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The Pamphlet Collection of Sir Robert Stout: Personal Volume
The Solicitor-General
The Solicitor-General.
"He seems to have thought it not inconsistent with the traditions of his high office to attack a charity which it was prima facie his duty to protect."
This is hardly a fair statement. The position was that the suit was commenced not by the Solicitor-General, but by the trustees of the endowment against him. He led no attack. He defended the suit by saying inter alia—(1) that the trust had ever been impracticable; (2) that the Court could not deal with the trust; (3) that if it could, he submitted a scheme. He put it in a further defence—that the Crown had no power to issue the grant. This last defence was ruled out. It was argued on his behalf that the land reverted to the Crown. Was it not his duty to raise this defence if it had reverted? Their Lordships appear to think not, but they quote no authority for such a statement of law.
"The Solicitor-General then appealed to the Court of Appeal upon the following grounds:—1. That the funds and the lands have reverted to the Crown either absolutely or as trustee upon a failure of the objects, and purposes of the Crown grant and are not subject to administration by or under direction of the Court cy-pres. 2. That no general charitable purpose existed or is proved either in the native donors or the Crown, but only a purpose of creating a specified school at a specified site, and the funds and lands are therefore not subject to administration by or under the direction of the Court cy-pres. The learned Judges of the Court of Appeal allowed the appeal and entered judgment for the Solicitor-General. They did not, however, adopt or even notice either of the grounds put forward by the Solicitor-General. They were of opinion, they said, that the laud and money had become the property of the Crown for two reasons. In the first place they thought 'the grant had become void on the ground that it sufficiently appeared from the evidence that Her Majesty was deceived in her grant.' In the second place, assuming that a school satisfying the terms of the grant had been at one time established, they held that the duration of the trust must have come to an page 9
end, because the trust was only to last 'so long as religious education, industrial training, and instruction in the English language should he given to the youth educated therein or maintained thereat.'"
"What evidence is there that the Crown was deceived? Absolutely none. The evidence is entirely the other way. The Governor undertook to complete the arrangement proposed by the native donors as soon as he received their letter. He did not even wait to communicate with Bishop Selwyn. It is not suggested that he communicated on the subject with anybody else. Now, it would be absurd to found a charge of misrepresentation on the letter of the native donors. But if the native donors were innocent, with whom is the blame to rest? The evidence which the Court of Appeal said was sufficient to prove misrepresentation was discovered by them in the introductory recitals of the Crown grant. But the grant is not a deed inter partes. The statements in it are the statements of the Crown. The statement that a school was 'about to be established at Porirua' is just as consistent with an intention on the part of the Governor to establish the school by the aid of public money or an expectation on his part that the announcement in England of the generosity of the native donors, coupled with the approval of Her Majesty, would bring in ample funds for the object in view, as it is with the supposition of misrepresentation made to the Governor by some unknown persons interested in procuring this grant from the Crown."
The ground on which the Crown acted in granting the land is stated in the grant. The Bishop accepted the grant, with that statement. Could he, or the trustees his successors in title, deny the preamble of the grant under which they held? If so, they could deny all the statements in the preamble, and deny that the school was to be "for the education of children of our subjects of all races and of children of other poor and destitute persons being inhabitants of islands in the Pacific Ocean." Could the Bishop have ignored this intention? What had been represented to the Crown appears in the grant, and there was no evidence that the preamble in the grant was untrue; and surely it rested on those
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who said in 1900 that the statements in the grant of 1850 were untrue, to prove it, and not for those who said that the grant was reciting a fact to prove the recital was correct. Further, it was never even hinted in the Appeal Court by the plaintiffs that the preamble was untrue. It was reserved to their Lordships, without the assistance of counsel, and without the slightest evidence, to make such a suggestion.
I have already referred to the Education Ordinance. Its provisions show that the superintendence and management of schools were conferred on the heads of the Churches in New Zealand. The Governor could not therefore intend to establish a school himself. That duty was left to the Churches, and the grant of Witireia is only one of many—in almost identical terms—giving lands to the heads of Churches to help in the establishment and maintenance of schools. (See the two grants set out in the cases of lands near Manihera and Kaikokirikiri.) If the Government had intended to establish a school at Porirua, the land to support such a school would not have been granted to the Bishop. The suggestion made in the judgment could not have been made by any counsel at the Bar in New Zealand, nor by any one conversant with our history.
"If the representative of Her Majesty was unduly sanguine—if he did not think that the hopes and aspirations of the native donors would attain a speedy consummation, that is no ground for suggesting that the Crown was deceived. And, indeed, expectations which may now seem to have been over-sanguine, or even unfounded, might not improbably have been fulfilled if it had not been for the Maori War and the removal of Bishop Selwyn to an English see before the war was finished."
This last suggestion is even more far-fetched than the former one. There has been no war at Porirua, or near Porirua, since 1850. The Ngatitoa tribe have not been at war with the Crown since the grant was issued. It is true that in parts of the colony far distant from Porirua—in Taranaki, in the Waikato, in Wanganui, etc.—there were wars down to 1870; but these could not have prevented the Maori youths near Porirua from receiving the education mentioned in the grant. It might as well be said that a riot in the County of Inverness, or in Yorkshire, would prevent a school being opened in Kent.
The reference to Bishop Selwyn's translation to the See of Lichfield is equally unfortunate. The district was not in his diocese after 1858. It was about two hundred miles from the
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nearest part of his diocese. Porirua was and is in the Wellington Diocese, and Bishop Abraham was Bishop of that diocese in 1858. Further, Bishop Selwyn gave up the trust in 1859, and since then it has been managed by independent trustees. Bishop Selwyn did not leave New Zealand till 1868. What possible relation could his going to Lichfield have with the non-performance of this trust?
If a person were to tell the Crown that he is about to open a school, and got an endowment on that understanding, and no school was ever opened, would the Crown not be deceived? Does it make any difference as to deceit if this person makes no statement, but receives the endowment on the statement in the grant that he is about to establish the school? If the statement in the grant on which the Crown stated it was relying, in making the grant, was not true, would not an honest grantee have so informed the Crown and rot have taken the grant till the statement was deleted or amended? I have no doubt that if the Bishop had been asked in 1850 whether he did intend to start the school at once, he would have said he did so intend. He would not have accepted the grant with a false recital.
Perhaps if their Lordships had known that this trust is only one amongst, many granted to different churches left for generations unutilised for school purposes, they would not have deemed it to be their duty to search for excuses for its nonfulfilment.