zealand. There is indeed already a considerable and increasing coasting trade in New Zealand, which in some parts is chiefly carried on in vessels owned and manned by page 43 Maories; but it consists rather of a trade between various small native and European settlements, and that one of the principal European towns from which they derive their supplies, and with which they are immediately connected, than of any trade between the principal colonies themselves.

28. I think it must be clear that between colonies so constituted, little of what may be termed community of interest can be said to exist. There is no general capital or mart to which all merchants and persons having extensive business at all times resort. There is no one central town for all the islands in which the courts of law hold their sittings. Indiviuals who inhabit one colony, rarely have property or agents in another. Personal acquaintance or intercourse between the inhabitants of the various settlements can be scarcely said to exist.

29. Any attempt therefore to form a General Legislature for such a group of colonies, which should at present annually, or even frequently assemble, and which should be so composed as fairly to represent the various interests of all parts of this country, must, I think, fail; because there are as yet no persons in these islands who have the means or leisure, to enable them to abandon their own affairs each year, for the purpose of resorting to another colony, there to discharge their senatorial duties. If even a payment was made to such persons to remunerate them for their expenses whilst travelling and absent from home, they still could not afford to neglect their own affairs during so long an interval of time.

30. I think, therefore, it may be assumed, that a General Legislature which should be required frequently to assemble, should form no part of any plan of institutions to be conferred upon such a group of colonies; although I shall show presently that for some purposes a General Legislature is even now necessary, and will hereafter be still more necessary, if these islands are to form, as is greatly to be desired, one large and prosperous country.

31. The same causes which appear to me to render it impossible at present to assemble frequently a General Legislature, which should at all fairly represent the interests of all the settlements, seem also, in page 44 as far as I can judge, to be fatal to the adoption in these islands of the municipal system alone, without some other peculiar institutions being adopted in aid of that system, which would be adapted to the unusual state of circumstances which prevail in this country.

32. Because such municipalities can only exist concurrently with a Legislature which frequently meets. For there is nothing connected with the offices of mayor or alderman of the corporation of a small colonial town, which would induce the ablest and leading men of the country to strive to obtain such offices. Under a system of extended municipalities with enlarged powers, such corporations would, however, compose in fact not only the legislative body, but also the executive government of large districts of country. It would therefore certainly be a great oversight, and an unwise policy, thus by indirect means to exclude from the higher legislative and executive offices, the fittest and ablest men that the country affords. The frequent sittings of a municipal body would also, in a country where every man is engaged in some active occupation, prevent all those who did not live in the town or in its immediate neighborhood, from becoming members of such municipal bodies; hence a large portion of the population and of the country would, under such a system, be virtually unrepresented, and their requirements unknown. The careless manner in which municipal bodies enact their laws render them also little qualified for the offices of higher legislation for extensive districts of country; and the frequency and permanency of their sittings would in a great degree remove them from that watchful control of public opinion, which is always eagerly concentrated on the proceedings of a legislative body which has only one annual sitting, extended over no very great length of time. Moreover, corporate bodies, exercising the usual and rather extended municipal powers, are already required for several towns in New Zealand. I think, therefore, that the municipal system should be here carefully preserved, and that it should be so preserved in its integrity for municipal purposes, and that its vitality and very form of being should not be destroyed, by producing it in a shape which, possessing no distinctive charac page 45 ter, no clearly ascertained line of duties, would command little or no respect, would have no precedents to guide it, would, I am sure, in practice prove entirely unsatisfactory and almost useless, and would thus, after a short existence, during which great discontent would be generated in the country, and its prosperity and progress be much retarded, leave to Great Britain the task of again framing a constitution for this country, which task would then be found a far more difficult one than it would be at present.

33. Having thus discussed these preliminary questions, I now proceed to report upon the form of Constitution which I think would meet all the difficulties presented by the anomalous circumstances of this country; and in doing this I shall endeavour to trace them upwards from the municipal institutions of the lowest kind which exist here, to the General Legislature; because I believe that the whole working of the proposed form of future institutions will depend upon a proper balance of different interests being preserved; indeed, the main feature of the plan now submitted for your Lordship's consideration is, that it is an attempt to adjust the English constitution, and its balance of powers, to the peculiar cirumstances of this country.

* Provincial Councils Ordinance, Sess. XI, No. 6.