The Life and Times of Sir George Grey, K.C.B.
Chapter XV. — New Zealand Constitution of 1846
New Zealand Constitution of 1846.
"Laws grind the poor, and rich men rule the law."
In the midst of these great labours and incessant toils, Governor Grey received a despatch from Earl Grey, then Secretary of State for the Colonies, enclosing the Constitution for New Zealand, which had been passed by the Imperial Parliament in 1846. Lord Grey's despatch covered three documents:—1. The New Zealand Government Act, 1846. 2. Charter of 1846. 3. Royal Instructions of 1846.
Taken altogether, these provided as follows:—1. New Zealand was to be divided into two provinces — New Ulster and New Munster—having a Lieutenant-Governor and Provincial Assembly over each. 2. Each Provincial Assembly was to consist of two chambers—one composed of representatives, the other, the council, composed of persons directly nominated by the Crown. 3. The representatives were not to be immediately chosen by the people, but elected by the Mayors, aldermen, and common councils of the municipal bodies which were to be created throughout the country. 4. To elect the municipal bodies who were thus to elect the Houses of Representatives, those only were eligible who (i.) had been holders of any tenement in the municipalities for six months prior to each 1st January; (ii.) subjects of the British Crown; (iii.) of good fame and character, and not paupers; (iv.) whose rates were paid or not more than six months in arrears; and (v.) who could read and write English. 5. For the whole colony a General page 115Assembly was to be appointed, to consist of the Governor-in-Chief, Legislative Council (directly appointed by the Crown), and House of Representatives (to be appointed by Provincial Houses from among their own members). 6. In each of the two provinces, and in the whole colony, a civil list, controlled directly from Downing Street, was provided for, the salaries for which and the appointments to which were entirely independent of the Provincial or General Assemblies. 7. Native land registries were to be opened in the different districts, and all lands not registered as native lands by officers appointed, not by the natives, but by the Government, were to be deemed waste lands of the Crown, and this would include all lands claimed by natives save those actually used and occupied by them "by means of labour expended thereon." 8. The dissolution of the Assemblies included Councils, so that the Governor could get rid of obnoxious members even of the nominated bodies.
This so-called Representation Act was in reality a cast-iron frame of political bondage from which the people of New Zealand could not have escaped without the consent of the Company, which never would have been given.
The total number of persons who would have been qualified to vote for the mayors, aldermen, and councils of the different municipalities would have amounted to only a few hundreds,' and the great majority of votes would have been cast in the interest of the Company. All natives were at once shut out from having any voice in the government of the country, the disposal of their own lands and the revenues derived from their taxation. So were all foreigners, and the vast majority of those settlers who, like the pensioners, though of English, Irish, and Scotch birth, were uneducated, and therefore unable to read and write English, their mother tongue. No power of alteration existed save in the Imperial Parliament.
Under the Act, Charter, and Instructions, the inhabitants of New Zealand would have been utterly powerless to direct their own affairs or to control their own destiny. The Governor and Lieutenant-Governors were to be appointed directly by the Crown —that is, by the Secretary for the Colonies for the time being. The Council for the General Assembly and both Provincial Councils were also to be nominated from Downing Street; while the page 116pretended representative institutions were a mockery and delusion. There was not, nor ever could there be, any direct representation of the people. The power to make laws, to levy taxes, to expend public moneys, to dispose of the public lands, and to bestow public patronage, would have remained for ever nominally with the English Government, in reality with the directors and agents of the New Zealand Company.
Not only were the Europeans disturbed by the proposals contained in the Imperial legislation; the friendly native chiefs were seriously alarmed. The Governor was continually receiving-questions from them as to the meaning of the rumours which were freely circulated among them, and as to the real intentions of the English Government.
The native chiefs did not limit their anxiety to making inquiries of the Governor, but sent petitions also, to the Queen, which ultimately, in May, 1848, produced an answer to Te Wherowhero and the other chiefs solemnly disclaiming on the part of the Queen any intention or desire to violate the Treaty of Waitangi. The Wesleyan Missionary Society also, in a long and elaborate memorandum, prayed that all doubts regarding this question might be set at rest, as the honour of their missionaries, who had aided largely in obtaining the assent of many chiefs to the treaty, was at stake.*
Earl Grey's despatch itself closed somewhat ominously. A shadow of distrust passed over the heart of the Secretary for the Colonies. He saw that the granting of this Constitution would be attended with at least one serious danger:—"It is the danger that the powers conferred by this great franchise on the representatives of the people may be perverted into an instrument for the oppression of the less civilised and less powerful races of men inhabiting the same colony. … Such a society exists, and consequently such a temptation will arise in New Zealand."
* New Zealand Papers, Imp. Par., August, 1847, page 144.
With great anxiety he weighed the matter in his own mind before arriving at any decision. On the one hand it might be urged that he was not responsible; that if the Crown and Parliament were pleased after due deliberation to legislate in a certain way, that he was but a servant, bound to administer the law as declared by his superiors. On the other hand he remembered that he was the agent and representative of a great monarchy; that through him promises had been made by the Queen and Parliament of England to the natives of New Zealand, and that even before he had set foot within the colony solemn treaties and engagements had been entered into, in which the good faith of England was involved, and which he, as the representative of the Crown, was bound to acknowledge, and that his promise of obedience extended only to the carrying out of lawful commands. If he fulfilled the immediate and positive duty imposed upon him he might be blameless, but the fair fame of England would be tarnished. If, on the other hand, he refused to put in force the Royal and Parliamentary mandate he might ruin his own prospects, but he would give time for reconsideration of the subject and the rise of wiser counsels.
Very grave and momentous local considerations also weighed upon the mind of the Governor before arriving at a decision. He was called upon suddenly to consider the position and probable conduct of the native race should the Act of Parliament be carried into execution. The newspapers under the influence of the page 118Company, both in Great Britain and the colony, had published the Royal instructions and the partial disavowal on the part of Her Majesty's Government of the provisions of the Treaty of Waitangi. At that time we were engaged in a conflict with many great chiefs, and with large sections of the native tribes. Fighting under the standard of England were found many other great chiefs, and a large and powerful following of their people. With great loyalty and persistent honour, Tamati Waka Nene and his brothers had adhered to the Crown. The great reason which had animated Tamati Waka in his opposition to Hone Heke had been his disbelief in the statement made by Hone that the British Government was determined to take the land of the Maoris. "If I believed" —said Tamati Waka Nene —"if I believed with you that the Queen intended to take our lands, I should be found fighting at your side. Because I do not believe it, I will fight against you to preserve order and to keep good faith with the Queen."
They had acquiesced in the dictum of Captain Grey that they should not receive, as they had been promised, the lands of the rebel natives confiscated in war. They had voluntarily shared with Hone Heke for public purposes presents of money made to them by the Government, in order to convince the rebel natives that they were not actuated by the desire of gain. Captain Grey had stood side by side with these men upon the field of battle. At the final struggle of Ruapekapeka, where Hone Heke's mana and influence were destroyed, some of their chiefs had been killed and others wounded. Tamati Waka's brother William had been there shot through the body. While lying wounded on the ground he asked the Governor whether his wound was fatal. Then, taking the Governor by the hand, he asked him whether in his opinion he (Wi Waka) had done his duty to the Queen. The Governor, in answer, said that he had proved himself to be a brave and gallant soldier and a true man. Then the Maori, addressing the chiefs who surrounded him, said that after the words of the Governor it mattered little to him whether he lived or died.
At the Council of Chiefs at Wanganui, nearly all the great leaders of the North had given their promise to support the Government, and named the number of men that they would bring into the field. When each chief had finished his statement he left the room, until page 119at last Captain Grey was left alone with Te Wherowhero, many years afterwards Potatau, the first Maori king. When no ear was there to listen, Te Wherowhero said, "Oh, Governor, you have this day disgraced me before the chiefs of New Zealand. I am the greatest chief of the North Island. All these who have spoken to-day acknowledge my supremacy. You have received promises from them of great numbers of warriors. I have but one man whom you brought with me from my tribe. But though I am not able to lead a great taua (war-party) to the field, yet to show my faith to you and loyalty to the Queen I will serve as a private warrior under one of these other chiefs."
The Governor had received innumerable instances of self-denial, devotion, and confidence from both chiefs and people, and he was now asked or rather commanded to tell them that all the promises which had been made for years were to be broken, and they and their children were to be despoiled of the heritage which had been assured to them as the condition of their allegiance by the Treaty of Waitangi. Not only was the Governor oppressed by this feeling of ingratitude and breach of faith, but he was bound to recognise the danger of such a proceeding to the European inhabitants of the colony. Twenty thousand Europeans, men, women, and children, were scattered far and wide in many settlements without means of communication or possibility of concerted measures of defence, everywhere surrounded by savage tribes, prompt in action, fearless in battle, unsparing in revenge A few soldiers unused to Maori warfare, a few men capable of bearing arms but mostly untrained to military service, were all on which he could have depended against a combined onslaught by the Maoris. The probabilities were all in favour of a war of extermination arising should the provisions of the Act of Parliament and the Royal instructions be carried into effect. Within three months it was not only possible, but probable, that, save in one or two fortified places, no white people would have been left alive in these islands.
Still further and most important considerations weighed upon his mind and influenced him very greatly. Captain Grey had conceived the belief that the period in which he had been called to administer the affairs of South Australia and New Zealand was the page 120turning point in the history of the colonial policy of Great Britain. Foreseeing the vast extent of populated territory which would hereafter be subject to the Crown of England; contemplating as though already in existence the "unborn millions" of God's creatures, and of his own race, who were destined, in the mighty colonial empire, to change or modify the history of the world, he was determined that in all constitutions or charters of government given to any one or more of these, so far as his ability allowed, those constitutions should be as perfect and free as the mind of man could make them. He knew how difficult it would be, if a faulty constitution were once brought into existence, to amend or to alter it.
The. charter which had been granted to New Zealand was not, in his opinion, a charter for the people, but a charter simply for speculators, for the hungerers after land, and the shipowners desiring freights and passengers, who helped so largely to form the New Zealand Company, and he believed it would perpetuate in this new land the worst abuses of the feudal system. He at once perceived that to bring this new Constitution with all its imperfections and proposed tyrannies into existence would in no sense give the power of self-government to the people of New Zealand, either of the few thousands already in the colony or of the millions who were destined to occupy it hereafter. During his ten years of official life he had become convinced that the Colonial Office was so little criticised or controlled by public opinion that every Minister of an hour was able to perform illegal acts without detection and without punishment. He did not know to what extent these personal illegalities might be carried. Holding extreme views upon the importance of the colonies to Britain and their probable influence-upon the future welfare of the world, he had determined from the first to oppose every wrongful act where opposition was possible; for he saw that a day might come when, under some sudden pressure or political exigence, the integrity of the Empire might be impaired, and its existence threatened, without the consent of Parliament or people. He believed that the only hope for the Old World would be found in the New. And he dreaded the establishment in the colonies of those worn-out and effete institutions and class distinctions, and that military rule, page 121which threatened even yet the nations of Europe with universal destruction. To his mind the human regeneration of the world must come from the United States and the colonies of England. To him, therefore, the proposed Constitution was, in many respects, not only devoid of attraction, but absolutely repulsive.
Deeper than all, and more sacred and powerful in its force, was the sense of duty to himself and to his Maker. A sentiment of abhorrence to injustice, falsehood, and oppression made him shrink even at the command of Queen and Parliament (especially as he knew them to be misled), from the performance of an act which, while gratifying for the moment the clamour of powerful and unscrupulous opponents, would involve the disgrace of his country, the disappointment of the noblest hopes, and the suffering of many innocent and unoffending people.
There were at that time in New Zealand, besides Captain Grey, two men of more than ordinary greatness of character and capability of intellect, George Augustus Selwyn, the Bishop of New Zealand, and the Chief Justice, Sir William Martin. These gentlemen, equally with the Governor, felt outraged by the promulgation of the principles contained in Earl Grey's despatch, and were indignant at the attempted breach of faith contained in the Imperial Act and the Orders-in-Council. They made no secret of their opposition to the whole proceedings. The Chief Justice drew up a strong and indignant protest which was immediately forwarded to Her Majesty through the Colonial Office. The strongest of all grounds were taken in this remarkable letter of remonstrance. It consisted of three parts, which respectively urged—I. That Earl Grey's instructions involve a breach of the national faith of Great Britain. II. That Earl Grey's instructions involve a breach of established law. III. A protest against the general doctrine put forth by Earl Grey as the principle upon which colonization should be henceforth conducted by Great Britain.
Perhaps no more vigorous and outspoken denunciations of a proposed wrongful Act intended by a great Power were ever penned than those which were transmitted, by Bishop Selwyn to the Governor in 1847 and 1848. In 1847, Selwyn had joined with the Chief Justice in protesting against the propositions contained in Earl Grey's first despatch, and united with the Chief Justice and many page 122others in pointing out the great and imminent dangers which would surround the Europeans in New Zealand if the Act and instructions were enforced. In answer to that protest, Earl Grey had transmitted a vigorous animadversion both upon its manner and the matter contained in it. On August 1st, 1848, Selwyn, in a long letter to Governor Grey, enclosing a copy of the pamphlet written by the Chief Justice, deals in a most masterly manner with the statements made by Earl Grey and the position taken up by the Imperial Government. The Bishop's letter is unanswerable. With plain and forcible logic he exposes the weakness and inconsistency of the case made out by the Secretary for the Colonies, and disproves, by historic quotations and the expressed opinions of the greatest jurists, living and dead, the statement made by Earl Grey as to the rights of savage tribes to their lands. He cites the history of colonization in America. Quoting the writings of Sully, Blackstone, and Kent, he shatters the weak and illogical deductions of Earl Grey, and destroys without hope of rehabilitation the arguments which the Earl had used in defence of his remarkable despatch. Without hurry or impatience, but with due regard to the gravity of the occasion and the importance of the issues involved, the Governor weighed the arguments upon both sides with impartiality. A great trust had been committed to his care, and Lord Stanley had already forewarned him as to the responsibilities which would attach to his governorship of New Zealand. Neither had anticipated the exact form in which this responsibility would come. The issue showed that Lord Stanley had not miscalculated the courage of the young officer so suddenly promoted, and that the character of Captain Grey was equal to the task imposed upon it.
His resolution was soon taken. He determined to suspend the operation of the Act, and decided also in his own mind that if the Imperial Government persisted finally in introducing it they must seek some other agent than himself for that purpose. His refusal to obey the orders of Ministers in London was not based upon the same grounds as animated the angry correspondence between Bishop Selwyn and Earl Grey, or the impressive remonstrance made by the Chief Justice. Jealous of the honour and reputation of his superiors, Governor Grey determined to see nothing in his instructions but that which was consistent with law and with the page 123good faith of the Empire. He therefore answered Earl Grey as if no infraction of the Treaty of Waitangi had been intended, and he assumed that whatever might be the abstract reasoning in the noble Earl's letter as regards the rights of savage nations to their lands, this was not intended to refer to those lands of the natives which, under the Treaty of Waitangi, had been assured to the Maori tribes.* The other reasons upon which he justified his action were set forth clearly in his answer to Lord Grey's despatch. The principle which actuated him he declared in his memorandum in reply to a letter from Lord Lyttelton on his return to England in 1854. "When Parliament, from want of sufficient information, legislates wrongfully or unjustly for a distant nation subject to its laws, unless the high officers of the Empire will take the responsibility of delaying to act until they receive further instructions, the Empire cannot be held together. For the moment such an Act of Parliament arrived in the country, the people, hopeless of that redress which ought to be afforded to them, would break out into revolt: whilst, could they have hoped that their complaints would have been listened to before the law was enforced, they would have continued loyal and dutiful subjects. In declining, therefore, to break promises which I had made as Her Majesty's representative, and in endeavouring to obtain a further consideration of the course which I felt certain Parliament had unadvisedly taken … I feel that I did my duty as a faithful servant of my Queen and country, and will cheerfully undergo every risk and punishment which may follow from my having adopted that course." †
* Governor Grey to Earl Grey—May 3rd, 1847, New Zealand Papers, Imperial Parliament, December, 1847, pp. 42 to 46.
† Memo. by Sir George Grey, July 6th, 1854.
As in the early days of his explorations, as amid the storms of disapprobation which he had been compelled to meet in South Australia, and as in after years, both in South Africa and in New Zealand, he steadfastly and silently faced insult, accusation, and injury, in what he believed to be the performance of his duty, so he now determined, at all cost and hazard, to pursue the straight path of righteousness and justice. He was confident that the truth was mighty and would prevail, and he was sustained not merely by his own conviction, but by the warm sympathy and vigorous aid of Bishop Selwyn and Sir William Martin.
So strong and convincing were the arguments and reasons adduced by the Governor, that the English Government immediately passed a Bill—not to impeach the Governor of New Zealand for contumacy, nor to dismiss him from the public employment because he had practically ignored the commands of the Parliament and the Crown, but to suspend its own Act for five years, during which period full power was given to the Governor to raise such a Constitution as he might deem proper in the interests of the mother country, and of both races in the colony of New Zealand.
This was the first, though not the last, time that Sir George Grey brought himself into direct collision with the Government of England and the Imperial Parliament. His disagreements with the Home Government had not always so complete a vindication, nor so happy a result: but it will be seen, as we proceed, that that opposition, whenever called into existence, sprang from the same lofty motives and the same intense determination to do right, whatever might be the consequences.