Our Colonial Empire and the Case of New Zealand

James Busby

First published by Williams and Norgate in 1866

Digitised and made available online by the University of Auckland Libraries and Learning Services.

Epub © 2013 Early New Zealand Books Collection

ISBN 978-1-927288-69-6

[TITLE PAGE]

OUR COLONIAL EMPIRE
AND THE CASE OF
NEW ZEALAND.

BY JAMES BUSBY,
HER MAJESTY'S RESIDENT AT NEW ZEALAND PROM 1832 TO 1840, AND A SETTLER THERE SINCE THAT PERIOD.

WILLIAMS AND NORGATE,
14, HENRIETTA STREET, COVENT GARDEN, LONDON; AND 20, SOUTH FREDERICK STREET, EDINBURGH.

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[PREFACE]

PREFACE.

THERE are certain obligations and rights which are essential to, and inseparable from the relation of Sovereign and subject; and these obligations and rights are neither abrogated nor impaired by the distance of a province or of an individual from the sovereign authority. They remain the same in a colony which is separated by the circumference of half the globe from the seat of the central Government as in the districts which lie contiguous to it.

It is a popular prejudice that by what are called the institutions of self-government, as given by Act of Parliament to colonies of British settlement, the relations of those subjects of the Crown who have become British colonists to the mother country are so altered as to affect, in relation to them, the essential attributes of sovereignty. But it is not so. These attributes are, from their very nature, inalienable and incapable of being delegated to a subordinate authority.

All government under British dominion is the government of the Crown. The powers delegated to colonial authorities are simply for matters of local regulation, and must necessarily, like all subordinate municipal functions, be subject to the law of their delegation; and the maintenance of this law cannot be renounced without a betrayal of the highest trusts which are reposed in the rulers of empire. By the grant of representative institutions, the connection of the Colonies with the mother country is not reduced to an impalpable thread, or to a mere

relation of sentiment, as assumed by some late theoretical writers on colonies, who have supposed that abuse of authority is its normal condition. It is the strong ligament of paramount law and ultimate authority which binds together, under one head, the individual members of one body. If every colonial question is not also an Imperial question, it becomes so in every case in which a colonial Legislature exceeds its jurisdiction, or a colonial Governor makes an unlawful or unrighteous use of the powers delegated to him, whether by the oppression of the Queen's subjects, or by an encroachment on Imperial authority. Of late years, however, the Colonial Department has so far ignored the obligations which spring out of the necessary relations of Sovereign and subject as to favour the belief that the fundamental laws of the empire are not in force in the Colonies, and that it is no part of the duty of a British Minister to maintain them there.

Notwithstanding that of all public questions those relating to the Colonies are the least attractive to Members of Parliament, it may be fairly assumed that the present condition of many of the Colonies of Great Britain is such as ought to ensure for them, in the approaching session, a degree of attention which is rarely bestowed upon colonial questions. The sacrifice of so many valuable lives, and the expenditure of so much British treasure, in New Zealand, in the hitherto ineffectual attempts to put down the insurrection of the Maories; the proposal to confederate the provinces of North America by a union which, if a judgment may be formed from the results of a similar federation in New Zealand, will not only fail in relieving the Colonial-office from its responsibilities, but bring about complications which will make the true objects of government impossible of attainment; and, more recently, the insurrection of the negroes in Jamaica; and the conspiracy of the

functionaries of the Government of Victoria to violate the law of the Constitution of that province, may well create a desire to trace those evils to their source, and overcome the repugnance of British statesmen to investigate colonial questions.

"The system called Responsible Government," which has so extended and complicated the machinery of colonial administration as to make it difficult to understand any colonial question, has also created an idea that it is neither competent nor desirable for the Imperial Parliament to interfere with the affairs of the colonists. But the highest and most essential duties of government are of such a nature that no subordinate authority is competent to discharge them; and these duties cannot be ignored without occasioning abuses of the gravest character, the consequences of which, though first felt in the Colonies, are sure to react with double force upon the mother country.

It was expected that the system called "Responsible Government" would relieve the Colonial Department from the greatest part of its labours, but, judging from the voluminous correspondence which appears from time to time in the Blue-books issued from the Colonial-office, it may be safely affirmed that the labours of that office have increased with every concession to the colonial Legislatures; or, to speak with more precision, with every fresh encroachment which they have been allowed to make upon Imperial jurisdiction, until they have become probably tenfold what they would have been under a system that should faithfully maintain the relations which must necessarily subsist between the supreme authority of an empire and every subordinate department of its administration; with which relations the system called "Responsible Government" is absolutely incompatible. While Parliamentary debates and newspaper discussions have

turned so largely upon the grievance of taxing the people of England in support of colonists who are so much better off than their fellow-subjects at home, it will doubtless occasion surprise, if it should be affirmed that the mischiefs of misgovernment in the Colonies are the direct results of the neglect by the British Government of the most essential of all the functions of government – the maintenance of the law. This may not only be affirmed with respect to New Zealand, but the proofs that it may be affirmed with truth are of such a nature as to leave no room for doubt upon the subject.

If these results have occasioned perplexity to British statesmen, and expense to the British tax-payer, the colonists as a body have much more reason to complain; having been sacrificed to the ambition or cupidity of speculating politicians, whose ruling idea is that the Colonies are made for government, not government for the Colonies; and who, having been allowed to usurp illegal powers, have changed the functions of government from a duty to a trade.

A searching investigation into the transactions of government in New Zealand could not fail to convince the British Government, and the British public, that the unfortunate colonists of the Northern province, who, in addition to their sufferings by the war, have been loaded with taxation and debt, cannot be left to bear those burdens without cruel injustice; nor is there any greater fallacy than that it was in their power to prevent these evils by exercising the privileges of self-government. There could be no more cruel mockery than to taunt the colonists of the Northern province with the enjoyment of such privileges, seeing that they have never ceased to protest, by petitions to the Queen and Parliament, against a Constitution which placed their affairs under the control of the leading men of the New Zealand Company's settlements.

Such an investigation would also put an end to the assumption that it would be an economy to cut the Colonies adrift, by showing that, so far at least as regards New Zealand, the Home Government, and not the colonists, is to blame for the expenses of the war; and by leading to the inference that if their affairs had been administered under a system of government consistent with the rights and privileges of the colonists as British subjects, they would occasion no expense whatever for their internal administration; while the protection of the Colonial trade would not, in proportion to its value, cost the mother country one tithe of what is necessary to protect the trade with some foreign countries.

It is the object of the following pages to explain and illustrate the true relations of British Colonies to the mother country – a task which, in itself, is not one of difficulty – though it is impossible to avoid the conviction that it has to encounter prejudices of the most inveterate character. The false theories of the late Mr. Gibbon Wakefield, reiterated in every shape and supported as they were during many years by the unscrupulous application of his great talents, have taken such hold of the public mind as to amount almost to a superstition. It is true that his theory of an artificial regulation of the relations of capital and labour to each other by fixing what was called "a sufficient price" for waste lands in the Colonies, and restricting their occupation, and by regulating the supply of labour in proportion to the lands disposed of, has long since collapsed with the ruin of many hundred families who attempted to colonise New Zealand in the faith of so delusive a system. But his system of colonial administration, as developed in the report which goes by the name of Lord Durham, has forced its way, in the face of the profoundest conviction of its falsehood in the mind of every British statesman who has expressed an opinion

on the subject. It is called Responsible Government but it can only be designated truly as "A PERMISSIVE BETRAYAL OF THE TRUSTS OF LEGISLATION AND GOVERNMENT BY THOSE TO WHOM THOSE TRUSTS HAVE BEEN DELEGATED."

Under the old system of colonial administration, as exemplified in the early American Colonies, British colonists enjoyed the advantages of the same mixed government, and the same Constitutional rights and privileges, as belonged to their countrymen at home.

In an able Report from the Board of Trade on Colonial Constitutions, dated April 4, 1849, the old model of provincial government is recommended in the strongest terms. It says: – "We think 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. We also think it wise to adhere as closely as possible to our ancient maxims of government on this subject, and to the precedents in which those maxims have been embodied. The experience of centuries has ascertained the value and the practical efficiency of that system of colonial polity to which those maxims and precedents afford their sanction." Every year's experience of a departure from those maxims and precedents in the establishment of a Democracy, under the semblance of British government, has tended more fully to demonstrate the mischief of a departure from true Constitutional principles. Nor has this departure been so much in the colonial Constitutions enacted by Parliament, as in unfaithful admininistration. Colonial Governors have been encouraged to look upon the Commissions they receive from the Queen, and the Instructions under her Sign Manual and Signet, as so many mediaeval chartularies, which have become obsolete by the progress of events, and which could not be acted upon without defeating the objects

they were intended to accomplish. Whereas, in truth, it would be difficult to imagine that human wisdom resulting from extensive experience could add anything to the excellence of those instruments; and to their fitness, if faithfully acted upon, to maintain the efficiency of public administration and the security of private rights.

The illustrations of the misgovernment arising from a departure from the old models of colonial Constitutions, and from the unfaithfulness of administration, which prevails in all the Colonies where the system called "Responsible Government" has been introduced, have been drawn almost exclusively from the New Zealand Colonies, in which the leaven of the Wakefield theories has worked with its fullest force; and in which, it is not too much to say, that a disregard of law and right has been the characteristic of legislation and administration. This has been especially shown in the second part of the work, which is confined to a history of the land question.

The dealings with the waste lands which are, in all colonies not fully settled, the most important function of government, assumed in New Zealand new and peculiar shape, from the recognition of that country as a substantive and independent State, and the consequent necessity of procuring, by treaty with the natives, the ultimate dominion over the soil which, in all other colonies, had been assumed as incident to discovery and settlement.

The instructions of the Marquis of Normanby, when Principal Secretary of State for the Colonies, on this subject were all that could be desired; and, if they had been faithfully adhered to, would have avoided every difficulty, which the circumstances of the British settlers – who, to the number of two thousand, were established in New Zealand before it became a portion of the British empire – were calculated to create. But

the conduct of the colonial authorities, sanctioned by the Home Government, were not only a violation of those instructions, but a violation of the plainest instincts and principles of justice and right, as well as of municipal and international law. This being the case, as will fully appear in the narrative, and the results being the insurrections of the Maories, and all the deplorable consequences which have followed, it will at once be seen that it is palpably unjust to charge the colonists with the war or the expenses which it has occasioned. If the government had been a government of law and of good faith there is no reason to suppose that there would have been any rebellion. That it was not a government of law and good faith was owing to the Colonial Department of the State allowing or condoning the illegal and unrighteous acts of the colonial authorities.

It is a vain supposition that the Imperial Government can throw upon the colonists the responsibility of governing a colony as long as it remains a portion of the empire. Every attempt to do so will recoil upon the mother country, and, as has already been proved by experience, give rise to complications and embarrassments such as never could arise from an adherence to the true principles of government. The colonists are as much members of the empire as the citizens of London: subject to the same allegiance and entitled to the same protection. The sovereign power cannot divest itself of the obligations of sovereignty towards the colonist; neither can the colonist divest himself of his allegiance to the sovereign power.

While the results of "Responsible Government" have been, and necessarily must have been, similar in all colonies where it was adopted, inasmuch as falsehood and unfaithfulness must always lead to confusion, it is impossible to look upon the circumstances of each colony as similar or capable of being dealt with by an invariable rule. But whatever changes the lapse of time may

make necessary, the British Government must be held answerable for allowing and fostering a system which necessarily led to the assumption of the powers of government by persons the least trustworthy, and the most likely to sacrifice the interests of the community to selfish objects, whether of ambition or of gain.

It may be predicated, with some assurance of certainty, that an investigation into the history of all colonies under "Responsible Government" would result in the proof that men of probity have gradually ceased to be connected with the administration of colonial affairs; that men of standing amongst the colonists, whose education and character afforded some assurance of an intelligent attention to the interests of the community, have been forced to yield their places in the Legislature to needy adventurers, who made no scruple of promising to the electors whatever would secure their election; and that no Ministry could hold office who did not make it their chief study to provide salaries and contracts for such men and their connections. Does the British Government owe no reparation to the colonial communities for the demoralisation which has resulted from the trade in Government offices and transactions, and for the ruinous taxation imposed upon them by such a system? The case of Canada is altogether peculiar. It may be wise to make preparations for the establishment of that province as an independent nation; but it would be an act of simple justice, if not an imperative duty, before withdrawing the protection of British laws and British government, to show the colonists the difference between a wise and upright administration, and the ruinous shifts and expedients to which needy and unscrupulous adventurers must resort to maintain their hold of office. The mother country could inflict no greater curse upon the Colonies than to leave them under the power of an oligarchy composed of such

men; and matters would be much worse under a federation of the provinces. Before such a proposal is carried out in North America let the results of the federation of the New Zealand Colonies be clearly understood. No more ingenious contrivance could be imagined for depriving the colonists of all check upon their representatives, and of establishing an irresponsible oligarchy. This is not a mere supposition. It is capable of being established by the inexorable logic of facts.

A return to lawful and Constitutional administration would, doubtless, occasion an outcry amongst those numerous members of the colonial community whose cupidity or vain-glory has been fed by the oppression of the majority. But were the seals of the Colonial-office held with a firm hand, and subordinate authorities kept within the limits of their lawful jurisdiction, such persons would learn that they were under the government of the Crown, and like other subjects of the Crown must submit to the laws. When agitation and corruption should cease to lead to office and to power over the public revenues, statesmanship, as our colonial demagogues are fond of calling their intrigues, would cease to be a speculation and a trade; the Colonies would cease to occasion either trouble or expense to the mother country; and the fruits of lawful and upright government in the colonies would as surely be peace and prosperity, as the fruits of illegal legislation and unfaithful administration have been insurrection and distress.

PART FIRST. OUR COLONIAL EMPIRE.

OUR COLONIAL EMPIRE.

PART FIRST.

THE Colonial Empire of Great Britain has attained to a magnitude unexampled in the history of the human race. But in this mercantile and utilitarian age, the glory of an empire upon which the sun never sets appears to have become a matter of small account. The relations of Great Britain and her colonial dependencies are measured by a money standard, and the obligations and duties of Sovereign and subject are weighed against a balance-sheet of expenditure and income. This at least would be the conclusion to be drawn from recent debates in the House of Commons, and from the discussion of colonial questions in the public journals. On the other hand, it is to be hoped that, when it becomes a question of the integrity of British dominion, the heart of the nation is sound. The proposition to allow the colonists to shift for themselves, which has been openly advocated, appears to have found but little favour. Even those who consider that Free-trade has so altered the relations of the colonies to the mother country, that the fewer political relations they have to each other the better for both, would not renounce the duty of protection when a case should arise involving the honour of the Crown. The great Free-trader himself, 1 whose recent death called forth the regrets of the nation, while maintaining, in a conversation which occurred shortly before that event, that it would be better both for the colonies and the mother country that all political relations between them should cease, still declared that England could not abandon Canada while threatened by the United States, or New Zealand, while the settlers were in danger from the Maories.

In all ages of the world the tenacity of dominion once acquired, has shown that the instinct of national preservation is akin to the instinct of self-preservation in the individual; that the loss of a member of the body-politic cannot but weaken what remains, as the amputation of a limb deprives the natural body of its pristine efficiency. The prestige of national power is destroyed, and aggression invited by the weakness which permits of the loss of dominion, and the preservation of the

TROUBLES IN THE COLONIES

integrity of its dominions has consequently been the first care of the Government in every State of which history has handed down the transactions. Our latest accounts of a struggle for national existence refer to one that occurred in a country in which, of all others, the ties that bound its provinces together were the weakest. One of the most difficult questions which a jurist ever had to decide is the question whether the right of the separate, and, in all matters of internal government, independent States of the American Union to dissolve the ties which bound them together; or the right of the majority of the States to compel the minority to abide by the Union, was the stronger. The ultima ratio which settled the question of power by no means decided the question of right. But it illustrated in the most remarkable manner of which we have any example the tenacity of dominion once possessed. It is impossible that British statesmen can be insensible to these considerations; the prevalent delusion appears to arise from a defective appreciation of the necessary obligations which are inseparable from the relations of Sovereign and subject.

Nevertheless the true glory of Great Britain's mission as a colonising power is little appreciated. To cover the face of the world with cities; to make the waste places of the earth to blossom like the rose; to introduce law, civilisation, and religion, with commerce and the arts of social life, into regions where heretofore roamed the ruthless and brutal savage – these are the attributes of power and dominion which Britons should regard with pride and maintain with jealousy. They are something more than the power and wealth represented by "ships, colonies, and commerce," the desire of the First Napoleon. They are a Divine legation. They are the fulfilment of prophecy: "God shall enlarge Japhet, and he shall dwell in the tents of Shem, and Canaan shall be his servant." Would that our statesmen could be brought to appreciate more justly the powers they are privileged to administer, and the responsibilities which are inseparable from the administration of those powers; to accept the labour of maintaining British institutions and British law throughout the Queen's dominions, for the protection alike of the industrious colonists and the ignorant aborigines – a labour which would be found to be light, and a duty which would be simple, if faithfully administered.

It is the object of the present work to investigate the nature and progress of that misgovernment which has brought some of the colonies into a state of disorganisation and anarchy, that

TRACEABLE TO MODERN INNOVATIONS.

threatens, if not the absolute disruption of the empire, a result still more deplorable – the maintenance of a dominion which has become nominal, in so far as it has abandoned all effective control over the most flagrant abuses, but has made itself effective in supporting subordinate authorities in violating the law and betraying the trusts of Government. An experience of upwards of forty years of colonial life has convinced the writer that the complications in colonial affairs which have led to rebellion in the colonies, and have entailed such heavy charges on the British Treasury – which have disgusted British statesmen with colonial questions, and made their discussion the readiest means of emptying the benches of the House of Commons, are not a necessary result of distant dominion, or of delegated and divided authority, but are traceable to a mistaken liberality on the part of the Colonial Department in the toleration of local abuses, and in a departure from the true principles of British administration, by a too ready concession to pretentious theories, at the expense of right.

It is to an examination of the proofs of this conclusion, to which his own experience has brought him, that the writer invites attention: not, however, as a mere theoretical proposition, but as a demonstration of the necessity of returning to the true principles of colonial administration in order to the maintenance of the integrity of the empire; as well as in immediate reference to an opportunity of putting to the proof, the advantage of returning to that system of colonial government of which the experience of two centuries had proved the efficiency, before the mischievous innovations of the last thirty years were heard of. The case referred to is that of the Province of Auckland, which has suffered more from the effects of empirical experiments in government than any other province of the empire, and the inhabitants of which have almost to a man united in laying their petition at the foot of the Throne for the restoration of their rights as British colonists. A short time before the dissolution of the last Parliament a petition was received at the Colonial Office from the Provincial Council of the Province of Auckland, the northernmost of the New Zealand Colonies, praying that that colony may have a separate Government and Legislature. This petition was transmitted by Governor Sir George Grey, who states in his despatch (dated Auckland, January 5, 1865): –

"I only received this petition yesterday, and therefore fear I shall not by this mail have time to make a full report upon the important question raised in it;

PETITIONS FROM THE PROVINCE OF AUCKLAND

by the next mail I will, however, transmit such a report; and in the meantime I will only say that I think, unless some such arrangement as is prayed for by the Provincial Council of Auckland is carried out, it will be impossible to bring to a satisfactory termination the difficulties prevailing In this country." 2

The Provincial Council of Auckland had petitioned the Queen and both Houses of Parliament for the same object in 1853, 1855, 1858, and 1862.

On the 7th February Sir George Grey transmitted two further petitions, one of these petitions being signed by all the Northern members of the Legislative Council, and of the House of Representatives, with the exception of three of the latter who were not in Auckland, but who, having "supported the separation movement" in the House of Assembly in the previous December, it was concluded, would have signed it if in their power – two of them having, indeed, actually requested another member to sign in their behalf.

The other petition is from "the inhabitants of the Province of Auckland." "This petition," says Sir George Grey, "has already received 7920 signatures, whilst the signatures from the out-settlements have not yet been received;" the population of the Province of Auckland amounting to about 40,000 colonists, and about as many-aboriginal natives, being nearly four-fifths of the Maori race. The petition of the Northern members of the General Legislature states –

"That the Constitution granted to the colony by the New Zealand Constitution Act appears to your petitioners to have been framed in forgetfulness of the large native tribes within the dominions to which it was intended to apply.

"That the members of the General Assembly, by an unanimous vote in both Houses, have recently. recorded their conviction that the joint responsibility of Governor and Ministers has resulted in divided councils, which have been productive of great evils to both races of your Majesty's subjects in this colony, and have entailed heavy and unnecessary expenditure both upon Great Britain and New Zealand." 3

The "responsible Ministry" of New Zealand, on the appearance of this petition, requested the Governor "to reserve his remarks upon it until he should first have received those which they wished to make."

Certain Auckland colonists who happened to be in London when these petitions were transmitted were requested to form

FOR A SEPARATE GOVERNMENT.

themselves into a Committee for the purpose of forwarding the objects of them. They accordingly addressed themselves to the Secretary of State for the Colonies, who informed them, in reply to their first communication, that he had not received the report which was promised by Sir George Grey, but who ultimately caused the following letter to be addressed to their chairman: –

"Downing Street, July 31, 1865.
"To W. S. Grahame, Esq.

"Sir, – I am directed by Mr. Secretary Cardwell to acknowledge the receipt of the letter which you addressed to him on the 24th inst, as chairman of the London Committee of the Northern Association of New Zealand.

"I am to inform you in answer that Mr. Cardwell cannot hold out any hopes to the Committee that Her Majesty's Government will oppose itself to the policy of the present Ministry of New Zealand, either by delaying the withdrawal of the regular troops, or by taking steps for the separation of that Colony into two or more distinct Governments. – I am, &c., (Signed) "FREDERIC ROGERS."

No report from Sir George Grey on the subject of the above petitions, or remarks of the Ministry upon them, have as yet appeared in any papers laid before Parliament, beyond a reference to the petition of the Provincial Council in the following words: – "Ministers are of opinion that the division of New Zealand into two or three separate colonies would dwarf the political intellect of the colony, confining it to the consideration of narrow and personal interests." Another Southern politician, of whom it is only justice to say that he has shown himself more straightforward in his aims and more disinterested in his conduct than the rest, is reported to have thus expressed himself at a public meeting at Canterbury: –

"Mr. Fitzgerald objected to separation, because he thought, looking at the history of all these colonies, that the tendency of this measure would be to lower and degrade it – that it was inevitable. This very native question, placed before them as it was, full of difficult and appalling danger, which they all shared and all felt in the Middle Island just as they did in the North – this very question, because of its difficulty, would raise and elevate the whole character of the statesmen of this country. When they were asked to cut up the colony into two divisions, they were asked to stunt and dwarf their position. It ought to be a glory to them that they had a question to deal with given to no other colony; and he would tell them that that question alone would produce the greatest men of the Southern Seas. They were asked to extend their minds in order to master that difficulty, and beyond the mere views which usually fell to the lot of other colonists. They were asked, and they alone, of all colonists in the Pacific, to deal with questions requiring comprehensive views and states-

RIGHT OF COLONISTS

manship, and yet they were asked at that moment to abandon that vantage ground, and retire from the platform which offered them the career of statesmen – and to be content with the character of vestrymen. He must tell them the greatness of the sphere of Government and the magnitude of the population upon which they ruled – those were the instincts of a great people. No people ever made itself small unless they bad small minds that could not comprehend the importance of great communities. It might be said that the two islands had two different institutions. He admitted it; and the same might be said of the seven kingdoms of the Heptarchy until joined in one."

With one exception, the local politicians into whose hands the affairs of the colonists have fallen are men whose families and interests are beyond the reach of any danger from the Maories; and they are unquestionably in a position to take a more philosophic view of the state of New Zealand than those whose homes have been desolated by Maori warfare. But the colonists of the Auckland Province having the best grounds for knowing that to the attempts at statesmanship of the Southern politicians they are indebted for the war in which they have suffered so much, as well as for the enormous taxation and debt which threatens the extinction of their property, may be excused if they are unwilling to be any longer the victims of the aspirations of such statesmen to become "the greatest men of the Southern Seas."

The prayer of the petitioners to have the management of their own affairs without the interference of persons who have little knowledge of them, and less interest m them, but who have interests which may be served by a sacrifice of their interests, is too reasonable a prayer to be answered by the expression of Mr. Cardwell's intention not to oppose the policy of the present Ministry.

It is the professed policy of the British Government to allow colonists to manage their own affairs. But it is an utter mockery to place a community under the sway of an Assembly, a majority of the members of which have no interests in common with those of that community; and this is true of each of the six colonies which were planted in New Zealand. No colony, which was ever planted in ancient or modern time, was ever more distinct from all other colonies than is each of the six colonies of New Zealand from all the rest; and, at the time when the present Constitution was framed, the smallest of them was capable of maintaining liberally a Government suitable to its circumstances, if administered according to the precedents afforded by the Constitutions of the American Colonies, the efficiency of

TO MANAGE THEIR LOCAL AFFAIRS.

which was proved by the experience of two centuries. The creation of what is called a general Government and Legislature to overrule the local Legislatures is altogether unprecedented. The plea that, by giving to each colony the management of its own affairs the political intellect of the colonists would be dwarfed, is not only a vain but a false pretence, indicating only the ideas which such a complicated machinery of Government is calculated to generate, that communities exist for the purpose of allowing politicians a platform for the display of what they suppose to be statesmanship. There was no federation of the American Colonies until their separation from the mother country. Till that epoch each colony conducted its own affairs, under the sovereignty of the mother country, without any connection with the rest. But when their separation from the mother country made it necessary to provide for the foreign relations which belong to an independent State, relations which a dependency are incompetent to hold, there was no want of political intellect to cope with the new and difficult circumstances in which those colonies were placed. There is no greater monument of political wisdom than the Constitution under which those States were united for the management of sovereign relations with foreign countries, while each State retained the independent management of its own internal affairs. The Province of Rhode Island, when its first charter was granted, was not larger than the county of Eden, in the Province of Auckland, but, without enlarging its borders, it has retained till this day the independent government of its local affairs, and it is not a little remarkable that all the original colonies became, and continued. States of the Union, with no alteration in their boundaries, and with but little alteration in their political and social institutions, from the date of their first formation.

When, therefore, the progress of events shall make it expedient to separate the Colonies of New Zealand from the mother country, there is little danger of the colonists being destitute of the political intelligence and knowledge necessary to enable them to provide for the sovereign functions which belong to an independent State. Until that aera shall arrive, a general Government and Legislature can have no legitimate functions, but can only exist by usurping the functions which can belong exclusively to a sovereign power, or by encroaching on the rights of their fellow-colonists. To what an extent the general Government and Legislature of New Zealand have done both will be made manifest in the subse-

A FEDERATION OF DEPENDENCIES

quent pages of this work, as well as the injustice of charging upon the colonists of Auckland the expenses of a war which would never have occurred if their petitions to be delivered from the domination of Southern politicians, and to be governed by the free customs of their ancestors, as maintained in the free settlements of America, had received from the Home Government the attention to which they were entitled.

There are three colonies in the West Indies, each of which have enjoyed a separate Legislature and Government according to the model of British institutions for upwards of a century, the united population's of which, including negroes and men of colour, do not exceed in number the population of the Province of Auckland. The islands of the West Indies enjoy a facility of communication with each other which is unknown to the provinces of New Zealand, and consequently might be governed in groups or under a federation with much more advantage than those provinces. But, except in one most instructive instance, no such federation has been thought of. The instance in question was that of the Leeward Islands, where a voluntary federation was formed, by which five representatives from each island were formed into "a General Assembly to make general laws." But during the period of ninety-three years – from 1705 to 1798 – this Assembly only enacted one law. "The different Legislative Assemblies of the various islands being in full operation," 4 it was found that there were no interests of a general character for which such an Assembly was capable of legislating. And, after having had a nominal existence for 160 years, that existence finally ceased in 1832. The genius of Mr. Gibbon Wakefield had not then pointed out the colonies as a platform for the performances of statesmen.

There was also a federal union, for a time, of four of the New England Colonies for the exclusive purpose of defence against a common danger. Story, in his Commentaries, tells us that the Government of England acquiesced in this as being unable to defend them. It was the stormy period of the reign of Charles I. And Haliburton, in his History of Nova Scotia, informs us that this union procured them great respect from their French, Dutch, and Indian neighbours, but (in 1683) as soon as the danger which united them was at an end the union was dissolved.

There was another Act of Union, which is worthy of notice as exhibiting, on a limited scale, the mischiefs arising from

INCONSISTENT WITH THEIR CONDITION.

separate communities interfering with each other's local affairs: –

"After Penn had become proprietor of Pennsylvania, he purchased of the Duke of York, in 1662, all his right and interest in the territory afterwards called the Three Lower Counties of Delaware.

"In the same year, with the consent of the people, an Act of Union with the Province of Pennsylvania was passed, and an Act of Settlement of the frame of government, in a General Assembly, composed of Deputies from the counties of Delaware and Pennsylvania. By this Act the three counties were, under the name of "The Territories," annexed to the province, and were to be represented in the General Assembly, governed by the same laws, and to enjoy the same privileges as the inhabitants of Pennsylvania.

"Difficulties soon afterwards arose between the Deputies of the province and those of the territories; and, after various subordinate arrangements, a final separation took place between them, with the consent of the proprietary, in 1703, From that period, down to the American Revolution, the territories were governed by a separate Legislature of their own." – Story's Commentaries on the Constitutions of the United States, p. 86.

A federation of dependencies, with a general Government and Legislature, with jurisdiction overriding the powers of the separate local Legislatures, is not less a novelty than it is an anomaly in colonial polity. The General Assembly of the Leeward Islands possessed no such jurisdiction, and, not possessing it, they found no subjects of legislation. In all confederacies of ancient or modern times (that of the New Zealand Colonies excepted) the objects sought have been objects external to the members of the confederation; in other words, a united exercise of the functions of sovereignty in relation to foreign countries, which each possessed independently of the rest in its own internal concerns. But a dependency ca have no foreign relations. "It can make no treaty, declare no war, send no ambassadors, regulate no intercourse or commerce, nor in any other shape act as Sovereigns in the negotiations usual between independent States." 5 And the same is true of a federation of dependencies.

Leaving for the present the case of the petitions from the Colony of Auckland, let us give attention to some views of the constitutional relations of British colonies to the mother country, which necessarily spring out of the fundamental laws of the British Empire, as well as out of the reciprocal rights

RIGHTS AND OBLIGATIONS OF SOVEREIGNTY.

and duties of Sovereign and subject, but which appear during the last thirty years to have been gradually lost sight of.

In his address to the electors of the city of Oxford, Mr. Cardwell, the present Colonial Minister, is reported to have expressed himself in the following words: –

"It has been the policy, and I doubt not it will be more and more the policy, of this country to apply to the distant possessions of the Crown the liberal principles on which we act at home, to encourage in the colonies the spirit of self-reliance, to develope local energy and resource, and to confide in the loyalty of the colonists and their attachment to British institutions for the maintenance of those bonds which unite, under the British Crown, so many powerful and prosperous communities in every quarter of the globe."

It is proposed to test this policy by the results of its operation during the last thirty years – to show what is the nature of those "liberal principles" which have been applied to the Colonies, and have led to a gradual abdication of the functions of government, and a renunciation of the duties of sovereignty, until the Queen's subjects in her colonial possessions have been deprived of those safeguards to life, liberty, and property, which are their birth-right, and placed in subjection to an oligarchy who have been allowed to usurp a power which is inconsistent with their allegiance to the Crown, and which, not to speak of even greater evils, has overwhelmed the colonists with taxation and debt.

It is proposed to demonstrate the following propositions: –

1. That under one dominion there can be only one sovereign power, to which all other powers and authorities must necessarily be subordinate and responsible.

2. That this sovereign power owes protection to every member of its empire, however mean or remote.

3. That the laws of England will protect the colonial subjects of the Crown in the enjoyment of the rights and privileges which are secured to all Her Majesty's subjects by the fundamental laws of the empire, and that the Superior Courts of England will afford them redress from wrongs inflicted upon them by illegal authority, whether legislative or administrative, in the colonies.

4. That the Constitutions of colonies of British settlement, as embodied in Acts of the Imperial Parliament, are founded upon these principles, restricting the powers of the subordinate Legislatures of the colonies within the limits which are compatible with the sovereignty of the mother country and with the rights of each member of the empire.

THE SYSTEM CALLED RESPONSIBLE GOVERNMENT.

5. That the commissions and instructions to the Queen's governors are founded upon the same principles, conveying a delegation of certain portions of the Queen's authority, and containing no recognition of any power in the colonies to control the administrative acts of the governors so far as they are in accordance with law.

6. That there, nevertheless, has arisen in some of the colonies of the empire "a system called Responsible Government," which is absolutely incompatible with the obligations and duties of sovereignty, as well as with the provisions of the Constitution Acts of those colonies, and with the express instructions given by the Queen for the guidance of her colonial governors in the performance of their duties, which system the Queen's Secretary of State has in several instances formally recognised, and, in one instance, declared to be unequivocally established.

7. That, in the instance of New Zealand, the rebellions of the Maories, and the troubles which have afflicted the colonists settled in that country, may be traced, in part to the lax administration of the Colonial Office, in not maintaining the fundamental laws of the empire on which the integrity of British dominion depends; and in allowing the governors of the colonies settled in those islands to abdicate their proper functions, in favour of persons who have no legal authority to discharge them: and in part to an anomalous constitution of government, which has no precedent in colonial administration; but which was suggested by untrustworthy persons, as adapted to the accomplishment of their own ambitious and selfish projects.

In the ordinary language of the day those parts of the British dominions which lie beyond the confines of Great Britain and Ireland have come to be spoken of as if their relations to the empire were of a different character from those of the British Islands, the centre of the British dominion; as if colonies of British settlement were not integral portions of the empire, but attached to it by some unexplained relations which entitle them to what are called "the privileges of self-government," and which restrain the interference of the sovereign authority in all matters which do not involve what are called Imperial interests. What are Imperial interests, in contradistinction to interests which are not Imperial, has never yet been shown.

In days gone by our colonial settlements were looked upon exclusively as a means of promoting the wealth of the mother country, with which the Navigation Laws bound them to an

IMPERIAL INTERESTS.

exclusive trade. They had no liberty to sell their products or to purchase their requirements elsewhere than in the mother country. The trade with the colonies was a close monopoly. The colonists could neither purchase in the cheapest markets nor sell in the dearest. "The necessity of preventing the trade of the plantations from getting into foreign channels" was deemed a paramount principle of British policy, in support of which it was considered indispensable to array the naval and military force of the empire.

In such a state of things the words "Imperial interests" had a definite meaning about which there could be no misunderstanding. It was a settled principle that the mother country was entitled to all the profit she could derive by restricting the trade of the colonists; that colonial interests being separate from, if not antagonistic to, those of the mother country, the lesser interests must be subservient to the greater. Such a state of things has happily passed away. More enlightened views prevail with regard to the reciprocal benefits of Free-trade between distant countries. And it is now well understood that the interests of all are best promoted by allowing each individual and each community to pursue their own interests in their own way; at the same time that the unrestricted intercourse of Free-trade has, above all other means, tended to bind together distant countries in terms of friendship.

These considerations apply alike to colonial possessions and to foreign countries. But the colonial settlements of Great Britain have other ties upon the mother country than those of mutual gain and the good-will which springs from reciprocal benefits. The duties of sovereignty are not to be laid aside because the sovereign power has ceased to sacrifice the interests of the colonies to those of the mother country. The duty of protection remains in full force, and is inseparable from the relation of Sovereign and subject. This is a point of view from which colonial relations are seldom or ever regarded by politicians who take part in the discussion of colonial questions. The rights of colonists as members of the empire, entitled by their birth-right to the same privileges as their fellow-subjects at home, are treated as if they involved no obligations upon the mother country. To persons who are versed in public law it is unnecessary to adduce the authority of jurists for doctrines which require only to be stated in order to command their assent. But in view of the ideas which are constantly promulgated in relation to British colonists, it seems necessary to state, in the words of a writer whose authority is universally admitted,

RELATIONS OF SOVEREIGN AND SUBJECT.

the principles upon which the relations of Sovereign and subject are based, and the reciprocal rights and obligations which spring from those relations.

The principal obligations and duties of sovereignty, so far as they apply to our present subject, are laid down by Vattel in his treatise on the Law of Nature and Nations in the following passages: –

"Every true sovereignty is in its own nature unalienable.

"When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment or mother country, naturally becomes part of the State equally with its ancient possessions.

"The whole of the countries possessed by a nation and subject to its laws, forms, as we have already said, its territory, and is the common country of all the individuals of the nation.

"If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members. The nation owes this to itself, since the loss even of one of its members weakens it, and is injurious to its preservation. It owes this also to the members in particular, in consequence of the very act of association; for those who compose a nation are united for their defence and common advantage; and none can justly be deprived of this union, and of the advantages he expects to derive from it, while he on his side fulfils the conditions.

"The body of a nation cannot, then, abandon a province, a town, or even a single individual who is part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on public safety.

"The Constitution and laws of a State are the basis of the public tranquillity, the firmest support of political authority, and a security for the liberty of the citizens. But this Constitution is a vain phantom, and the best laws are useless if they be not religiously observed. It is very uncommon to see the laws and Constitution of a State openly and boldly opposed; it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men; they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked.

"To attack the Constitution of the State, and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are entrusted. The nation ought constantly to repress them with its utmost vigour and vigilance as the importance of the case requires."

But the law of England is not less explicit than the abstract conclusions of the jurist. The rights of a British subject are not affected by his removal to the most distant settlement of

CONSTITUTIONAL RELATIONS OF COLONIES

British subjects over which the Queen's dominion extends. He is there, as much as in England, entitled to the protection of the fundamental laws of the realm, by which the rights of life, liberty, and property are secured, and the powers of the executive Government limited and defined.

In most colonial Constitutions or charters of Government the power of making laws is restricted by the proviso "that such laws shall not be repugnant to the law of England." But even in cases where there is no such proviso the Superior Courts have always held, on appeals from the colonies, the invalidity of any colonial law which conflicts with the fundamental laws of the realm. This principle was laid down as of universal application by Lord Mansfield in the House of Lords in the year 1766, and it has been adhered to in all subsequent decisions of the Superior Courts of England. It is a necessary attribute of sovereignty. Subordinate Legislatures are essentially different from a Supreme Legislature. They have no original or independent authority. Their powers are derivative, and are limited to the objects of local regulation, for which they are created. They may make laws praeter but not contra to the laws of the realm. They cannot withdraw the subject from his allegiance, or come between the subject and the protection which is due to him from the sovereign power. These conditions necessarily spring from the very essence of sovereignty There can be no imperium in imperio. The national laws are the voice of the supreme power of the State, which cannot be delegated, which ceases to exist when it ceases to be paramount. To this all subordinate authorities must of necessity be subject, otherwise they cease to be subordinate authorities, and the kingdom is divided against itself.

The duties of Sovereign and subject, of protection and allegiance, have in all ages been held to be reciprocal. 6 The propositions which have been quoted from Vattel are not less deductions from universal history than necessary conclusions from indisputable principles. The meanest Roman citizen was entitled to appeal unto Caesar from every subordinate jurisdiction, and to have his appeal allowed.

In savage tribes each individual depends for protection on his own arm, and resents in person the wrongs he has suffered; but where a Government is established each subject of that Government instinctively looks to it for protection, in return for the natural liberty which he relinquishes. When a country

TO THE MOTHER COUNTRY.

is so far advanced in civilisation as to be governed by laws, each citizen is aware that the laws are intended for his protection as well as for his control, and he is entitled to look to the magistrate to procure him justice as defined by the laws which it is the duty of the magistrate to administer. This right of protection accompanies the citizen into foreign countries, and it is the duty of the sovereign power to secure to each of its subjects the protection of such laws as are in force in the countries where they may respectively sojourn, or which natural justice requires, in those countries where the will of the Sovereign is law. So well is this right, and the corresponding duty understood that the whole nation is stirred when any of its citizens are subjected to violence or wrong in a foreign country; even in cases where relief is absolutely impracticable, as in that of the British officers who were some years ago imprisoned, and finally murdered at Bokhara; or in the more recent case of the British Consul and missionaries in Abyssinia, where its enforcement would be most difficult. Indifference in such cases could not fail to invite aggression, and true wisdom requires that no proved oppression should be passed over without adequate compensation being exacted. A recent instance of this was the exaction of a heavy fine from the Government of Japan for the murder of two British subjects in that country. If this be the case in foreign countries, a fortiori is protection due to British subjects in a British province where oppression, if it occur, must be the act of some person or persons to whom a certain authority is delegated, the extent and exercise of which are defined by law, or by instructions having the force of law.

But within the last thirty years a different theory has been tacitly assumed and acted upon. It appears in practice that the Queen's colonial subjects who have got representative institutions are to be subject to the local authorities even when their action is illegal, and are to have no appeal to their Sovereign for redress of injuries if committed by an abuse of the powers delegated to subordinate authorities.

It is true that there is no authority or justification for such a practice to be found in any Act of Parliament giving a Constitution of local government to a settlement of British subjects, or in any instructions to a colonial governor founded upon such Acts of Parliament; such an authority would be equivalent to a transfer of the allegiance of British colonists from the Queen to the local authorities.

But it has nevertheless been gradually assuming shape and consistency, till it is to be found openly avowed in despatches,

A NEW SYSTEM OF

and it has become a matter of course to condone or allow illegal statutes, and to permit the Queen's governor to make the will of a majority the rule of his conduct, howsoever at variance with the law or the Queen's commission and instructions. The beginnings of this change have been in part told by Sir Francis Head. The concessions made by the Government to the Assembly of Lower Canada, which were quite unexampled in their liberality, having failed to disarm the hostility of the Democratic leaders, the rebellion ensued, and, the Constitution being suspended, Lord Durham was sent out to that colony as Governor-General and High Commissioner, with special instructions and powers. He was accompanied by two persons whose Democratic tendencies might be the result of their forfeiture of the moral status, the loss of which so often drives the party politician to extreme views. So notoriously was this the case, that Lord Wicklow in the House of Lords called the attention of the Prime Minister to the fact.

On Lord Durham's return to England, deeply offended because it had been necessary for the Imperial Parliament to pass an Act of indemnity to relieve him and other persons acting with and under him from the consequences of an illegal ordinance, he published a "posthumous report," which, says Sir Francis Head, "the Imperial Parliament, under the protest of the late Duke of Wellington, determined to adopt or swallow as the basis of a new system of legislation for the Canadas and for the rest of our American Colonies, although they well knew that a considerable portion of it had been written by two persons who had been convicted by the tribunals of England of offences of an unusual character. Indeed, that not only had one of them, as a felon, been sentenced to imprisonment in Newgate for three years, but that on the 6th of June, 1827 (see Hansard), Sir Robert Peel in the House of Commons, in denouncing the fraud, the forgery, and the villany he had practised, added: – 'Hundreds of delinquents much less guilty had been convicted of capital offences, and had forfeited their lives'" "The allegations against the loyalists in Upper Canada contained in that 'report,' signed by Lord Durham, were declared by three Lieutenant-Governors and the Legislature of Canada to be untrue, and utterly unsafe to be relied on." But while "the Canadian loyalists were treated with marked neglect, the leaders of the rebellion, men for whose apprehension large rewards were offered, were promoted to the most honourable appointments in the colony."

It did not require much communication with the late Sir

COLONIAL ADMINISTRATION.

James Stephen to become aware that he considered it a folly to attempt to govern distant colonies from England; and that the perplexities occasioned by the attempt to do so could only be avoided by leaving them to govern themselves. In a despatch dated from Toronto, 19th December, 1837, Sir Francis Head, then Lieutenant-Governor of Upper Canada, thus addresses the Secretary of State: –

"My Lord, – It has long been notorious to every British subject in the Canadas that your lordship's Under-Secretary, the author of our colonial despatches, is a rank Republican. His sentiments, his conduct, and bis political character, are here alike detested, and I enclose to your lordship Mr. M'Kenzie's last newspaper, which, traitorous as it is, contains nothing more conducive to treason than the extracts which, as its texts, it exultingly quotes from the published opinions of Her Majesty's Under-Secretary of State for the Colonies.

"As I entertain no sentiments of animosity against Mr. Stephen, it has been with very great reluctance that I have mentioned his name; but being deeply sensible that this province has been signally protected by an Omnipotent Providence during the late unnatural rebellion, I feel it my duty, in retiring from this Continent, to divulge, through your lordship, to my Sovereign my opinion of the latent cause of our unfortunate misgovernment of the Canadas. – I have, &c., (Signed) "F. B. HEAD."

"This plain statement to the Queen by her Lieutenant-Governor was corroborated by the following official documents, addressed to Her Majesty by the two other branches of the Canadian Parliament: –

"Extract of a Report, dated February 8, 1838, of a Select Committee of the Commons' House of Assembly, on the political state of the Provinces of Upper and Lower Canada. Printed by order of the House, with an address to the Queen.

"In the year 1828, James Stephen, Esquire, then Counsel, and since advanced to the office of Under-Secretary of State to the Colonial Department, in his evidence before the Select Committee of the House of Commons on the affairs of Canada, advanced the following opinions with reference to these provinces: –

"The ties by which the people are bound to their Sovereign are not of the same strong and enduring character as the corresponding obligations between the King and the people of the old European States. It is impossible to suppose the Canadians dread your power: it is not easy to believe that the abstract duty of loyalty, as distinguished from the sentiment of loyalty, can be very strongly felt. The right of rejecting European dominion has been so often asserted in North and South America, that revolt can scarcely be esteemed in those Continents as criminal or disgraceful. Neither does it seem to me that the sense of national pride and importance is in your favour. It cannot be regarded as an enviable distinction to remain the only dependent portion of the New World.

ORIGIN OF THE NEW SYSTEM

"Your committee pretend not to say that any individual was influenced by the use made of Mr. Stephen's opinions – they hope otherwise; but they well know that their promulgation has excited a deep feeling of regret in the mind of a very numerous and respectable class of the learned gentlemen's fellow subjects in these provinces, and has led many to consider whether past mal-administration of our affairs may not fairly be attributable to the influence necessarily exercised by a person holding his highly responsible and confidential situation in Downing-street; and if so, whether that influence can be continued without danger to our future prosperity.

"In a report and address to the Queen, dated Feb. 28, 1838, from the Honourable the Legislative Council of Upper Canada, and printed by order of the House, it is stated that 'in this declaration (of Mr. Under-Secretary Stephen) the positions are advanced that allegiance to the British Crown must be expected to be regarded in Canada rather as a sentiment than a duty; that no fear of the power of Great Britain can reasonably be entertained by its inhabitants; that revolt against European dominion cannot be considered anywhere upon the Continent of America as criminal or disgraceful, and that it can be regarded as no enviable distinction to he the only dependent portion of the New World.' But the Legislative Council state that 'it is fit the British nation should know that the feelings and consciences of the great mass of the people of Upper Canada revolt against these sentiments.' It is stated by Sir F. B. Head that the last words quoted in italics were placarded by Mr, Mackenzie on the day of his insurrection in Upper Canada."

It may be doubted whether Sir. Tames Stephen's sentiments of duty were sufficiently lively to induce him to postpone his literary labours for the drudgery of investigating colonial complaints. It was easier to give way to the pressure of colonial politicians than to incur their hostility by maintaining and enforcing law and right. To allow colonists "to manage their own affairs, and to settle their differences amongst themselves," was an easy way of evading troublesome questions, while it had a specious air of "liberality" which was sure to obtain the applause of public writers who adopt the cant terms of the day, and can see no merit in administration which recognises duty as a more cogent motive of conduct than a regard to what such writers choose to designate public opinion. It is certain, however, that the mantle of Sir James Stephen has fallen upon his successors in the Colonial Department of the State, and that his spirit has continued to rule in their deliberations.

It is not easy to conceive a higher or more sacred trust than that which is reposed in the Secretary of State for the British Colonies. Nearly six millions of his fellow-subjects are dependent upon his vigilance and faithfulness for the maintenance of those laws which protect their dearest privileges and rights.

OF COLONIAL ADMINISTRATION.

Colonists have no representatives in the British Parliament who feel bound to protect their rights from that sense of obligation which members feel to those who elected them. Nor are they so connected with any department of the State, or with the Bar, the Army, or the Navy, as to obtain that sympathy and support which members of those several bodies are sure to receive from the esprit de corps which exists amongst them. From the aggressions of foreign enemies the State has always maintained its readiness to protect them, but it has ignored, if not absolutely repudiated, the obligation to protect them from the oppressions and injuries to which colonists are liable from the abuse of power delegated to local authorities; although this may be the occasion of injuries as extensive and probably more lasting than any which a foreign enemy would be likely to inflict. To this extent is the doctrine of Sir James Stephen carried, on the alleged grounds that it is impossible for the Home Government to do justice to cases occurring at the distance of half the globe, and that colonists to whom representative institutions have been granted are entitled, as they are best qualified, to manage their own affairs. It must be admitted that no doctrine has ever received from the press and public of England more general acceptance. And yet it is not difficult to demonstrate that no doctrine could be more entirely fallacious. The proper objects of government are the peace and well-being of the community, and these objects can only be obtained by institutions founded in truth and justice, and by strict adherence to truth and justice in all departments of the public service.

As regards the colonial settlements of Great Britain, the problem is to secure to British subjects who are settled therein the privileges to which they are entitled as members of the British empire. In their political relations to the mother country colonies of British settlement differ from the ancient Greek Colonies, which ceased to owe to the mother State any allegiance, or to be entitled from it to any protection, from the day the adventurers quitted the shores of Greece to search out and occupy a less crowded country. They differ also from the Coloniae and Municipia of the Romans, most of these having been rather military settlements in a conquered country, of which most of the inhabitants were not entitled to the privileges of citizenship, than voluntary associations of citizens seeking in the unoccupied lands of a distant country a better return for labour and capital than could be obtained at home.

Unlike the Greeks, British colonists cannot divest themselves

CONSTITUTIONAL STATUS

of their allegiance to their Sovereign, nor do they become the less members of the empire, or less entitled to all the privileges which belong to members of the empire, than before they quitted their native country. These privileges are their birthright and are defined by law.

When the Romans established municipalities in conquered provinces, and gave to the inhabitants the privileges of Roman citizenship, they neither abdicated the functions of sovereignty nor divested the citizens of their right of protection from the abuse of local authority. When the Empire was in its vigour the words Civis Romanus sum (I am a Roman citizen) were a sufficient protection as well from the abuse of delegated authority as from foreign aggression. When this ceased to be the case the Empire was verging to its fall.

Nor were the obligations of sovereignty held less sacred by the Sovereign of England before the fatal admission of such counsels as those of Sir James Stephen and Mr. Gibbon Wakefield, and their adoption by the Colonial Department. In a despatch from Lord Glenelg to Sir F. B. Head on his appointment to the Government of Upper Canada, dated 5th December, 1835, the following passage is to be found: –

"Until the last session of the Provincial Parliament, though with occasional remonstrances, it may be affirmed that generally there subsisted a spirit of amicable co-operation between the Executive Government and the Legislature. Their remonstrances were the first indication of any grounds of complaint, and therefore the Queen's Ministers cannot be charged with indifference. My predecessor, the Earl of Ripon, in his despatch of the 8th November, 1832, to Sir J. Colborne, was commanded by the King to state that 'there was no CLASS OF THE CANADIAN PEOPLE, NOR ANY INDIVIDUAL AMONGST THEM, TO WHOSE PETITIONS HIS MAJESTY DID NOT REQUIRE THAT THE MOST EXACT AND RESPECTFUL ATTENTION SHOULD BE GIVEN.'"

This was the true spirit of sovereignty; and those who had access to the despatches to the Governors of the Australian Colonies in their early days, are well aware that those despatches were pervaded by the same spirit. The affairs of the Canadas were investigated with the utmost care by a Committee of the House of Commons in 1828, and subsequently by Commissioners sent from England to investigate their alleged grievances on the spot. Nothing could exceed the paternal regard for the general and Individual wishes of the colonists which the instructions to those Commissioners evinced. It was stated that "every class of the King's subjects has an equal title to invoke

OF BRITISH COLONISTS.

the aid of His Majesty's prerogative, either for their protection or their benefit."

The recommendations of the Committee of the House of Commons on Canada were received with the highest satisfaction by the Colonial Houses of Assembly. In an address from the House of Assembly of Lower Canada, in relation thereto, the following passage occurs: –

"The charges and well-founded complaints of the Canadians before that august Senate were referred to a Committee of the House of Commons, indicated by the Colonial Minister, that Committee exhibiting a striking combination of talent and patriotism, uniting a general knowledge of public and constitutional law to a particular acquaintance with the state of both the Canadas, formally applauded almost all the reforms which the Canadian people and their representatives demanded and still demand. After a solemn investigation, after deep and prolonged deliberation, the Committee made a report, an imperishable monument of their justice and profound wisdom, an authentic testimonial of the reality of our grievances and of the justice of our complaints, faithfully interpreting our wishes and our wants. Through this report, so honourable to its authors, His Majesty's Government has become better than ever acquainted with the true situation of their province, and can better than ever remedy existing grievances."

In reference to this address, and to the recommendations of the Committee, of which it so highly approves. Lord Aberdeen uses the following language: –

"On a review of all the subsequent correspondence, Lord Aberdeen finds himself entitled to state that, in conformity with the express injunctions and the paternal wishes of the King, His Majesty's confidential advisers have carried into complete effect every suggestion offered for their guidance by the Committee of the House of Commons."

The condition of Lower Canada differs in the most essential particulars from other provinces of British dominion. Originally a conquest from the French, its population at the time this address was issued consisted of four colonists of French to one of British blood. For many years after the Conquest they sat contented with the beneficent treatment they met with from the British Government, which guaranteed their rights of property, and respected their laws, and customs, and religion.

In the year 1791, the French province of Quebec was divided into the provinces of Upper and Lower Canada, to each of which was given a representative Legislature on the model of the British Government. It appears evident that when "the

INNOVATIONS FIRST INTRODUCED

Act giving the French inhabitants of Lower Canada a separate Constitution and restoring their own civil law, an act full of benefits and privileges for those newly-acquired subjects of the Crown," was introduced, they were incapable of appreciating or availing themselves of its advantages, and that for a period of more than a quarter of a century the local Government acted without any control on the part of the Assembly.

It is not surprising that abuses should have crept into the Administration, that grave causes of complaint should have arisen, and that men should at length have been found to seek distinction in the Legislature who were capable of understanding those abuses and the remedy for them.

The Departments of War and the Colonies, now separate departments of the British Government, were conducted under the same Minister till after the Peace of 1815, and it is easy to understand that little time could be spared from the conduct of such a war for attention to the affairs of the colonies. The complaints of the colonists were of the malversation of receivers of the revenue, and commissioners for its expenditure, of sheriffs becoming insolvent, with the assets of suitors in their hands, and of abuses in the management of the public lands. In addition to these abuses of administration they complained of the exclusion, with very few exceptions, of the French from the Legislative and Executive Councils, and from the offices of the Government. To all these complaints the Government and Legislature of England lent a patient ear, and, as has already been stated in the words of Lord Aberdeen, every redress was afforded which was consistent with the honour of the Crown, and the duty of maintaining its supremacy for the protection of all the subjects of the Crown.

It was stated by one of the witnesses who had been for seventeen years a member of the Assembly, and had brought home a petition from the English portion of the population, in his evidence before the committee of the House of Commons, that "the truth is, the best of the French Canadians will take very little part in the public affairs of the community; these affairs are in the hands of lawyers, doctors, notaries, surveyors, small traders, tavern-keepers, and mechanics." As to the social well-being of the people, the Commissioners state: – "When we look at what Canada is, and still more, when we thin. c of what, but for the political dissensions, she might be, we must deny that the condition of a British colony is an unenviable one. Every inhabitant of it, if he be of an ardent or aspiring character, has a wider field for the exercise of his ambition

IN CANADA.

(being a British subject) than he could have under any other dominion in the world; and if content with the humble occupations of life, there is no part of the globe where he can pursue them more safely than here, or with a more certain prospect of his industry finding its reward. There is no country in which taxation is lighter or individual security greater, none more exempt from physical or moral evil, and to the enjoyment of this state one condition only, and by no means an onerous one, is attached, that of a due submission to the easy authority that protects and upholds it." With every actual abuse redressed, and with every amendment in the Administration which was necessary to prevent further abuses accorded so far as was compatible with the integrity of the sovereign power, and the duty it owes to all its subjects, what, then, was necessary to ensure peace and prosperity but a firm hand in maintaining law and order, and convincing demagogues who sought their own aggrandisement at the expense of the well-being of the community, that by becoming legislators they did not cease to be subject to the law.

In Upper Canada, which was originally settled by loyalists from the old provinces of America at the time of the disruption of those provinces from the mother country, the colonists remained loyal to the British Crown, and attached to the well-understood forms of government which had stood the test of two centuries of experience in the older colonies. But even there there were not wanting men whose ambition prompted them to disturb the public peace in order to bring about such changes in the Constitution as would open to them the doors of office, and the disposal of its patronage.

The Government of Lower Canada had been able to sustain itself against an overwhelming majority in the House of Representatives, by the command of the hereditary revenues of the Crown in that colony which had never been placed at the disposal of the House of Representatives. Amongst other recommendations of the committee of the House of Commons was one, that all the public revenues should be placed under the control of the Assembly, on their providing a permanent civil list for the maintenance of the Executive Government and the administration of justice. Lord Goderich, who was then principal Secretary of State for the Colonies, thought a display of confidence in the Lower House could not fail to produce a generous recognition of the privileges thus accorded to them. He passed a bill through Parliament placing the hereditary revenues at the disposal of the elected representatives of the

FIRST ADMINISTRATION OF THE

people, not doubting that they would recognise the obligation of providing a civil list; but he mistook the character of the men. Having thus obtained the legal disposal of the public revenue from all sources, they made use of it to insist upon the Legislative Council being made elective. They refused to vote any money for the public service till this demand was complied with, and left the judges and other servants of the public without the income which had been promised them on their appointment by the Crown for upwards of four years, and forced upon the Government the necessity of suspending the Constitution.

There are few more humiliating pages in the history of any country than the insurrection which resulted from this step, promoted by demagogues in Upper and Lower Canada, in the apparent confidence that their rebellion, if not looked upon with favour by influential men in England, would at least be treated with leniency. Put down by the energy of Governor Sir Francis Head and the loyal colonists of Upper Canada, and by the Queen's forces in the Lower Province, they nevertheless carried their point of making the local Government subservient to their ends, and obtained the assent of the Queen's Governor to an Act to compensate the rebels for the destruction they brought upon themselves, the very men who wer taken with arms in their hands in resistance to the Queen's authority being voted the value of the weapons with which they had opposed the Queen's forces in the field.

It is not proposed to write the history of the Canadas, but it has been thus far necessary to refer to it in order to trace the origin of that influence in the Colonial Office which rendered the needful reforms of no avail, because it encouraged the colonial demagogues and agitators to disregard all reforms unless accompanied with such organic changes of the Constitution as would transfer the powers of Government from the Queen's Governor to themselves. The change sought by the majority of the House of Representatives, was that the Legislative Council should be made elective, in regard to which Lord Glenelg, in his instructions to the Commissioners, states that –

"'The King is most unwilling to admit as a matter of deliberation the question whether one of the vital principles of provincial government should undergo alteration. The solemn pledges so repeatedly given for the maintenance of that system, and the just support which it derives from constitutional usages and analogies, are alike opposed to such innovation, and might seem to preclude the discussion of it.' 'It must be recollected that

AUSTRALIAN COLONIES THAT OF A PENITENTIARY.

the form of provincial Constitution in question is no modern experiment, nor plan of government in favour of which nothing better than doubtful theory can be urged. A Council nominated by the Crown, and possessing a co-ordinate right of legislation with the representatives of the people, is an invariable part of the British Constitution in all the transatlantic possessions of the Crown, with the exception of those which still remain liable to the legislative authority of the King in council. In some of those colonies it has existed for nearly two centuries. Before the recognition of the United States as an independent nation, it prevailed over every part of the British possessions in the North American continent, not comprised within the limits of colonies founded by charters of incorporation. The considerations ought, indeed, to be weighty, which should induce a departure from a system recommended by so long and successful a course of historical precedent.'"

The foundation of the Australian colonies towards the close of the last century had, to all appearance, introduced a new system into the government of colonies. But when it is considered that those were not at first free settlements of British subjects, but penal establishments for the punishment of crime, it will be at once apparent that the principles of free colonisation were not applicable to them. In the course of time, however, as free settlers resorted to the Australian colonies, the despotic rule of a penitentiary gave way to a mixture of representative institutions; and in the year 1840, the British Government was prepared to extend to the Australian colonies the same representative institutions which had stood the test of two centuries in most of the early American settlements. About the same time a very able and elaborate report had been prepared by the Board of Trade upon colonial Constitutions. In that report, while it was held that the abstract excellence of the old model was unquestionable, it was nevertheless maintained that much deference was due to the opinions and wishes of the colonists themselves. And in consequence of the then existing Assembly having expressed by a formal resolution their preference for a single House of Legislature, it was considered expedient to frame a Constitution for New South Wales in accordance with that preference, rather than with ancient constitutional precedent.

The same spirit of concession to the popular voice, or what was supposed to be the popular voice, was manifested towards Canada; and has since been acted upon, not only in the framing of Constitutions supposed to be agreeable to the wishes of

LORD DURHAM'S REPORT

the colonists, but in making provision for the alteration of those Constitutions by the authority of the local assemblies. But Constitutions, even when sound in their basis and upright in their organisation, are of themselves but of secondary importance, compared with the spirit in which they are administered. However necessary as the framework of the body-politic, Constitutions at the best are but the dry bones and integuments of government, and require to be continually animated and directed by an upright spirit, in order to secure the well-being of the community. The spirit of concession did not stop with the framework of Constitutions. The report of Lord Durham on Canada, while admitting the existence of abuses sufficient to account for the hostility of the Assembly, and to induce them for four successive years to refuse the supplies, assumed the necessity, not only of a redress of those abuses, but of organic changes in the system of administration, in order to its harmonious working.

It assumed, as incident to the existence of a House of Representatives having the control of the public purse, the necessity of conforming the measures of administration to the requirements of a majority of that House. In effect it claimed for the third branch of the Legislature the functions of executive government, as well as a co-ordinate right of legislation with the Governor and the Legislative Council, and the constitutional control of the public purse.

This pretension was set up as being in strict conformity with the working of the British Constitution in the mother country. It was assumed that the Governor of a colony stood in the same relation to his subordinate functionaries as the Queen to her responsible Ministers, and that those subordinate functionaries stood in the same relation to the elected representatives of the colonies as the Queen's Ministers to the House of Commons; and from these assumptions it was inferred that if the functionaries of the Governor were unable to carry his measures through the Assembly, they ought to give way to functionaries who could succeed in doing so. This assumed obligation, if not formally admitted, was at least acquiesced in by the home authorities; and the new system of administration founded upon it, which made the Governor a mere tool in the hands of the leaders of the Assembly, having been introduced, first into Canada, and subsequently into all colonies where it was required by the popular leaders, was called "responsible government." It was shown by Lord Brougham, in the House of Lords, that the views thus represented were alien to the

ON CANADA.

true principles of the British Constitution, as well as to the practice of the British Government; and it is remarkable that there was no statesman who took any part in the discussions, in either House of Parliament, which arose out of the affairs of Canada who did not insist upon the incompatibility of the principle involved in the recognition of such a system with a due regard to the maintenance of the public faith and the honour of the Crown; and by none was this incompatibility more insisted upon than by Lord John Russell himself, although, as Secretary of State for the Colonies, he gave way to the pressure of colonial politicians and acquiesced in its adoption.

It is important to show the views held by our leading statesmen on this anomalous innovation. Lord Brougham states: –

"A notion sprung up at one time which was very much encouraged by Lord Durham and his party, which goes by the name of 'responsible government!' If I were to say that I clearly understand what is meant by the term, I would be arrogating to myself a degree of perspicacity to which I have no right; I should, moreover, be invidiously placing my intellect in contact with that of my noble friend at the head of the Government. The principle of responsible government is this, that whoever governs a colony (and it is not confined to Canada) is, if I understand it at all – but my noble friend. Lord J. Russell, not being able, as he says, to understand it, I may be excused if I mistake – however, I believe it to be that whoever governs a colony he shall be bound to choose as his Ministers whomsoever the Legislature of the colony is disposed to give its confidence to. And further, whatever be his opinion of their conduct, so long as the confidence continues, he cannot remove them. Now if it be supposed that this is a copy of the Constitution of the mother country, there cannot be a greater mistake. The Ministers in this country are the organs of the Crown. They are responsible to Parliament. But the principle is one of give and take. The Crown has the choice of selection and dismissal, and the Parliament of refusal; and, therefore, both Crown and Parliament have a somewhat similar, though, in cases of irreconcileable differences, not unequal influence. And here Mr. Bentham made a great mistake when he wholly neglected- the operation on both parties of the fear of differences producing collision, and described all balances and checks as only bringing government to a standstill; for he did not consider that the Crown will give up a little not to bring things to extremity with the Parliament, and

OPINIONS OF STATESMEN ON THE

the Parliament will give up something not to bring matters to extremity with the Crown. But in the colony we are told to regard as the English Constitution one which gives the whole povser to one party in Parliament and leaves nothing to the Crown. This is called 'responsible government.' Well, then, our Ministers gave them (the Canadas) responsible government – that is to say, gave them the power of naming the Ministers, who, though appointed by the Government, are voted by the Assembly, and are kept as long as the Assembly please to keep them and to make them the instruments in their hands of executing their designs. Such is the construction put upon responsible government in the colonies; and Lord Elgin, I see, has put this construction upon it; indeed, but for such a construction, nobody could ever have dreamt of appointing Mr. Lafontaine." 7

The following are quotations from the speech of Lord John Russell on opening the debate on the Canada question in the House of Commons on 6th March 18. 37: –

"The first demand of the Assembly is, that the Legislative Council, having hitherto been nominated by the Criwn, shall, for the future, be an elective Assembly. The next is, that the Executive Council shall be a responsible Council, similar to the Cabinet in this country. Another is, that the law of tenures shall be changed, without respecting the rights acquired, under an Act passed by the British Parliament. And the fourth is, that the Land Company shall be abolished, with a similar disregard of the rights acquired under the same Act.

"The relations between the mother country and the colony require that his Majesty should be represented, not by a person removable by the House of Assembly, but by a Governor sent out by the King – responsible to the King and responsible to the Parliament of Great Britain. This was the necessary Constitution of a colony."

As to the responsibility of Ministers, he says: –

"Of course the Governor must act according to their advice. If the Assembly do not trust those Ministers, if they do not think them fit, they must be removed, and others put in their places. The person sent out by the King as Governor, and those Ministers in whom the Assembly confided, might differ in

SYSTEM CALLED RESPONSIBLE GOVERNMENT.

opinion, and there at once would be a collision between the measures of the King and the conduct of the representative of the colony. But this proposition would tend not only to produce disputes, not merely to try the King's authority, but it would tend to introduce authorities totally incompatible with the authority which the King seems to have over every colony. There is an obligation, for instance, on the Government of this country to prevent any British subject being injured with impunity. If the Executive Council be appointed through the influence of the House of Assembly, the consequence would be that the Ministers thus appointed must carry into effect the Acts of the Assembly, and must deprive persons of land or other possessions, though holding them under the laws of this country, and by virtue of an Act of Parliament.

"That part of the Constitution which requires that the Ministers of the Crown shall be responsible to Parliament, and shall be removable if they do not obtain the confidence of Parliament, is a condition which exists in an Imperial Legislature, and in an Imperial Legislature only. It is a condition which cannot be carried into effect in a colony. It is a condition which can only exist in one place – namely, the seat of the empire.

"But there would be this anomaly also: if Canada were really independent, if any subject of Great Britain were wronged there, the King of Great Britain, as in the case of any-other foreign Power, could interfere to see that the wrong was redressed. But, as matters stand, if the propositions of the Assembly were agreed to, the King would have less power to interfere on the banks of the St. Lawrence than on the banks of the Danube or Bosphorus."

Mr. Labouchere, now Lord Taunton: –

"As long as the colony of Lower Canada remained part of the British Empire, he would not consent to anything that would tend to the degradation of the British Crown. He would not consent to abandon that high privilege and duty of Parliament to see that no act of injustice or oppression was committed in any part of the British dominions, wherever they might be."

Lord Stanley, now Earl of Derby: –

"The great body of British settlers in Lower Canada who went out there on the faith of finding there a copy of their free

OPINIONS OF STATESMEN ON THE

national institutions, of enjoying their national rights and national laws, were as opposed as the inhabitants of Upper Canada were to any of the innovations of French Republicanism.

"Next, a few observations on the subject of the Executive Council. This body were to act as advisers of the Governor on affairs of State, when required so to do, something after the manner of our Privy Council. Here the demand was, that the Executive Council should be rendered directly responsible to the House of Assembly. Here, again, was confounded altogether the wide and manifest distinction between an independent and a subordinate State: the King was subordinate to no one; the King's Ministers were responsible for him to the country; but what was the position of the Governor of a colony? He was responsible to the Crown here, to the Ministry here; he acted under the orders of the Ministry, and for his acts were the Ministry responsible to the Legislature. To impose on him, then, a double responsibility – a responsibility to the Government at home if he did not obey their instructions, and a responsibility to the House of Assembly if he acted contrary to their orders – would be to constitute two independent Legislatures interfering with, and counteracting, each other."

Extract of a despatch from Lord John Russell to Lord Sydenham, dated Oct. 14, 1839: –

"It appears from Sir George Arthur's despatches that you may encounter much difficulty in subduing the excitement which prevails upon the question of what is called "responsible government." I have to instruct you, however, to refuse any explanation which may be construed to imply an acquiescence in the petitions and addresses upon this subject. The power for which a Minister is responsible in England is not his own power, but the power of the Crown, of which he is, for the time, the organ. It is obvious that the Executive Councillor of a colony is in a situation totally different. The Governor under whom he serves receives his advice from the Crown of England. But can the Colonial Council be the advisers of the Crown of England? Evidently not; for the Crown has other advisers for the same functions, and with superior authority. It may happen, therefore, that the Governor receives, at one and the same time, instructions from the Queen and advice from his Executive Council totally at variance with each other. If he is to obey his instructions from England, the parallel of Con-

SYSTEM CALLED RESPONSIBLE GOVERNMENT.

stitutional responsibility entirely fails; if, on the other hand, he is to follow the advice of his Council, he is no longer a subordinate officer, but an independent Sovereign."

Mr. Gladstone quoted, with approbation, another passage from Lord John Russell's despatches: –

"There are cases of internal government in which the honour of the Crown, or the faith of Parliament, or the safety of the State are so seriously involved, that it would not be possible for Her Majesty to delegate her authority to a Ministry in the colony."

The following extracts are from a report of the Board of Trade in relation to the preparation of new Constitutions for the Australian colonies, dated April 4, 1849: –

"Although, in some cases, other schemes of colonial polity had been at first established, yet those schemes had all, with one exception, progressively been brought, before the end of the eighteenth century, into conformity with this general type or model – viz., 'of a Governor appointed by the Sovereign, of a Council nominated by the Sovereign, and of an Assembly elected by the people.'

"We think 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. We also think it wise to adhere as closely as possible to our ancient maxims of government on this subject, and to the precedents in which those maxims have been embodied. The experience of centuries has ascertained the value and the practical efficiency of that system of colonial polity to which those maxims and precedents afford their sanction."

In the latest and ablest work on Colonial Constitutions it is affirmed that "now self-government for colonies is amongst the most popular and fashionable theses of the day, both with those who are and with those who are not accurately informed upon the subject." "It is manifest," says Mr. Arthur Mills, 8 "that the local administrators of a system so critically devised must be subjected to the perplexing and ever-recurring conflict of an inconsistent allegiance to two masters, the Colonial Assembly and the Sovereign of England. But nevertheless, 'responsible government' must be regarded as an accomplished fact, a system, the success or failure of which must depend mainly on the tact and talent of the Queen's representative."

UNFOUNDED PRETENSIONS OF THE SYSTEM

But the truth is, that what is called the "success" of the system depends less upon the tact or talent of the Queen's representative than upon the facility with which he is disposed to ignore the obligations of his commission, and to become the mouthpiece of whatsoever persons may acquire the lead in the Assembly. The truth that no man can serve two masters is universal in its application, to governors as well as to private men.

The system called "self-government," or "responsible government" in colonies, has also been designated by various other terms, such as "constitutional government," "parliamentary government," "representative government," and "party government," each of these terms involving its own peculiar ambiguity. When an identity of position is assumed as existing between the Governor of a colony and the Queen of England, it seems to be forgotten that by the law of the British Constitution the King or reigning Queen of England can do no wrong; no public act of the King or Queen being of any legal validity unless the instrument by which it is attested is countersigned by a Minister of State, whom the law makes responsible. And that consequently the analogy fails in its most important particular, because a colonial Governor is not only subject to legal penalties should he exceed his lawful authority, but answerable to the Government and Parliament of England for the manner in which he has executed his commission, and carried out the instructions which are framed for his guidance in conformity with the Constitution of the colony which he is appointed to govern. Nor is there more analogy between a colonial Assembly, with its subordinate and restricted powers of legislation, and the Parliament of England, with its original jurisdiction and supreme authority, than between a colonial Governor and his subordinate functionaries, and the Queen of England and her Ministers of State.

It is evident, therefore, that the pretensions put forth in support of the system of administration in the colonies, called "responsible government" on the ground of its analogy to the system of British government in England, are altogether unfounded. They do not rest upon any basis of truth, or of sound reason. Moreover it may well be questioned whether the idea of responsibility to the vote of a majority is not as unphilosophical in the conception, as it has proved absurd in the issue when votes were equally balanced – as, for instance, in the two last changes of Ministry in New Zealand, which were accomplished, in one case by a majority of one vote, and in the other case by the casting vote of the Speaker.

CALLED "RESPONSIBLE GOVERNMENT."

The pretentious assumption of the designation "responsible government" in favour of such a system, implied that under the old system of colonial government there was no responsibility. But it only requires a little investigation into the facts of the case to make it apparent that the real responsibility for good government was as truly and altogether on the side of the former system, as it is wanting in the system which has replaced it.

In the legitimate sense of the word, responsibility implies the existence of a sentiment of duty, as well as of a certain ascertained or ascertainable standard to which it can be referred: to the enactments, for instance, of a law; to the commands of a superior; or in the highest sense to the revealed will of God, and of that conscience of right and wrong which He has implanted in the hearts of His rational creatures.

When an officer of rank and reputation was appointed by the Crown to govern a colony, he was responsible in all these senses. He had the law and his instructions for his guide. It was due to the rank and reputation he had acquired that he should exert himself to do justice to the qualifications by which he had acquired that rank and reputation: that he should govern lawfully and well in the eyes of the authorities which appointed him, as well as in the eyes of the British public and Parliament. Measured by so high a standard the rule of duty and conscience was his safest guide; and not only so, but self-interest, honour, and ambition, alike prompted him to adhere to the oldest and most authoritative of all maxims of administration, "He that ruleth men must be just, ruling in the fear of God." But it is far otherwise with those whose tenure of office rests, not upon the fulfilment of a duty, but upon the vote of a majority – of those who can only retain their position by consulting and ministering to the ever-varying but ever-selfish interests of the clique of colonial politicians by whose votes they acquired office and must be retained in it. If there could have been any difficulty in determining such a question in the abstract, that difficulty is removed by the experience of twenty years; affording ample evidence that the concentration of the powers of government in the democratic branch of the Constitution, and the abeyance of the constitutional checks which form the true excellence of British institutions, lead to a trade in the offices and transactions of government, which is sure sooner or later to be monopolised by the least scrupulous traders, and made disastrous to the colonists as well as disgraceful to the mother country. There is not one of the colonies in which the system called "responsible government" has been estab-

"RESPONSIBLE GOVERNMENT" INCOMPATIBLE

lished that does not afford evidence of this; and of the monstrous sacrifice of the public interests which has resulted from it.

But it is not only that what is called self-government by such a system, in colonies, is incompatible with the welfare of the community – the true object of government. It results from the very nature of sovereignty that self-government in any province of an empire, unless that term is applicable to the regulation of subordinate matters, is incompatible with its obligations and duties. Sovereignty being inalienable, there can be, from the nature of the case, only one sovereign authority under one dominion. If there be a delegation of authority and jurisdiction, it still belongs to the sovereign power, and is incumbent upon it to maintain and control the exercise of that authority and jurisdiction, in conformity with the conditions of its delegation. Nor is there any alternative between this exercise of sovereignty and its total renunciation. But, further, it is not only inconsistent with the nature and with the obligations and duties of sovereignty that there should be self-government in a province, the same condition, in regard to British administration, results from the fundamental laws of the British Empire which extend to every colony of British settlement, and form the safeguard of British subjects, as well at the antipodes, as in the streets of London. Every colonial Constitution is framed in subordination to this fundamental principle of inalienable sovereignty. The power of making laws is defined and limited in conformity with it. In most colonial Constitutions there is an express proviso that the laws made by colonial Assemblies, which are created subject to their provisions, shall not be repugnant to the law of England. But in cases where no such proviso exists, the Courts of superior jurisdiction will hold invalid, as being ultra vires of a subordinate Legislature, any enactments which conflict with fundamental law. Then, again, with regard to administrative authority, it will be found, on an examination of the commissions and instructions of our colonial governors, that the same principles are maintained throughout those documents. No jurisdiction is acknowledged which does not proceed from the Crown; and not only are the powers to be delegated by the Crown defined by Act of Parliament, but in most cases the very form of delegation is specified; and thus that ultimate and absolute sovereignty, which by the British Constitution resides in the three estates of Parliament, is made to pervade every department of government in the colonies, as well as in the

WITH THE RIGHTS OF SOVEREIGNTY AND LAW.

mother country, and in matters of administration as well as in matters of legislation. These are not mere matters of speculation, but statements of facts which are incontrovertible, and which it would be easy to prove by reference to the highest authorities if time would allow. It is hoped that the present exposition of them cannot be considered as otherwise than well-timed, when it is remembered how entirely they were overlooked or ignored in the late debates on New Zealand, even by members of Parliament who had themselves been Cabinet Ministers. It was in that debate almost universally assumed that there existed in New Zealand a "local Government," responsible – not to the sovereign power – but to the local Legislature. It was made a matter of grievous complaint that the power of this so-called local Government extended even to the control of the national forces. Nor is this so much to be wondered at, when the language used in some public despatches is considered. In one it is stated that what is called responsible government is "unequivocally established" 9 in those colonies which have adopted it. In another the following words are used: – "That it will be impossible for Her Majesty's Government to authorise the Governor of New Zealand to employ Her Majesty's troops in suppressing native disturbances unless he shall have been thoroughly conversant with, and personally consenting to every measure of the local Government which in its operation may have unfortunately led to the necessity of so employing them;" 10 thus promulgating the strange doctrine that the peaceable subjects of the Queen are not entitled to protection if they should be brought into danger through no fault of their own, but by the usurpation of illegal power on the part of subordinate functionaries, whose duty and oath of office require them to be obedient to the Queen's Governor, and not to usurp authority over, or independently, of him.

The more this subject is investigated the more clearly it will appear that no such local Government can have any legal existence; that the men who call themselves "responsible Ministers" have no authority whatever, but what they derive from the Governor, and for the exercise of which they are accountable to him, – an authority which, whatever it may be, he has at any time full power to revoke and annul. It will also appear that, as the Governor cannot lawfully delegate to his subordinate functionaries the trust vested in him by the

THE OLD FORM OF COLONIAL

Queen's Commission, the assumption of any such power as is implied in the existence of a local Government responsible to the local Assembly, is not only an usurpation on the part of those who assume it, but a dereliction of duty on the part of the Governor who permits it. 11

The evidences which have been adduced seem more than sufficient to prove that, in the opinions of our leading statesmen of both parties, the change which has been introduced into the administration of most of the British colonies under the name of "responsible government" is inconsistent with those rights and obligations which are inseparable from the supreme government of the empire; and that the changes in the colonial Constitutions which sprung up while the Australian settlements were in a state of transition from convict establishments to free colonies, were made against the judgment of those who recommended them, and in disregard of the experience of two centuries, which had proved the efficiency of the old model of colonial government; but in deference to the supposed wishes of the colonists, as expressed by a majority of those who were at the time placed in the situation of legislators, but who, as such, had certainly no authority to decide for their fellow colonists in a question which involved their right to be governed by the free customs of their forefathers.

Regarding the subject from a moral point of view, the first question which necessarily arises is the question how far the principle of what is called "responsible government" is reconcilable with the duty of the Governor as conveyed in his commission and instructions, and with the oath he has taken "for the due execution of his office and trust:" how far, in point of fact, it is a transfer of his allegiance from the Crown to the Assembly, and the Ministry they have selected for him.

That the government administered under such a system is an elective democracy, under the form and sanction of a mixed government, is sufficiently evident. But it is a democracy infinitely more democratic than that of the United States of America; inasmuch as the Ministers appointed by the President are responsible to him, and not to the Congress, unless through impeachment by the Senate. Is it not, then, a perilous and false position for a Governor to be placed in, in which he is expected to serve two masters? to be bound by his duty to discharge the functions of a Governor, and to consent to make that duty yield

ADMINISTRATION TRULY RESPONSIBLE.

to the wishes of the majority of an Assembly? Is it less perilous for the men in subordinate offices? Will they not find it difficult to persuade themselves that they are not also in a false position? Is it less destructive to public morality that the vote of a majority is substituted for the rule of duty, and that everything comes to be looked upon as allowable which the vote of a majority will sanction, however irreconcileable with the honour of the Crown, or with the public faith?

Before proceeding to trace the evils which have resulted from yielding to the pressure of colonial politicians instead of maintaining the integrity of the empire and the supremacy of the law, it seems desirable, in order to the more full understanding of the change introduced into the administration of colonial affairs by the adoption of what is called "responsible government," to explain at greater length the system of administration which is in accordance with ancient practice, having existed in some of the transatlantic colonies upwards of 200 years. There was, first, a Governor holding a commission from the Crown to administer the government in conformity with instructions under the Queen's sign manual, or as otherwise provided for by the Charter or Constitution of the colony. Secondly, a staff of civil functionaries to assist him in the administration, who were also appointed by the Crown, and held office quamdiu se bene gesserent. These functionaries were also members of an Executive Council, which was constituted to advise the Governor in all matters of importance; leaving him, however, authority to act without their advice in cases of emergency, or even in opposition to their advice, if he should judge it right so to do, but requiring, in either case, that full explanations of his motives for so acting should be entered on the minutes of the Council. These minutes were periodically, or from time to time, transmitted to the Secretary of State; and each member of the Council, when he dissented from any of the Governor's proceedings, was entitled to have the reasons for his dissent entered upon them. The Governor had power to suspend, but not to remove from office, any member of his Government until the decision of the home rovernment should be declared; and the judgment of the Secretary of State was not pronounced without reference to the records of the Council containing the evidence and the deliberations of the Council upon the circumstances which led to the suspension. It would seem difficult to contrive a plan better fitted to make each functionary of the Executive Government responsible, in the

EFFICIENCY OF THE ANCIENT SYSTEM

first instance, to the Governor for his conduct as an administrative officer, and in the second instance to the Secretary of State for the advice he might tender to the Governor as a member of the Executive Council; or to make the Governor himself responsible for his own acts, whether undertaken with the concurrence of his Council, or against their advice. The Ministerial tenure of office was not contingent upon the will of the Governor, on the one hand, or upon the votes of the Assembly on the other hand; but upon the opinion which the Secretary of State might come to in regard to the integrity with which the specific duties of his office had been performed. In his capacity of Executive Councillor the Minister was bound to give such advice as his conscience dictated; but in his Ministerial capacity he was bound to obey the directions of the Governor, whatever might be his own judgment on the matter. There was thus every provision to encourage him in the faithful discharge of duty, by insuring him against the loss of office through adherence to duty; and the Governor and his Executive Council were thus one body, acting on the part of the Sovereign, each being individually responsible for his actions and his counsels to the highest authority in the State; but all united in performing their executive duties in obedience to one head.

The powers delegated to the Governor by the Queen's commission and instructions were founded upon an Act of Parliament, or upon a charter embodying the provisions of an Act of Parliament, which constituted him a co-ordinate branch of the Legislature with the Legislative Council and the House of Assembly.

It was the duty of the Governors of colonies from time to time to report to the Secretary of State the names of such persons as, from their experience and education, joined to the position which the independence of their circumstances gave them in the colonial community, might be considered most fit to become members of the Legislative Council; and from these names the members were selected and appointed by the Governor, subject to the approval of the Crown. The number of the Council varied in proportion to the number of the colonists. The members appointed held their office for life, subject to their title to resign their seats, or to removal for non-attendance during two successive sessions, or for conviction of treason or felony, or for bankruptcy or insolvency.

The House of Assembly was also proportioned to the number of colonists. The members were elected by colonists who pos-

OF COLONIAL ADMINISTRATION.

sessed the franchise from holding certain property, the value of which varied in different colonies. The term of their election was fixed by the Constitution Act, and they were at all times subject to a dissolution by the Governor. The President of the Council was appointed by the Queen. The Speaker of the House of Assembly was elected by the members.

The three branches of the Iegislature constituting the General Assembly were "empowered to make laws for the peace, order, and good government of the colony, provided that no such laws be repugnant to the law of England," – a provision inserted (though not in all colonial Constitutions) ex abundanti cautela – for such laws were ipso facto void; no subordinate Legislature having power to make laws contrary to the laws of the realm." The statutes of the realm (quae edicta et statuta sunt) are the declared will of the supreme power of the State, which, unless they are repugnant to the laws of God, all subjects are bound to obey. Created by an exercise of the highest authority which the Constitution of this country acknowledges, they cannot be dispensed with, altered, amended, suspended, or repealed, but by the same authority of Parliament by which they were made. For it is a maxim of the law that it is conveniens naturali equitati unumquodque dissolvi eo ligamine quo ligatum est." 12

Such Constitutions were framed on the true model of the British Constitution. It has long been accepted as a constitutional principle that there can be no taxation without representation. The colonies not being represented in the Parliament of the empire, the right of taxation by that Parliament was relinquished, and power given to the representatives of the colonists to levy duties and taxes to provide for their local necessities. But while no colonist could be subjected to taxation without the consent of his representatives, the representatives were restricted from appropriating money to any purpose unless it should first be recommended to them by the Governor to make provision for that purpose; and every appropriation required the assent of the Legislative Council, as well as of the Governor.

The wisdom and foresight of the Supreme Legislature could go no further in providing for, and securing to, each colonist the same privileges which belonged to his countrymen at home. What more was wanted but that the law should be maintained, and that the administration should be conducted with integrity. No colonial Legislature could legally deprive a

PROVISO OF REPUGNANCY

British subject of those safeguards for life, liberty, and property, which are secured to him by the fundamental laws of the empire. The laws of England were in force in the colony from the date of its foundation. But statutes of the Imperial Parliament enacted subsequent to that date had no force in the colony, unless specifically applying to it, or adopted by the local Legislature.

There was thus a representative of the Crown to whom was delegated sufficient executive powers, if independently exercised, to ensure to the colonial subjects of the Crown the inestimable benefits to be derived from a mixed system of government, which recognises in the Crown the fountain of justice, and the embodiment of the public faith, as well as the chief magistrate of the empire, strengthened and controlled by the conservative influence of the Upper House of Legislature, and by the command of the public purse in the representatives of the people: an ideal of government capable of a more perfect realisation in a colony than even in the mother country: inasmuch as an appeal to the Queen's Ministers in England can always settle irreconcilable differences between the executive and the legislative branches of the Government without any sacrifice of principle on either side; an advantage of inestimable value.

It has indeed been alleged, in justification of the illegal statutes of Colonial Assemblies, and of the Colonial Office in allowing them, that the "repugnancy" only relates to questions of what is called public policy, such as are subversive of religion or morality; to polygamy, for instance, and the like. It has also been said, on the authority of the words of the statute of William IV., c. 59, that the application of the words is confined to the repugnancy to any statute or law quoted or referred to in the respective Constitution Acts of the colonies. And this would appear to be the view accepted by some writers on colonial law. But a reference to that statute will show that it has no general application, or reference to the principles of law, but is altogether a law of administration, relating to local matters of trade, and not having any general application to colonies, but being confined to a specific colony or group of colonies.

The provision of repugnancy means a repugnancy to the common law of England, and to the statute law as it existed at the foundation of the colony, so far as the latter is applicable to the circumstances of the colony; and being the express words of an Imperial statute, it can only be rendered inoperative by the express words of another Imperial statute, and not by an inferential interpretation drawn from what Colonial Assemblies

ESSENTIAL TO THE INTEGRITY OF THE EMPIRE.

may have done, or from what the authorities in the Colonial Office may have left undone.

Indeed, from the necessary relations of Sovereign and subject, and the reciprocal rights and duties which How from those relations, it would appear that where no proviso of repugnancy is introduced into the Constitution Acts and charters of British colonies, such a proviso would be necessarily inferred. For as the law of gavel-kind is only existent in certain parts of England, and the ecclesiastical laws of England do not extend to all parts of the United Kingdom, so those laws and a multitude of others affecting the administration of the revenues and of institutions which do not exist in the colonies, are not applicable to, and not in force in the colonies. But to maintain that the common law of England, and such statutes as relate to the principles of law rather than to its administration, to the security of life, liberty, and property, are not in force in the colony, would lead to a dissolution of the empire. But there are statutes also which are fatal to such an interpretation; proving that the Supreme Legislature had a definite meaning in the introduction of this proviso, which is no new proviso, but was introduced into almost all the early charters and laws giving legislatorial powers to colonial Assemblies from the first beginnings of British colonisation; for instance, the statute of the 1st Will. IV., c. 20, which is a most instructive instance. For as the law of England respects the customs of gavel-kind in those parts of England where they are in existence, so this statute was passed to enable the King to respect the customs of the French inhabitants of Lower Canada by giving his assent to laws relative to the descent and tenure of lands in that province, "though such laws may be repugnant to the law of England." Another British statute, that of the 6th Vict., c. 22, was enacted to remove doubts as to the validity of laws made by colonial statutes admitting the evidence of barbarous persons who could not be sworn. The statute which was enacted to indemnify Lord Durham and his Council for an ordinance "which could not be justified by law" is another instance.

But the rash assertions and false assumptions of the report which bears the name of Lord Durham carried more influence with the Colonial Office than the lessons of history and the results of experience. "It is difficult," says that report, "to understand how any English statesman could have imagined that representative and irresponsible institutions could be successfully combined. There seems indeed to be an idea that the character of representative institutions ought to be thus modi-

DELUSIVE REPRESENTATIONS

fled in colonies; that it is an incident of colonial dependence that the officers of Government should be nominated by the Crown, without any reference to the wishes of the community whose interests are entrusted to their keeping. It has never been very clearly explained what are the Imperial interests which require this complete nullification of representative government. But if there be such a necessity, it is quite clear that a representative government in a colony must be a mockery and a source of confusion; for those who support this system have never yet been able to devise or to exhibit in the practical working of colonial government any means for making so complete an abrogation of political influence palatable to the representative body. It is not difficult to apply the case to our own country. Let it be imagined that at a general election the Opposition were to return 500 out of 658 members of the House of Commons. It appears, therefore, that the opposition of the Assembly to the Government was the unavoidable result of a system which stinted the popular branch of the Legislature of the necessary privileges of a representative body, and produced thereby a long series of attempts on the part of that body to acquire control over the administration."

In whatever cloud of words the meaning of these sentences and of others of a similar character are concealed, their true meaning is this: that the subordinate functionaries of the Government should act under the direction of the majority of the Assembly. That is ("the best of the French Canadians taking very little part in the public affairs of the community)," under the "French lawyers, doctors, notaries, surveyors, small traders, tavern-keepers, and mechanics," who form the great majority of the House of Assembly, notwithstanding that Lord Durham's report tells us that the "ultimate aim of that majority is the maintenance of a Canadian (or French) nationality against the progressive intrusion of the English race." There can be no doubt of what Imperial duties, if not "Imperial interests," required in such a case – namely, to protect the Queen's subjects of the English race, as well as "the best of the French Canadians," from the despotism of a few of their countrymen, by preserving to all classes the privileges of British subjects to be governed by the free institutions which are their birth-right. This "responsible government" is, however, a fait accompli not only by the French Canadians, but in all other colonies where the revenues and the public lands were a temptation to clever men to make a trade of politics, and to obtain the patronage of office, and the power

OF LORD DURHAM'S REPORT.

of distributing the public money amongst their connexions and dependents, in the shape of official salaries, or contracts for public works.

"Words," says Archbishop Trench, "exercising so great an influence as they do, resuming the past, moulding the future, how very important it needs must be that, in naming any significant fact or tendency in the world's history, we should give it the right name; since it is a corrupting of the very springs and sources of knowledge when we bind up not a truth but an error in the very designations we employ. It is impossible to measure the extent or depth of the impression which words of this kind, by the frequency of their repetition, may exert."

There could be no better illustration of the soundness of Archbishop Trench's philosophy than the use to which the words "responsible government," and the other delusive designations used in Lord Durham's report, have been applied, and the consequences which have resulted, and are likely to result, from this application.

To render so excellent a system of colonial administration as was founded upon the model of the British Constitution, and had proved its efficiency, superseding every other "scheme of colonial polity" during two centuries, "palatable to the representative body," whose aim was to monopolise the powers of government, would be hopeless. But to assume that the great body of the colonists, who have no other interest in the government than to see it well administered, would be dissatisfied with it, would be most unwarrantable. It is long since modern colonists had anything to complain of on the part of the mother country. Their trade is as free as that of their fellow-subjects at home, and the colonies have long since ceased to be a field for Parliamentary or family patronage. Why should it then be supposed, that because the principles or prejudices of the old American colonists drove them to rebellion in consequence of restraints upon their trade which would now be deemed intolerable, and of an interference with their internal administration such as no one now attempts to justify, that modern colonists should be dissatisfied with a system of government which is so generally admitted to be the best the world has ever seen, combining the stability of monarchical institutions with the greatest freedom in each individual which is consistent with a like freedom in his neighbours. There are no grounds for such an assumption. But the colonists as well as the people of England have been for many years the dupes

MISREPRESENTATION OF THE

of the sophistry which Mr. Gibbon Wakefield introduced into Lord Durham's report, and followed up by incessant repetition in the public press in every variety of form which ingenuity could suggest, till "the extent and depth of the impression" which words of such ambiguity or false suggestion as "responsible government," "self-government," "Parliamentary government," and the like have, by the "frequency of their repetition," produced upon the public mind is such, that argument seems almost wasted in the attempt to demonstrate the falsehood of the impressions they are calculated to convey.

One of the most effectual weapons which democracy has employed against a system of mixed government in the colonies is the disparagement of the Legislative Council, as having no such prestige as the House of Peers, and as wanting in all the attributes which give to that branch of the British Legislature its conservative character, and its hold upon the affections of the country. But the truth is, that if honestly selected, the moral influence of such a Council upon the colonial community would not be less than that of the Upper House of Parliament upon the people of England. It was, indeed, truly said in the debate on the New Zealand Bill in 1852, that "the effect of nominating legislative councillors by the executive or party (i. e. responsible) Government, was to lower the respect for them, because they were appointed for party purposes." But there was never yet a British community sufficiently numerous to allow of any municipal institutions being established amongst them which did not contain a sufficient number of "select men" to command the respect of their neighbours, and to justify their being placed in the position of a Conservative branch of the Legislature. The average education and intelligence of colonists is of a higher standard than that of their countrymen at home, and under every disadvantage – and no greater disadvantage could be imagined than that of the so-called "responsible government" – they have been the most effectual means of promoting the public welfare, by preventing the rights of their fellow-colonists from being sacrificed to the schemes of democracy.

It is true, indeed, that the majority of colonists, with some few individual exceptions, are too much engrossed by their private affairs to have leisure to give attention to constitutional questions, even if their previous education and avocations had been of such a character as to make them competent judges of such questions. They are, therefore, equally liable with their

INTERESTS AND WISHES OF COLONISTS.

fellow-subjects at home to be led astray by the cant words and impudent assertions of men who make politics a trade; perhaps more so. But, in point of fact, no steps have ever been taken to ascertain the real wishes of the colonists, It is a libel upon a British community to say that they do not wish to be well and wisely governed, or that they would oppose, or not joyfully accept, such an alteration in their local institutions, or in the administration of them, as would relieve them from being, under pretence of self-government, reduced to the condition of un gens taillable et corveeable, to serve the ambition of a clique of colonial politicians.

But the great difficulty which is alleged is the impossibility of carrying on the public business if the House of Assembly should refuse to vote the supplies. The conduct of the French Canadians, who were eight to one of British origin in the Assembly of Lower Canada, cannot fairly be cited as an example likely to be followed in a purely British community. But even the stoppage of the supplies is an event not much to be feared, when the provision of a Civil List reserves for Her Majesty a sufficient portion of the revenue to maintain the administration of justice, and of the executive government. Where the result of such a step would not be the opening of the doors of office to the leaders of the Opposition, there would be little cause to apprehend it. But when it might occur, it would, in stopping the public works and starving the public servants, affect the members of the House and their constituents more than the Governor and his Council, who might patiently wait the decision of the Secretary of State on the points of difference which led to the interruption of the public service; and the great body of the colonists would fearlessly rally round a Governor whose moral character was unassailable, and whose conduct gave evidence that he was guided by a stern sense of duty alone.

The truth is that until the system called responsible government made colonial politics a trade, and converted the sacred trust of a legislator into a means of converting the public money to the uses of the individuals who held that trust, the management of a colony was an exceedingly simple affair.

In the grandiloquent effusions of our colonial statesmen one meets with the assumption that the policy of a colony must be something of a very difficult and recondite character. To hear some of our colonial orators it might be imagined that they had the affairs, not of a colony, but of an empire – not, perhaps, of

SIMPLICITY OF COLONIAL GOVERNMENT.

an empire, but of a whole continent containing many empires, on their hands.

Their proceedings would suggest the supposition that the existence of human beings in civilised community had no other object than to afford a field for the display of all the talent with which the community might be gifted; and that it was the highest privilege of the community to provide a fund not only for their maintenance as politicians, but for the absorption into their body of politicians of every opposing element who might threaten their existence. But, in sober truth, if the words "duty and right" were restored to the vocabulary of our colonial statesmen and made the rule of their conduct; if, instead of being encouraged in the great swelling words of vanity with which they are wont to magnify their office as "the founders and progenitors of a great, powerful, and prosperous State," our colonial statesmen were kept by superior authority to their proper functions, the community would be saved from the ruinous consequences of an overvaulting ambition, and its real business would be found to be both simple and inexpensive; such as would permit the ablest men in the colony to take a part in its legislation, without sacrificing their private interests; for since the introduction of responsible government, it is true in other colonies, as well as in Lower Canada, that the best of the colonists have retired in disgust and despair from taking any part in the public affairs of the community, which are consequently left "in the hands of lawyers, doctors, notaries, surveyors, small traders, tavern-keepers, and mechanics," together with a large proportion of adventurers, who, having failed in all honest business, have made colonial politics a trade.

In regard to legislation, the universally-admitted principle of law being that British subjects carry with them to British colonial settlements all the rights and privileges which they derive from the fundamental laws of their country, the limit of the subordinate powers of legislation must be found in the application of that principle to the altered situation of the colonists. Passing from the one extreme, which in the instance of the Australian colonies made a despotic Government in the early days of those colonies a matter of necessity, to the other extreme, of allowing the democratic element of the Constitution a degree of power in the colonies which it has never attained in the mother country, the British Government and Parliament have lost sight of the consideration that the real danger of oppression to the Queen's

IF CONDUCTED WITH INTEGRITY.

subjects in the colonies existed in the abuse of delegated powers, rather than in the interference of the sovereign authority. It is true that the increase of wealth and the complications of modern society have created a different state of affairs to what existed in the earliest experience of British colonists, when the burden of government was laid upon the persons most competent to bear it, and its functions assumed as a duty; when Governor Bradford, "after having been chosen Governor of Massuchusetts for nine successive years, notwithstanding his remonstrance that if this office were an honour, it should be shared by his fellow-citizens, and if it were a burden it should not always be imposed upon him, was excused the tenth year by reason of his importunity."

It is an effect of the writings of such men as Mr. Gibbon Wakefield that a British colony has come to be regarded rather in the light of a theatre for the display of political talent than a settlement of British subjects, who, if their affairs were administered with integrity, would need little from the Government except the protection of its laws.

If confined to their proper functions, the colonial Legislature would have little to do beyond providing means to make roads and bridges as they might be required by the extension of the settlement, to construct wharves and other conveniences for the promotion of commerce, and buildings for the administration of justice, and other social necessities, such as hospitals and lunatic asylums. The advantage of such undertakings is so generally understood, that little difficulty would be experienced; each individual of the community would recognise their necessity, and cheerfully submit to the burdens that necessity imposed.

The chief practical distinction which it is important to keep in view in the administration of the affairs of colonies, is that between the furtherance of the public and private wealth of the colonial community, by public works and undertakings for which it is necessary to vote public money, and the maintenance of law and justice, by those acts of government which involve the public faith and affect private rights. In the latter case the Governor ought never to forget that, by the delegation to him of the Queen's authority, he has become the embodiment of the public faith and the guardian of the national honour, and that he is bound to adhere to his own views of the obligations which are thus imposed upon him, unless and until his judgment shall be overruled by the Queen's Secretary of State. But in the case of the former, his judgment may be more legitimately swayed by that of a majority of the Assembly, through whose

DUTY OF THE GOVERNOR

agency alone taxes and rates can be levied and expended, and who are in this respect understood to represent the interests of those who elected them. But even in matters of this kind his vigilance will be constantly required to prevent any portion of the community or any individual from suffering injustice at the hands of a self-interested and tyrant majority, which will be always prone to lay upon the more distant settlers, who are most weakly represented, the heavier burdens; and to withhold from their districts a due share of the expenditure upon public works.

In all such cases, where an irreconcilable difference exists between a Governor and a majority of the Assembly, any sacrifice of principle or self-respect becomes unnecessary, because both parties are bound by the decision of a superior authority; a colonial administration thus affording free scope for the checks and balances of a mixed government, subject to the final control of an authority as impartial as can be supposed to exist. It is a necessary consequence of a competition of powers that one must give way to another, that there will not only be what Lord Brougham calls "a system of give and take" between the Crown and its Ministers when swayed by a majority or expected majority in Parliament; but, on one side or the other, there will occasionally be some sacrifice of principle to prevent a dead-lock in the functions of government; whereas in a colony there need be no room for this sacrifice of principle, or danger of good government being sacrificed to the predominance of one element of power. But in order to this, it is necessary to discard the notion that the subordinate Government of a colony has any right to act as if a colony were a nation, entitled to absolute power and independent action, and not a detached portion of an empire, the Government of which cannot evade the responsibility of protecting its inhabitants either from outward aggression, or from the oppressions or abuses of its local functionaries; or that the colonial subjects of the Crown can owe allegiance to local authorities, or be deprived of the protection to which, in right of their allegiance to the Crown, they are entitled from it.

A system of colonial administration which allows executive functions to be overruled by the vote of a majority has shown itself to be inconsistent with a government according to law and justice, as substituting the crude opinions, not to say the selfish objects, of the majority for the principles of government which law and experience have established. It is inconsistent with one of the most essential requirements of good government that the functions of the legislative department of the

AS A COORDINATE BRANCH OF THE LEGISLATURE.

State should be kept distinct from those of the executive department. It is only consistent with a state of barbarism from which the European nations have emerged for several centuries.

The first essential requisite of government is stability; and it is the highest triumph of civilisation to have secured, as in Great Britain, the co-existence of the stability of the Throne with the liberty of the people. These advantages belong of right to the inhabitants of every British colony, as well as to those of the mother country; but they can only be secured by an adherence to the principles of British government.

Why should a community of British freemen relinquish the first and greatest advantage of that civilisation which the wisdom and patriotism of their ancestors had bequeathed to them, in order to throw themselves into the hands of a faction, which, in the very fact of its existence, ignores the sense of duty and loyalty, and which, as experience has already invariably shown, can only maintain itself by corruption; paralysing the proper functions of government, and substituting for them a perpetual struggle for oflce, which makes a due attention to the real business of the community impossible?

In the mother country there exists an hereditary class whose circumstances constitute to the community one of the greatest securities for good government, independently of the influence of party or of faction – a class of persons elevated in rank – in possession of wealth to satisfy every desire and imagination – having only one object of ambition left, that of obtaining distinction in the management of public affairs; a class of persons trained from their earliest years in the science of politics – knowing all knowledge, enlightened by the results of all experience – with the prestige of rank and of a historic name – inaccessible to the temptations which the emoluments of office hold out to the needy. To such a class, which at once adds to the stability of the Throne, and protects the liberties of the people. Divine Providence would appear to have specially assigned the functions of government, and amongst their ranks are generally found a large proportion of men distinguished for talent, possibly inherited from their progenitors, who were the first to achieve greatness, as well as a disposition "to scorn delights and live laborious days." But in the colonies such a class is altogether wanting. It may be affirmed almost absolutely, that there are no men in the colonies to whom the emoluments of office would be indifferent, and to whom the colonists could look up, as a governing class, with any degree of assurance, that their object

CHARACTER OF LEGISLATORS UNDER

and aim in acquiring office would be an exclusive devotion to the public good. It is enough to say that there are men competent to the task of government if continued in office; but honourable men find it impossible to submit to the conditions by which votes are influenced, and they are forced to give way to others who have no higher objects than to make the public interests subservient to their own, and to the interests of those by whose votes they were placed and are maintained in office – men of whom, with but few exceptions, it may be said, that they assume the functions of government only to disgrace them. 13

THE SYSTEM CALLED "RESPONSIBLE GOVERNMENT."

It may be urged in answer to all this that the Supreme Government has never, in fact, relinquished the power to direct and control the conduct of the Queen's Governor, and that they leave "the success or failure of responsible government to the tact and talent of the Queen's representative."

The Queen's commission and instructions, under the Royal signet and sign manual, are also, in no sense, reconcilable, as

INTRODUCTION OF THE SYSTEM CALLED

has already been observed, with the delegation of the Governor's powers. 14 Let us take the case of New Zealand. In the despatches of the Secretary of State, authorising the introduction of the system called responsible government, on provision being made for the retiring functionaries, there is no revocation of the former instructions, nor any passage vhich could be construed as giving authority to the Governor to abdicate his functions. But, on the receipt of this despatch, the Governor sent a message to the House of Representatives that he would be ready to give his confidence to such members of the House as they were willing to support as his executive functionaries, and the members indicated were, thereupon, appointed to be members of the Executive, and to the offices vacated by the previous officers. It is probable enough that the Secretary of State might, at the time, consider that this was nothing more than the relinquishment of the patronage of office, and that the new functionaries would not be the less "obedient, aiding, and assisting" to the Governor, as required by the conditions of their accepting office, because of their being chosen at the instance of the House of Representatives. But it very soon appeared that the change meant nothing less than an abdication by the Queen's Governor of the functions of his office. This is a point which it is easy o determine, as well by the public acts of the local Government as by the despatches of the Secretary of State. Governor Browne expressed his conception of what "responsible government" meant in a "memorandum by which the relations of the Governor towards his Ministers was established:' –

"1st. In all matters under the control of the Assembly the Governor should be guided by the advice of gentlemen responsible to that body, whether it is or is not in accordance with his own opinion on the subject in question."

From these he excepts "matters affecting the Queen's prerogative and Imperial interests generally," including "all dealings with the native tribes." On this last reservation a late Prime Minister of New Zealand observed that: – "In assenting to the introduction of that practice into the colony, the Home Government attached but one condition – that we should pension the retiring officers of the Executive Council. But Governor Browne added another condition, unauthorised by the Home Government – that we should surrender to him the entire administration of all affairs relating to the natives. It was robbing us exactly of half our Constitu-

"RESPONSIBLE GOVERNMENT" INTO NEW ZEALAND.

tion." 15 This is a sample of the ideas pat forth by the men whom the Constitution, and- the law, look upon only in the light of subordinate functionaries, bound to obey the Governor's directions, and "to be obedient, aiding, and assisting to him."

Thenceforward the Governor gradually sank to be the mere organ of the men who, for the time, could obtain a majority in the Assembly. A slight, but ineffectual, struggle was made in a case or two where the public faith was in question, and the management of native affairs was, for a time, kept apart from the other business of the Government. But gradually this became also more in name than in reality. The increasing necessity for patronage to maintain supporters, and buy off opponents, at length removed the old and experienced native functionaries, and the new were not long of precipitating a war with the natives. The next Governor, Sir George Grey, from whom such great things were expected, at once, and entirely, coalesced with the existing state of things, and went openly beyond Governor Browne, inasmuch as that, whereas Governor Browne ostensibly maintained his independent action in native affairs, Sir G. Grey yielded these also to the direction of the Ministry of the Assembly. In a despatch to the Duke of Newcastle, dated 30th November, 1861, he writes as follows: –

"1. In my despatch. No. 3, of 9th October last, I transmitted the copy of a memorandum on the machinery of government for native purposes, which had been forwarded to me by the New Zealand Ministers.

"2. The substance of the question which has been raised upon this subject may, I think, be stated to be this: that, whilst the colonial Ministers are virtually responsible for all other matters of government in this colony, the Governor has hitherto retained the management of native affairs in his own hands.

"3. The Ministers, in their memorandum, state this in the following language: – 'The result is that while, on all other subjects, the responsible Ministers are the sole advisers of the Governor, and exercise the entire executive functions of the Government, on native affairs the Governor has, in addition to his Ministers, another adviser – his native secretary – who is not a responsible Minister, nor under the control of responsible Ministers, but who exercises (subject only to instructions from the Governor himself) all the executive functions of Government in relation to native affairs.'

"4. Under this system there would be two Governments in

GOVERNOR SIR GEORGE GREY

the colony, which not only would not always aid one another, but which would sometimes act at cross purposes with each other.

"5. At the present crisis, it is quite impossible that Her Majesty's Government could be advantageously carried on under such a system. I therefore immediately arranged to consult my responsible Ministers, in relation to native affairs, in the same manner as upon all other subjects, and, in like manner, to act, through them, in relation to all native matters. If any serious difference takes place between us upon these subjects, I must, as in other cases, resort to other advisers, and appeal, in fact, to the General Assembly........

"9. Another disadvantage of the system of making the Governor chiefly responsible for native affairs is, that it will be thought that the wars which may arise under it have sprung, whether rightly or wrongly, from the acts of the representative of the British Government, over whose proceedings the Colonial Legislature had but very imperfect control, so that it would seem difficult to call upon that body to find means of defraying the cost of a war, for the origin, continuance, or conduct of which 'it was only in an indirect manner responsible.'"

Amidst the ambiguities which characterise the language of this, as well as of all other despatches relating to what is called "responsible government," it is to be gathered from the sentences above quoted: –

First, that in the administration of native affairs the Governor had previously, ostensibly at least, acted upon his commission and instructions – that is, that through another adviser (his native secretary) he exercised "all the executive functions of government in native affairs;" this adviser, however, being "in addition to his Ministers (who are bound by their oaths, as members of the Executive Council, to advise the Government when called upon). Secondly; that Sir George Grey considered that this was one Government, and that the second Government was that of the responsible Ministry, which, together, constituted "two Governments in the colony" – that is to say, the Government of the Queen in the one case, and the Government of the Assembly in the other case. The language of Sir George Grey, in his minutes addressed to his Ministers in accordance with these views, is not that of command, nor is it a requisition for advice. It is couched in such terms as these – "I think it might be found expedient;" "I would, therefore, earnestly recommend;" "My responsible advisers have not yet given to me the details, military or financial, of

ON "RESPONSIBLE GOVERNMENT."

the plans by which they intend to give effect to that policy," &c.

In reply to the above despatch, the Duke of Newcastle writes, under date the 26th May, 1862: – "I am ready to sanction the important step you have taken in placing the management of the natives under the control of the Assembly. I do so partly in reliance on your own capacity to perceive and your desire to do what is best for those in whose welfare I know you are so much interested. But I do it also because I cannot disguise from myself that the endeavour to keep the management of the natives under the control of the Home Government has failed. It can only be mischievous to retain a shadow of responsibility when the beneficial exercise of power has become impossible." And again, in a despatch to Governor Grey, dated the 5th June, 1861, the Duke of Newcastle expresses himself as follows: – "Whatever may be the future arrangements as to the purchase of native lands, or administration of native affairs, or whatever may be the amount of force maintained in the colony, or whatever the source from which its cost shall be defrayed, it will be impossible for Her Majesty's Government to authorise the Governor of New Zealand to employ Her Majesty's troops in suppressing native disturbances, unless he shall have been thoroughly conversant with, and personally consenting to, every measure of the local Government, which in its operation may have unfortunately led to the necessity of employing them." Is it possible to come to any other conclusion from this passage than that the Secretary of State admits the existence in the colony of a "local government," which has the power to exercise executive functions, apart from the Governor, without his knowledge and concurrence, and of such a nature as may lead to civil war. But what is to be thought of the conclusion: – that, in such an event, the Queen's subjects, amongst whom such an usurpation and abuse of power is permitted, are to be deprived of the protection which is due to them as members of the British Empire? These passages from the published despatches of the Governor and the Secretary of State, seem to leave no doubt of the construction which is put on the words "responsible government" by these functionaries. It may be well to add another illustration, arising out of the exercise of the first of the special powers which the Constitution Act reserves for Her Majesty: the words of the Constitution Act relating thereto, being as follows: – "Whereas it was among other things provided, that at any time during the continuance of the office of any Super-

ILLUSTRATIONS OF THE ACTION OF

intendent of a Province, it should be lawful for Her Majesty to remove him from such office, on receiving an address signed by the majority of the members of such Provincial Council, praying for such removal;" which power the Constitution Act authorised Her Majesty to delegate to the Governor, and which was delegated accordingly.

In the session of the Provincial Council of Auckland of 1862, a petition signed by a majority of the Council was presented to the Governor, praying for the removal of the Superintendent, to which the following replies were made: –

Government House, Auckland, April 12, 1862.
To Hugh Carleton, Esq., M. P. C.

Sir, – In reply to your note of the 25th ult., forwarding a petition from members of the Provincial Council of Auckland, praying for the removal of his honour John Williamson, Esq., from the office of Superintendent of the Province, I an directed by his Excellency the Governor to inform you that, after a careful consideration of the subject, he deemed it proper to forward it for the consideration of his responsible advisers, – I have, &c,

(Signed) E. L, LAYARD, Private Secretary.

Colonial Secretary's Office, April 14, 1862.
To Hugh Carleton, Esq., M. P. C.

Sir, – I have the honour to inform you that the petition signed by eighteen members of the Provincial Council of Auckland, praying for the removal of the Superintendent, which was forwarded by you to his Excellency Sir George Grey, has been referred by him to his Ministers for their advice as to the course which he ought to pursue iff the matter; and I am commanded to convey to you, on behalf of yourself and the other gentlemen who signed the petition, the conclusion arrived at by his Excellency, which is, that the circumstances disclosed by the petitioners do not constitute one of those extreme cases which would alone justify bis Excellency in exercising the power vested in him by the Constitution Act. – I have, &c.,

WILLIAM FOX, Colonial Secretary,

Here is another illustration of the ambiguity which seems inseparable from the exposition of even the simplest transaction of the government under such a system. The 12th clause of the Royal instructions is as follows: – "And it is our further will and pleasure, and we do hereby command you that in the execution of the several powers and authorities granted and committed to you by our said commission and these our instructions, or by any additional instructions hereafter to be given to you by us, you do in all things consult and advise with our said Executive Council:" and by the 18th clause, "It is our plea-

"RESPONSIBLE GOVERNMENT."

sure that you do attend and preside at the meetings of our said Executive Council, unless when prevented by some necessary or reasonable cause."

These instructions are plain and precise, and the Governor is sworn to obey them. What course does the Governor pursue? His private Secretary's letter informs us, "that after a careful consideration of the subject" (extending over a period of eighteen days), "he deemed it proper to forward it for the consideration of his responsible advisers." There is no mention of the Executive Council. His responsible advisers are indeed members of that Council. But in pursuance of his instructions it was his duty to summon his Executive Council, to preside thereat, and to cause its deliberations and resolutions to be recorded in the Minutes of the Council. We were, perhaps, not entitled to be informed that this had been done. But why then state that the petition had been forwarded for the consideration of his responsible advisers? Are the proceedings directed by the instructions compatible with those actually resorted to? Or are they not rather, like the passage above quoted from the Duke of Newcastle's despatch, a recognition of a "local Government" apart from the Queen's Government, called a "responsible Ministry," accountable not to the Crown as required by law, but to a majority of the House of Representatives?

But in order to understand in its full significance the case of this petition, it is necessary to mention that it was by the defection of this superintendent, who was a member of the House of Representatives, and had two of his subordinate functionaries in the Legislature, that the previous Ministry had been ousted, and the then existing Ministry established in office by a majority of one vote; and the question naturally arises, was this a proper question on which to consult his Executive Council, or is responsible advisers, call them which they will, seeing that their very existence as such might depend upon the advice given? Or, was it not rather one of those cases provided for in the Queen's instructions "which may be of such a nature, that in your judgment, our service would sustain material prejudice by consulting our said Council thereupon;" and therefore requiring the exercise of that exclusive discretion which the instructions reserved to the Governor.

Of the meaning attached to the words "responsible government," proofs in abundance might be brought from the public correspondence relating to other colonies, as well as from that relating to New Zealand. In a despatch to the Governor of

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Victoria, dated June 26, 1863, relative to the obligation of colonies to contribute to their own military defence, the Duke of Newcastle uses the following words: –

"The force in Tasmania, where the effects of the old system of transportation are not yet worn out, will be maintained for the present at the expense of the Home Government; and in the remaining colonies of New South Wales, Victoria, South Australia, and Queensland, there are no exceptional circumstances to prevent the free application on the part of the Home Government of those principles which arise from, or are correlative to, the grant of responsible government.

"That form of government being unequivocally established, it is, I imagine, admitted on all hands that the Imperial Government has no further responsibility for maintaining the internal tranquillity of the country. Its obligations, therefore, to contribute towards the defence of colonies in full possession of internal self-government, and unaffected by any exceptional circumstances of situation or population, is limited to the contingency of war and danger of war."

Shortly after the receipt of this despatch the Governor to whom it was addressed. Sir Henry Barkly, was removed to the government of Mauritius. At a farewell dinner given to do him honour, after acknowledging the complimentary toast, he thus expresses himself: –

"I feel, however, that there is something solemn – something almost affecting – in thus being called upon to give an account of my stewardship. True, as a constitutional Governor, I can claim, as Sir James Palmer has said, little share of the praise or blame of the policy pursued by my advisers. Still, a constitutional Governor does retain a certain negative power, which may be employed either for much good or for much evil. (Hear, hear.) A popular idea, no doubt, is, that nothing can be easier or more delightful than the position of a Governor under responsible institutions – that he has merely to act on the advice tendered to him, or rather, to let others act in his name. Nevertheless, I think those who reflect will see that the first constitutional Governors in these Australian colonies have had certain difficulties to encounter and certain delicate duties to perform in the transition from one system of government to the Other. (Hear, hear.) Instructions from the Crown to these Governors remain precisely as they have done before, and if they look to the Constitution Acts for guidance, they will find them generally vague and difficult of interpretation with regard to questions affecting prerogative, and that the Constitution Act of Victoria especially, so far from throwing light on the question of responsible government, mentions it merely in a marginal note, which is no part of the enactment. And if they look to the constitutional history of the mother country for precedents, they will find many which are of no value for guidance

"RESPONSIBLE GOVERNMENT."

in colonial matters, and many that are contradictory and uncertain. He must recollect that the British Constitution is not like our own – a written document; that constitutional government at home is a matter of practice, not theory; and that most of the theories of modern writers on the subject have never been carried actually into effect, and probably never will be. True, Professor Goldwin Smith tells us that we have really had two constitutional Sovereigns in England – the first and second Georges; but he adds the somewhat unparliamentary explanation that they were fools as well as foreigners. (Laughter.) And my friend, Mr. Henry Taylor, of the Colonial Office, in the preface to one of his works, holds up Charles the Simple of France as the beau-ideal and prototype of a constitutional Sovereign, because he was so mad that he could not be held responsible for his acts, and at the same time was sane enough to feel for the sorrows of the people, and sympathise with them. (Renewed laughter.) But it seems to me – although every theory may contain a certain amount of truth – that this is carrying the doctrine to the point of absurdity, I believe it to be impossible for any one to accept the doctrine of the absolute nonentity of a constitutional Governor who really has a regard for the good of his country. My own conviction is, that a constitutional Governor, while bound to abstain carefully from anything like party politics, or from interfering in anything like matters of detail, must, in the performance of his duty, and under certain contingencies, be called upon to exercise an independent judgment, and act as he deems really best for the good of the country, (Applause.) And if you will allow me, gentlemen, at a moment when my administration is about to close – and when what I say may be looked upon as a dying declaration, and, therefore, may be taken on that account as true – to make one or two observations on the position of a constitutional Governor in this colony, I would venture to say that I think it would be better if a little more latitude were allowed to the exercise of negative power on the part of a Governor; if, for example, it were possible for him to refuse to acquiesce in a questionable appointment, without its being understood that the refusal should occasion a Ministerial crisis, or involve the whole machinery of Government in confusion, (Loud cheers.) Again, I think it would be better if a little more power of supervision over institutions intended for the moral and social welfare of the people – such as the penitentiaries, lunatic asylums, and gaols – were allowed to the Governor. (Hear, hear.) Really, very often the Governor has little or nothing to do, and there is a certain amount of danger that such institutions may be overlooked amidst the turmoil of party politics. (Hear, hear.) I will only say in conclusion, that as I accepted the Government of this colony with the firm determination to aid to the best of my ability in carrying out the experiment of responsible government which had then been established, so I have endeavoured, during my administration of the Government, to act impartially and in the spirit of the Constitution. (Great applause.) If I have been guilty, as no doubt I have, of sins of omission and commission – (no, no) – if I have erred, as, allow me to say, I know that I have, from lack of foresight or from infirmity of temper – if, in the discharge of what I conceived to be my duty, I have come into collision with those who thought they were doing theirs, I can only say, and I say it on the last occasion I shall

ILLUSTRATIONS OF THE ACTION OF

probably have of doing so, that I bear no animosity to anyone; and I earnestly trust that on quitting this country I shall leave behind me not one single private or even political enemy." – From the Melbourne Argus.

In reading such language as this it is difficult to realise the fact that the person who makes use of it, so far from requiring to be allowed a little more latitude in the exercise of negative authority, or that it "might be possible for him to refuse to acquiesce in a questionable appointment," was the only person in the colony who could legally, by himself or by his subordinates, exercise administrative authority in any shape whatever. Of his loyalty to the Sovereign who appointed him, his speech furnishes evidence of a curious character. Of his idea of the respect due to that Sovereign, in the person of her representative, the following fact furnishes curious illustration. In accordance with previous arrangement, Sir Henry Barkly attended at the Parliament House in Melbourne to prorogue the Assembly on an appointed day and hour, that hour being three o'clock; but at the moment of his arrival there was a party question in debate, and the announcement that his Excellency was in attendance was not allowed to interrupt it. Six o'clock arrived, and the debate was adjourned, to allow the members to go to dinner, the Governor all the while remaining in the waiting-room; at seven the debate was resumed, and at eleven o'clock the Governor, being still found, at the conclusion of eight hours, in waiting upon the Assembly, received notice that they were ready to receive him, and he went in and prorogued them accordingly. It would seem that a "constitutional Governor" must be insensible to personal humiliation, and that to act "constitutionally" was to show insensibility to the degradation in his person of the Sovereign whose functions he was delegated to perform. There is one point connected with the establishment of "responsible government" in probably all of the colonies which is worthy of a passing remark: viz., that among the first acts of a responsible Ministry has been an application to the Secretary of State to permit them to increase the salary of the Governor who consented to its introduction, 1000l. a year was immediately added to the salary of Governor Browne; a similar increase was made to that of Sir George Grey; Sir Henry Barkly was provided with the munificent income of 10,000l. a year, besides 5000l. a year in lieu of being provided with a house and establishment.

It is perfectly competent to any man, so far as regards his personal relations, to resume the conditions of his nonage, and to place his conduct and his affairs "under tutors and governors," binding himself by their action "whether it is, or is not

"RESPONSIBLE GOVERNMENT."

in accordance with his own opinion on the subject in question," though the world would probably look upon such conduct as something like an admission of conscious imbecility. But it is not legally competent to a British Governor to pursue such a course, in relation to the powers committed to him for the government of a colony. These powers are granted by Act of Parliament to the Queen, with authority to delegate them to the person to be specifically appointed by Her Majesty to administer them. Not only is the power of delegation specifically provided for, but the very mode in which such delegation is to be made is also specifically defined. But in the New Zealand Constitution Act there is (with the exception of the power to appoint a Lieutenant-Governor to act in one of the provinces in certain contingencies) no power of delegation committed to the Governor, nor is any such provided for in the Queen's commission or instructions. His powers are specifically vested in himself, and he alone is accountable for their exercise.

Since the above was written, the despatches relative to New Zealand laid before Parliament on the 7th February, 1865, illustrate, in a still more striking manner, the meaning attached to the words "responsible government;" and would seem to render much that has been said superfluous, did it not seem desirable to show the gradual development of the system. First, these voluminous documents show that, by the adoption of Sir James Stephen's doctrine, that it was a folly to attempt to govern colonies at the distance of half the globe; and, the consequent attempt to get rid of the trouble of doing so, by "leaving them to manage their own affairs, and settle their differences amongst themselves," the Colonial Office has entailed a tenfold amount of labour upon itself.

The bulk of the correspondence from the colony between the 7th May and 7th November, 1864, is such as to preclude its examination by any one who has other business to attend to. Secondly; it brings responsible government to a test which proves the impossibility of conducting public business by such a system. Throughout these papers the Ministry claim the right to decide, and, having decided, to advise the Governor to act in conformity with their decision. This right to advise is only another way of expressing the right to direct, and the advice becomes law to the Governor.

Sir George Grey and the Fox Ministry had agreed upon the confiscation of the Waikato country. It would even appear that the Governor, in his first views, went beyond his Ministers

DEPLORABLE RESULTS OF THE VACILLATION

in the extent to which he would carry confiscation. In page 6 of the papers of 2d March, 1865, the Colonial Treasurer reports a conversation between the Governor and himself, in which the following words occur: – "His Excellency replied that he was aware of those views, and that he did not know that there was any difference of opinion between himself and his Ministers on the subject of confiscation; 'if anything,' he added, 'he went further than they did.' The Colonial Treasurer asked in what direction. The Governor replied – 'You would give them (the rebel natives) back some of their lands, but I would not.' The Colonial Treasurer then asked what he would do, as, if the people had no land, they would be driven to despair. The Governor replied – 'No; that would not be the other tribes, in different parts of the country, would give them land enough for their wants.'" The natives of that district, as well as of Tauranga, acknowledged that the land was forfeited as the result of conquest. They were totally disheartened by the victories of Sir D. Cameron in Waikato, and by the result of the action at Tauranga, under Colonel Greer, on the 21st June, 1864.

In a letter to Bishop Pompallier, dated August 9, 1864 (page 155 of papers of 7th February, 1864), William Thompson states: – When the above prisoners (who had been sent by the Government to visit the rebel natives) came to me saying, give up Waikato,' I have fully complied with their proposal." In the report made by those prisoners, it appears that even Rewi, the chief most bent upon war, and other leading chiefs, were, at that time (11th June, 1864) "prepared to relinquish the whole of the Waikato country now taken and held by our forces." (Papers of 7th February, Pg 48.)

On the 6th of August Sir G. Grey reports that, "at a meeting, attended by all the natives in this district (of Tauranga) who have been in arms against us, with the exception of thirty-five, they made a public and absolute submission to the Queen's authority, unreservedly relinquishing the whole of their lands as forfeited." (Papers of 7th February, 1864, page 96.)

Such was the state of things when, in accordance with a desire expressed by the Secretary of State that the land should be obtained by cession instead of by confiscation, a controversy arose between the Governor and his Ministers which paralysed the action of Government when the utmost promptitude of action was a necessity. If the Government of the colony had been conducted according to the law of the Constitution Act,

ARISING FROM "RESPONSIBLE GOVERNMENT."

and the Queen's commission and instructions issued under the authority of that Act, this controversy would have occasioned no evil. The question would have been discussed in the Executive Council, and a few hours would have determined it. The Governor, if convinced that the views of his Ministry were correct, would have adopted and acted upon them. If he adhered to his own views, he would have carried them into effect. If there had been "divided councils," they would not have brought the public business to a collapse, nor would their existence have been known beyond the walls of the Executive Chamber. But under the system called responsible government the controversy is continued by "Memoranda," addressed by the Governor to his Ministers and by the Ministers to the Governor, "by means of adverse minutes (to use the words of the Secretary of State) treasuring up records against a future time, and involving great and deplorable delay in the conduct of present and pressing affairs." "I greatly regret," writes Mr. Cardwell, "that so much delay had occurred in issuing such a proclamation; and that five months after you had reported, in your despatch of 7th May, that you had thought it essentially necessary to let the natives know some terms upon which they might return to their allegiance, no sufficient steps had been taken for that purpose" (papers of 7th Feb., 1865, p. 200). At length, on the 25th of October, a proclamation was issued inviting the natives to come in, take the oath of allegiance, and agree to the cession of such territory as might be required of them. But it was too late. The natives, seeing the vacillation and indecision of the Government, allowed the time fixed by the proclamation to expire without paying any attention to it. They heard also that three regiments were to be immediately sent home, and that the remainder were speedily to follow. The invitation to cede land which they had frankly relinquished as the fruits of conquest implied a doubt of our ability to hold what we had taken, as well as a recognition of their power to withhold what they were invited to cede. The result was an entire change in their views. They considered that if the troops were able to conquer them, the Government was unable to rule them, and that, on the withdrawal of the troops, they would be able to re-possess themselves of the conquered country. They, consequently, biding their time, withdrew from further communications, stating to Mr. George Graham that they wished to live upon the most friendly terms with the Pakeha, but the Pakeha must remain upon his own land. These were the latest views expressed by William Thompson, the advocate of peace, as well

"RESPONSIBLE GOVERNMENT" INCOMPATIBLE

as by Rewi, the Napoleon of the war. The proclamation having been issued contrary to the views of the Ministry, who had considered it "to be an imperative duty to record their protest against the introduction of a new form of government, under which native affairs would be administered partly by his Excellency and partly by his advisers" (papers of 7th March, 1864, p. 103). Mr. Fox and his colleagues lost no time in sending in their resignations. On the meeting of the Assembly a new Ministry was formed, consisting exclusively of Southern politicians. These gentlemen, whose families and property were safe from Maori violence, at once removed the offices of Government from Auckland, which, by command of the Queen, had been proclaimed the capital of New Zealand twenty-five years before; and professed their intention to dispense altogether with the services of the Queen's forces, and to rely upon the local force for the subjection of the rebellious Maories and the protection of the settlers. But, inconsistently enough with this professed policy, they determined to carry the war into a new district – a measure which, in the judgment of the General, required an addition to his force of 2000 men, instead of allowing any to be withdrawn. The Governor sided with his Ministers against the General; the General resigned in disgust; and the Northern colonists are waiting with anxiety the results of a policy which, if carried out, they look upon as intending their destruction; and, with not less interest, to learn what the Secretary of State will say to the Governor agreeing to a policy so contradictory of his expressed determination not to allow the blood and treasure of England to be expended in making fresh conquests. 16

Before the accounts of this new policy of a new Ministry

WITH THE EFFICIENT ACTION OF AUTHORITY.

had reached him, Mr. Cardwell had made the following observations on the limits of responsible government: – "I have abstained throughout this controversy from entering into any abstract arguments upon the limits or responsible government, for which a time like the present is eminently unfit. But it is impossible for me to abstain from observing that if the doctrines of your Ministers, as now broadly propounded, are to be admitted. New Zealand must be regarded, not only as owning no dependence on the mother country and as having that inherent right, which independent countries exercise, of conducting their own affairs according to their own judgment, but as having this right coupled with the singular privilege of enjoying the services of a Governor, a General, and an Army furnished to them by this country. On the other hand, the mother country would simply be a tributary nation, affording at its own cost the means of carrying into effect the policy of the Colonial Ministers, without exercising any voice in the direction of that policy. It is sufficient to state these conclusions; it is not necessary to enter into any discussion of them. But while I thus avoid entering into controversial discussion, I feel it incumbent upon me to instruct you that the position thus laid down for you by your Ministers is not the position in which this country can permit Her Majesty's representative to be placed. In truth, the only satisfactory solution for the present difficulty is to be found in that spirit of reason, of good sense, and of cordial co-operation which I am sure will not be appealed to in vain." 17 After such a reductio ad absurdum of "the system called responsible government," would it not have been more to the purpose for the Queen's Secretary of State to have instructed the Queen's representative that the only solution – not only of the present difficulties, but of the interminable difficulties which must always result from a policy which ignores duty, was a return to the mode of administration which he was required by the Queen's commission, and directed by Her instructions to pursue; and to which his oath to administer the Queen's Government required him to adhere?

It is time that some reference should be made to the actual results of this betrayal of the trusts of Government. When the British Government gave power to the local authorities of the colonies to deal with the waste lands, they made a sacrifice of the public interests to an extent which they could little have foreseen, and opened a door for corruption, such as the fondest speculator on the weakness of public functionaries never could

ABUSES OF ADMINISTRATION UNDER

have dreamt of. It would require a volume to trace the disastrous sacrifice of public property which has resulted in all the colonies from the subjection of so great a public interest to the ignorance and charlatanism of colonial-demagogues. The following passages are extracted from a published letter addressed in 1860 to Governor Gore Browne, entitled, "Illustrations of the System called Responsible Government." After having given the details of some extraordinary transactions in relation to land, the writer proceeds to say: – "There may possibly be some minds so constituted as to believe that all these illegal transactions, entailing so grievous a loss upon the land revenue of the province, did not take place in order that the Superintendent and the former partner of the Attorney-General might benefit by it; that is, that the framer of the law, and the principal administrator of the law, did not unite in violating the law for so base a purpose as to benefit themselves or their friends; but that such benefit was merely a secondary or incidental result of a tender sense of honour, and a virtuous determination that not even law itself should stand in the way of justice. The point to which I wish to bring the question, and in order to which I have pursued this disgusting investigation, is this – whether 'the system called responsible government,' which was called for by the House of Representatives; to which the Secretary of State said he had no objection; and under which your Excellency consented to see the colony governed, affords the same security to the public, that their affairs shall be as well and honestly conducted, as they would be under the real, and not the nominal, administration of a Queen's Governor. I put it to your Excellency whether there is any interest in England sufficiently powerful to have saved a Queen's Governor from ignominious dismissal who had been the agent in such transactions as these – against whom there was one-half the evidence of corruption which is evidenced by these transactions – or, even supposing he could have been cleared of corruption, who could have been capable of such sottishness as to violate the law for such an occasion as this?

"Having brought the case to this point, let us examine whether even these proceedings are exceptional, or whether such proceedings are not rather a part of the system regularly pursued: in other words, whether. the responsible government does not actually maintain a systematic violation of law. Your Excellency is much better aware of the state of things in the Province of Wellington than I am; I, indeed, have had little opportunity of knowing in detail what has been going on

THE SYSTEM CALLED RESPONSIBLE GOVERNMENT.

there. Of this much I am aware; that the Superintendent, who is entrusted with the custody of the public money of that province, to be expended by him for the purposes to which it shall be appropriated by an act of the Provincial Council, has, for a long period – probably not less than two years – been spending the public money without an appropriation act – that is – has been guilty of a continuous breach of the trust reposed in him by law. ** Is it any excuse that he has spent the money, as he alleges, for the good of the province? Who is to take his word for this? Was so impudent an apology ever offered for a criminal act – nay, for a systematic perseverance in criminal conduct, before the invention of 'the system called responsible government?' Doubtless, your legal adviser has told you that the Constitution Act has provided a remedy for this – that the Superintendent is removable by the Governor on a vote of the Council. But is it not evident, that if those who refuse the money, to be expended by him, were to petition for his removal on this ground, their own hands would be tied up when their own turn should come.

"It is very clear the public service is as little in the mind of

** By a return to an order of the House of Representatives, dated 23d October, 1860, "for a statement of the unauthorised expenditure incurred by the general Government during the period commencing on the 1st July, 1866, and ended on 30th September, 1860. Also a return of the amount of the unauthorised expenditure of the several Provincial Governments for the same period, or up to the latest date." (Signed) C. W. RICHMOND.

Dated Treasury, Auckland, 10th June, 1861.

It appears, that between those dates the general
Government had expended without any legal authority
the sum of

£20,245 12 9

And under guarantee of resolutions of the House
of Representatives the further sum of

23,477 9 8

Besides "expenditure in connection with the native
insurrection provided for by loan of £150,000,"
amounting to

25,043 14 2

That the Provincial Government of Auckland had
expended without legal authority

22,851 10 9

That the Province of Wellington, to 31st
December, 1860, had expended without any legal
authority the sum of

86,603 13 10

And under guarantee of resolutions of
Provincial Council

17,088 4 11

The Provinces of Hawkes Bay and Otago had
respectively expended the sums of £12,621 2s. 3d.
and £10,075 7s. 10d., and the Province of
Marlborough £175 7s. 8d., without legal authority.
From the provinces of Nelson and Canterbury
there were no returns.

It appears by the financial statement of the
Colonial Treasurer, received while these pages
are going through the press, that the
"unauthorised expenditure" of the general Government
during the two years from 1st July, 1863,
to 30th June, 1865, amounted to

161,610 0 0

Of which sum about £55,000 is said to
have been covered by resolution of the House,
authorising the removal of the offices of
Government from Auckland to Wellington.

ABUSES OF ADMINISTRATION UNDER

the party who is struggling to obtain power over the public money, as in that of the party who is determined to retain and use that power, although he can only do so by a systematic violation of the law. The Constitution Act requires that the proportion of the general revenue which falls to the Province of Wellington should be paid to the Superintendent of that province. But the question naturally arises – do not those who pay public money into the hands of a person who is notoriously putting it to an unlawful use, make themselves accessory before the fact to the offence which is committed? Or, if not, is the Constitution Act and the 'system called responsible government,' grafted upon that Act, to be looked upon as anything else than the framework of a conspiracy to defraud the public of their money and their political rights under pretence of governing them? Everything is made to work in a circle. One abuse is perpetuated by the introduction of another abuse. The abuses of the Superintendents are balanced by the abuses of the general Government, and each party, in sparing the misdeeds of the other party, finds an indemnity for its own. Everything is allowable that can be covered by the vote of a majority. This is 'responsible government!' The complicated provisions of the Constitution Act seem intended to enable the functionaries who act under it to bring forward one section of the Act to justify the violation of another section of the Act. I confess, when I consider that the Constitution Act of New Zealand, in what distinguishes it from all other Constitution Acts, was the work of Mr. Edward Gibbon Wakefield. I am inclined to believe that these were the means, joined to the system of 'responsible government,' another invention of the same distinguished artist, by which he intended to keep the administration of the colony in his own hands, and in the hands of his coadjutors.

"But to turn from Wellington, of which I know little, to Auckland, of which I know much, I beg your Excellency's attention to the proceedings of the Superintendent during the last twelve months, and to the proceedings of the Provincial Council during its various sessions. You will find the violation of the law assume a new and more remarkable phase. On a former occasion I brought to your Excellency's attention the fact that the present Superintendent, while locum tenens in that office, between a dissolution of the Council and a new election, spent the sum of 26,000l. of the public money, without legal, authority; a large portion of which was spent upon what were called public works, but which no one could deny were exactly

THE SYSTEM CALLED RESPONSIBLE GOVERNMENT.

such public works as would secure his own re-election to office, and the election of those who would support him in it. He has now gone a step farther. He has stretched beyond the measure of the Superintendent of Wellington, and of his own measure in previous years, and has actually taken the money which was appropriated by law to one purpose, and applied it to purposes for which it was not appropriated. Nor was this done to a trifling amount. The sum of 13,000l. was voted for harbour works, contingent upon the money being raised by debentures upon the security of the harbour endowment. The money was not raised by debentures, and yet the Superintendent actually expended 21,000l. upon these works, thus, by a double breach of the law, withholding the money from the purposes for which it was appropriated by law, and expending it upon purposes on which it could not legally be expended. The Council not only virtually acquiesced in these proceedings, but seemed to receive with approbation the observation of a member that every Government must violate the law – that he would be sorry to see a Government that would not violate the law. The Superintendent of Auckland stretches beyond the measure of the Superintendent of Wellington, but, what is more, he carries his Council with him. It would be more economical and productive of less injury to public morality to leave the expenditure of the public money to the will of the Superintendent. The corruption of one is a less evil than the corruption of twenty. Less money would be wasted in allowing the Superintendent to effect his purposes without any pretence of control than in making it necessary for him to bring a majority of the Council to sanction or acquiesce in his proceedings. The Provincial Council has become a false pretence, a piece of machinery which the large funds entrusted to the Superintendent enable him to work for his own purposes. The elective

Superintendencies and Provincial Councils are parts of the Constitution Act, which might exist without 'the system called responsible government,' but, in conjunction with it, they render misgovernment complete – an entire perversion of the functions of government from the true purposes of government to serve the selfish and ambitious ends of those who have got possession of the public offices and the command of the public revenue.

"I shall not trouble your Excellency with any more illustrations of the working of 'responsible government.' I have shown the dealings of its members in cases where they had to decide between the interests of themselves and their friends, and the interests of the public; and in other cases where they

DISREGARD OF THE OBLIGATION OF CONTRACTS

had to decide between the public interests and the interests of parties indifferent or obnoxious to them. It is difficult to say which class of cases is most instructive. I have also shown, in few words, how harmoniously they have worked with the Superintendents in producing and perpetuating abuses, and in making the violation of the law the chief means by which the Constitution is kept in action. Is it worth while to enter into the question, whether the system is disgraced by the men, or whether honest men could be employed under such a system? Can anything be more clear than this, that with the command of 280,000l. or 300,000l. a year, the least scrupulous will be the most successful in purchasing support? I have before adverted to a supposed necessity as the only excuse for continuing such a system. Whence is the origin of such a dogma? The true questions are these: – First, is the British Government unable to rule a dependency of 100,000 people? or secondly. Is it entitled to withhold the protection of British laws from any class of the Queen's subjects? Whether the British Government is entitled to throw off a class of British subjects, and give them what is popularly called 'self-government,' is a constitutional question of deep interest. In such a case, however, they could not refuse to the colonists the right of settling in a Convention the Constitution under which they would be governed, and of choosing the men to whose government they would submit. In such a case nothing would remain for any British subject who objected to the new Constitution and the new Government but to leave the colony. But while we remain British subjects, while the colony is, even nominally, ruled under a Governor appointed by the Queen, it is riot competent to the British Government to withhold from us the protection of British laws and of the Queen's authority, against men who oppress us by enacting laws which (being repugnant to those fundamental laws of the realm which constitute the bond of allegiance and protection between the Sovereign and the subject) have no legal validity, and who may commit the most flagrant breaches of trust with impunity, because they are made responsible, not to the Queen's Governor, but to a majority of a representative Assembly. "

Since the date of these observations, the state of things which they describe is far from being improved. Moral considerations appear to have no place with administrators of the class which "responsible government" brings into office. The obligation of contracts is only so far observed as it serves to consolidate their power. Public faith, as might a priori have been

UNDER THE SYSTEM CALLED RESPONSIBLE GOVERNMENT.

predicated, cannot co-exist with a Government which can only be established by the abnegation of moral obligation, and which can only maintain itself by creating and controlling votes.

Two remarkable appeals to the Privy Council from New South Wales, afford good illustrations of this. The one is an appeal from the decision of the Supreme Court of that colony on the part of the Government in a case, the following brief notice of which is quoted from the Sydney Morning Herald: – "In the case of Dumaresq v. Robertson, decided by the Supreme Court during the week, a principal question was, whether a promise of a grant, made by Governor Darling – when the Governor for the time-being represented only the Imperial Administration – was binding upon the Governor of the present day, who acted under the advice of Ministers responsible to the colonists alone. The Court held that it was binding. The only legally recognisable government was that of the Sovereign, locally represented, and a promise made in the name of the Sovereign at one time was binding at all times thereafter. And as the Queen granted land by her governors, the latter must be presumed to have, inherently, the power of negotiating for grants, and therefore of making promises."

The other was that of an appeal against the legality of a municipality, established (by proclamation) under a colonial enactment, whereby the inhabitants of a town on one side of a navigable river, occupying small portions of land, would be able to lay the burden of local taxation almost exclusively upon land belonging to an individual whose land was situated on the other side of the river, and which was only suitable for pasture; and could derive no benefit from the outlay. The enterprise was suggested by a leader of the Demos, who denounced the proprietor of the land as a "'Mammoth Monopolist,' who occupied land upon which 50,000 people might be settled." This land he described as a "veritable diggings under the Municipal Corporations Act, which would require no expensive machinery," "the only thing to be crushed there being a miserable earthworm, which can be done by the simplest possible process – the mere vote of the Shoalhaven Municipality." The rate, which would amount to 2s. 6d. a year on the occupier of a town lot, would, it was asserted by the party who recommended this act of extortion, amount to 2250l on the "Mammoth Monopolist." But the influence of this leader of the Demos was sufficient to make or unmake a Ministry; of so little value are laws and Constitutions of Government, unless the governing power is administered with integrity.

RUINOUS FINANCIAL RESULTS OF THE

In both cases the Privy Council decided in favour of the parties oppressed. These parties were men of wealth and standing in the community, and were able to defend themselves, but how would it fare under such Administrations with individuals too ignorant to understand their rights, or too poor to maintain them?

The financial results of "responsible government" so-called in New Zealand are worthy of some further illustrations. In order to a just appreciation of these, it may be of use to advert to the expenses of government in other countries. In the United States of America, before their late troubles, there existed, as in New Zealand, two Governments – the general Government of the United States, and the distinct Government of each separate State. By a document "printed for the Senate" in 1854, it is stated that the whole charge of the double government only amounted to 17s. a head of the population – viz., of the government of the United States, including army and navy, diplomacy and foreign relations, about 8s.; and of the State or domestic government, including "clergy, road-building, militia, poor-rates, town expenses, schools and county expenses," about 9s; and these charges had nearly doubled in the preceding twenty years, for in 1832 they amounted to only 9s. It appears from Mr. Montgomery Martin's "History of the British Colonies" that the rate of taxation in the North American Provinces, before the introduction of responsible government, was in Canada about 7s. a head, in Nova Scotia about 5s., in New Brunswick about 10s., in Prince Edward's Island about 7s. The whole government of France, including its immense army and navy, did not at the same period (1852) exceed 1l per head of the population. In 1863 Mr. Gladstone,. the Chancellor of the Exchequer, stated in the House of Commons that in Ireland the taxation amounted to 1l. 2s. 10d., and in England to 2l. 11s. 7 1/2d., per head. Since the days of Adam Smith a freedom from taxation in new colonies has always been considered as, next to the abundance of land, one of the principal elements of their prosperity. In the colonies of New Zealand, which, of all others, have suffered most from empirical government, the rate of taxation by Customs duties had reached nearly 2l. a head before the introduction of representative institutions. But, in a financial statement of the Chancellor of the New Zealand Exchequer, the Customs revenue for the year 1862-63 is estimated at 413,000l. From the same statement it appears that "this estimate of 400,000l. gives an average receipt of 4l. a head

SYSTEM CALLED RESPONSIBLE GOVERNMENT.

from every man, woman, and child in the colony;" in addition to which the provincial taxation amounted to about 10s. a head; and, in still further addition to the revenue which was thus raised, there was an income of 285,000l. from land. Since then, an addition of 30 per cent, has been made to the Customs duties, which will raise the taxation to the unprecedented rate of 6l. a head. 18

But all this was inadequate to meet the purposes of "responsible government." Not only the general Government, but most of the provincial Governments, have mortgaged the property of the colony by borrowing money to a vast, and what would almost appear to be an incredible, extent; the Acts passed by the general Legislature having authorised the raising of loans to the amount of not less than 3,000,000l., and the ordinances of the Provincial Councils having, though illegally, made provision for the raising of upwards of 1,500,000l. by the issue of debentures.

With regard to the borrowing of money by the provinces, the Constitution Act has the following provision: –

"It shall not be lawful for the Superintendent and Provincial Council to make or ordain any law or ordinance for regulating any of the current coin, or the issue of any bills, notes, or other aper currency." (Clause 19, sub-section 3.)

In proposing to his Council an ordinance to authorise and regulate the issue of debentures for the sum of 500,000l., the Superintendent of the Province of Auckland stated that he had obtained the promise of the "responsible Ministry" that, if passed by the Council it should receive the Governor's assent. The ordinance passed the Council, and received the Governor's assent. By an express enactment of the Constitution Act this , was an illegal ordinance; but so little is law regarded in the colony, that the debentures were all purchased by a local institution, of which most of the members of both Legislatures and Governments were proprietors. The ordinance could have no effect without the assent of the Governor, but in each of the two previous changes of "responsible Ministers," the change had been effected by a majority of one vote. The Superintendent and one of his subordinates being members of the House of Representatives, it is esy to understand what the res dura et novitas regni of a Ministry depending upon a majority of one

HISTORY AND ANOMALIES OF THE

may compel them to submit to. Such are some of the financial results of the system called responsible government, and, it may be added, that such or similar results are not altogether peculiar to New Zealand, but common to other colonies into which the system has been introduced. **

When any change is proposed in the Constitution of any one of the United States of America, there is a special "Convention" for the purpose, at which deputies are elected to consider the specific changes proposed; and in the Constitutions of some of the States there is a special provision for a periodical Convention to consider whether any, and, if any, what changes may be expedient. There is something very absurd in the British Government professing to have acted upon the alleged wishes of the colonists in giving them a Constitution when not one colonist in a hundred ever heard anything of the matter until the two or three persons who pretended to represent them had accomplished their designs.

On the other hand, nothing is more remarkable than the way in which the home Government has set aside the only legitimate expressions of the wishes of the colonists of the Northern province which have been sent to England. The city of Auckland was, by an express instruction of the Queen, communicated through Lord Stanley when Principal Secretary of State for the Colonies, proclaimed, in the most public and authentic manner, to be the capital of New Zealand. Had the Provincial Council of that province been actuated by ambitious motives, they would have abstained from any proceeding which tended to deprive the Province of Auckland of its superiority as the seat of the general Government for all the provinces. They sought not to continue such a superiority; they sought to have the management of their own local affairs without the interference of strangers. They set forth in their petitions, sent to the Queen and both Houses of Parliament in 1853, 1855, 1858, and 1862, the anomalous and unprecedented character of the Constitution, which confederated six colonies, each as distinct from the rest as any colony that was ever planted from all

** In 1863 the debts and rate of Customs duties of the several Australian colonies per head of the population were as follows: –

Rate per Head
of Debt.

Rate per Head
of Customs Duties.

New South Wales

£11 5 6

£1 15 3

Victoria

14 7 6

2 6 3

Queensland

13 10 0

2 6 4

South Australia

6 3 6

17 0

New Zealand in 1865, about

45 0 0

4 9 11

Great Britain about,

24 0 0

2 11 7 1/2

CONSTITUTION OF THE NEW ZEALAND COLONIES.

other colonies under one general Government and Legislature; which general Government and Legislature had power to abrogate the acts of the local Legislatures and authorities of the individual provinces, thus subjecting the interests of the inhabitants to be dealt with by a majority of persons who had no interests in common with theirs, but who had interests antagonistic to theirs.

They showed that each province was capable of maintaining a sufficient Government for the management of its own affairs; that while the colonies were dependencies of the Crown the (so-called) general Government could exercise no functions of a general or national character, nor any other functions which each province was not more capable of exercising for itself; that it was not simply a useless and uncalled-for institution, but that its existence was incompatible with the true objects of government; its only effect being to create a governing class, which could only exist by complicating public business and rendering the true objects of government impossible. 19

When the Constitution Act of New Zealand was passed in 1852 the Parliament was in "a state of dissolution." Sir John Pakington, at that time Principal Secretary of State for the Colonies, threw himself on the forbearance of the House, representing the necessity of passing the bill, or of renewing the Act, by which the previous Constitution Act giving representative institutions had been suspended; but stating that if it should be debated in committee on every clause which any member might object to, there could be no hope of its passing before the dissolution.

There was a general agreement amongst the members who spoke, to allow the bill to pass, however much they might object to some of its peculiar provisions. What was chiefly insisted upon was its approval by those who were said to represent the wishes of the colonists. But of those provisions the colonists of Auckland, whose number was equal to the average of two of the other provinces, being one-third of the whole, knew nothing until it was too late to remonstrate. The baneful influence of Mr. Gibbon Wakefield and his associates of the New Zealand Company was still in the ascendant in the Colonial Office. On going into committee on the bill, Sir John Pakington presented several petitions. "The last of these petitions," he said, "was from Mr. Gibbon Wakefield, the prayer of which was particularly directed to the question whether there should be provincial Legislatures, or whether

HISTORY AND ANOMALIES OF THE

there should be a Central Legislature, and Legislatures for particular localities. With his usual ability, Mr. Wakefield discussed the subject, and earnestly prayed that the bill, as it stood, might pass into a law."

He subsequently stated that: –

"The case had been so strongly put by Mr. Gibbon Wakefield, that he hoped the House would permit him to refer to an extract."

With respect to Mr. Gladstone, "who, if he rightly followed the right honourable gentleman in a former debate on this subject, expressed great objection to the course he (Sir J. Pakington) had taken of establishing a Supreme Legislature in the colony.......He could not but think that, for the future welfare of those colonies, there should be one Supreme Legislature, whose power shall be superior to those minor bodies, who ought to deal only with the interests of their own localities, subject to the paramount authority of the Central Legislature." "Having had opportunities of consulting parties directly connected with Nelson, Wellington, Otago, and Canterbury – namely, four out of six localities."

He agreed with the noble lord who preceded him (Earl Grey), "that anything like an elective Executive was unknown to the British Constitution;" but was afterwards induced to make the office of Superintendent elective.

In Mr. Gladstone's speech is the following passage: –

"Take, said the honourable member for Southwark (Sir W. Molesworth), the Central Legislature, and make it the fountain of power; on the other hand, I say let the district Legislature be for New Zealand, and, under its circumstances, the fountain of power. But I do not think this bill proceeds consistently either on the one principle or on the other; and concurrent jurisdictions, I must confess, are to me subjects of apprehension and alarm. A concurrent jurisdiction in the business of legislation means uncertainty, conflict, and confusion. The overriding of arrangements already made, under authority deemed competent, by extraneous power, must ever lead to annoyance and angry feeling. What reason can there be if these district Legislatures are fit to deal with the subjects that come before them; what reason can there be that their decisions should be subject to revision?"

Sir William Molesworth said "that the General Assembly would ultimately eat up the Provincial Legislatures and reduce them to municipalities." The Duke of Newcastle, that "either the Central Government would swallow up the six minor Legis-

NEW ZEALAND CONSTITUTION.

latures, or that the six minor Legislatures would eventually render useless and cause the abolition of the Central Legislature." It does not appear to have occurred to any one that a dependency could have none other than local affairs to administer, without usurping, under the term of a "general Government," the functions which belong exclusively to the Sovereign Government of the Empire; or that the central and provincial authorities would in the long run unite harmoniously in a general system of corruption, mutually condoning the illegal action of each other. 20 But the House being "in a state of dissolution," the Act was permitted to pass with all its acknowledged imperfections.

Mr. Gladstone seems to have been in favour of yielding still more power to the colonists, eulogising the first Constitutions of the Puritan settlements of New England, one of which he referred to as providing a Governor for one year, after which the colonists were to elect their own Governors. But he overlooked the duty of protecting individual colonists from the tyranny of local authorities. Grahame 21 gives some instructive illustrations of the state of things which was brought about by the Constitution he eulogised. In 1631 "the Assembly of Massachusetts enacted that none but Independents should hold office in the colony, or act as jurymen; and it banished shortly afterwards Roger Williams for his religious opinions. It inhibited smoking under a penalty, but permitted the practice as soon as some of the Independent Ministers had given way to that indulgence. Jesuits and other Romish priests were subjected to banishment, and, in case of their return, to death. This cruel ordinance was afterwards extended to the Quakers, and all persons were forbidden, under the severest penalties, to import any of 'that cursed sect' or of their writings into the colony. All persons were forbidden to run or even to walk, except 'reverently to and from the church,' on Sundays, or to profane that day by sweeping their houses, cooking their victuals, or shaving their beards. Mothers were forbidden to kiss their

EXPLANATION OF THE ANOMALIES

children on that day.. Pecuniary mulcts were imposed on every person 'observing any such day as Christmas.' A convicted criminal known to have had accomplices, and refusing to disclose them, might be subjected to torture. Dancing was proscribed; and kissing a woman in the street, even in the way of honest salute, was punished by flogging."

In 1759 a British ship of war was stationed off the coast of Massachusetts for the protection of its trade during the war with France. The captain had left his wife at Boston. Returning thither on a Sunday after a long cruise, his wife rushed down to the beach to meet him, and they embraced each Other upon meeting in the open street. For this breach of the laws and supposed desecration of the Sabbath, the captain was summoned before the magistrates, gravely rebuked, and sentenced to be flogged, which punishment was inflicted upon him accordingly; a compliment which, as the story goes, the captain returned by inflicting the same number of lashes to which he had been subjected upon each of the magistrates at the conclusion of a farewell entertainment given on board his ship on leaving the station. Such, even amongst the Pilgrim Fathers, were some of the consequences of not maintaining the law of England, and administering the government according to constitutional precedent. (Grahame, Book II., cc. 2 and 3, and Appendix.)

In a speech, on moving for a Committee of the Provincial Council of Auckland to prepare their third petition to the Queen and Parliament (that of 1858), a member of that Council is reported to have thus expressed himself in relation to the Constitution Act: – "Now, sir, it is. time that we should endeavour to trace something of the history of this strange and anomalous machinery of government in order to account for so extraordinary a departure from all precedent in colonial administration. I hold it, sir, to be impossible that any man, or any set of men, sitting down to frame a Constitution for an infant colony, and having only, in his or their mind's eye, the peace, safety, and prosperity of the infant community, could ever have contrived such a Constitution as this. But I can imagine an association of adventurers, willing to undertake the toils of government, and anxious that the infant community should enjoy the advantage of their united wisdom and talent, framing such a Constitution as would give full scope to their endeavours to manage the affairs of a colony with profit and advantage to themselves. We all know that Auckland was settled by a fortuitous concourse of individuals, each pursuing

OF THE NEW ZEALAND CONSTITUTION.

his own objects in his own way. We know that the other five colonies were organised by a company or association; in some cases by the aid of subordinate associations, each of which had its own peculiar crotchets for the management of immigration and the settlement of the colonists; its own schemes for establishing 'a sufficient price for land,' 'and a sufficient remuneration for labour;' and that the circumstances under which Auckland was settled were loudly complained of as inconsistent with the success of those crotchets and organisations. My time forbids me to refer more at length to these organisations. But I will ask the Council to suppose that the whole of them were the contrivance of one of the acutest minds of the nineteenth century: of a person who, judging from his antecedents, was not likely to be prevented by an over-conscientiousness from attaining his ends. And that all their movements were regulated by the same skilful hand; and all directed to give the most extensive field of operations to those who had shared in the venture, and were waiting to undertake the duties of government, and to make such provision for those duties as 'might not disappoint the reasonable expectations' of those who considered themselves 'the founders of the colonies.'" After quoting from a published letter from Mr. Gibbon Wakefield to the Duke of Newcastle, complaining that the General Assembly should meet at Auckland and not at Wellington – stating that "it became him as one of the principal authors of the Constitution, and as one of the principal founders of the colony, to declare publicly against the present policy of the Government" – the speaker proceeds: – "Can any member have now any difficulty in understanding the net-work of contrivances by which we have been enveloped, and the motives which led to them. Let the seat of Government be transferred to Wellington as the most central position in the islands; let the revenue of all the colonies be collected into one common purse; let that purse be placed in the hands of the principal associates in the scheme; let what may remain of it, when their objects are accomplished, be made a stake to be gambled for by the election of parties to spend it; finally, let the Queen's representative be denuded of power to interfere with the working of the machinery under a system which is called responsible government; and then let us ask ourselves the question whether the Prince of Schemers has not exceeded all his former efforts in ingenuity, by making use of a community to aggrandise the leaders, and maintain the largest number of political adventurers associated with him which the community could,

INJUSTICE WROUGHT TO THE

by any means, be made to support. The Abbe Sieyes said, when the first French Revolution was accomplished, that the difference between the new state of things and the old was this: – That whereas, before, the Government was everything and the people nothing; now, the people was everything and the Government nothing. Sir, this Constitution reverses the picture, and places this community in the position of the French people under the old regime, who were divided into 'un gens corveeable et taillable" – a class whose part it was to labour, and to bear the public burdens; and a class whose privilege it was to lay on those burdens, and enjoy the fruits of those labours. I believe, sir, that whoever enters into the investigation the most deeply, will be the most fully convinced that, in the history of Governments, ancient or modern, the ingenuity of men has not been able to contrive a system that enabled one class of the community to constitute themselves a governing class, so disproportioned to the rest of the people; 22 or one which consumed so large a proportion of the earnings of

COLONISTS BY THE NEW ZEALAND CONSTITUTION.

industry; or one which, so far from promoting the peace and well-being of the community, did more to stir up party strife and ill-feeling, and to corrupt and debauch the people, as this Constitution of New Zealand with its responsible government."

Another extract from the same speech will not be out of place as serving to illustrate the view taken of the injustice under which the colonists of Auckland were suffering, and the struggles which were made to obtain the restitution of their constitutional rights: – "Having entertained these views from the first appearance of the Constitution Act, my very first act, on becoming a member of the first Provincial Council, was to submit a motion identical in purpose, if not in terms, with the motion I am about to propose. The motion was carried unanimously, though the adoption of the petition was only carried by a majority of ten to eight. I could very satisfactorily explain the reason of this difference, but I will not now detain the Council by doing so. The answer was that the petition had been presented to the Queen, and very graciously received, but that Her Majesty had not been advised to give any orders respecting it. Again, sir, as you and some of the members of this Council are aware, I brought the question before the Council in the session of 1855, on which occasion the motion was agreed to and the petition adopted unanimously. The answer was the same as in the former case, in the sterotyped form when the Government have not made up their minds one way or another. I know, sir, that, in the view of these discouragements, there is a very general belief that any further attempts to procure a change of the Constitution will be unavailing. I do not in the slightest degree partake in that belief, I believe in the omnipotence of truth, and that those who adhere to truth and will pursue it will finally triumph over injustice. I hold, sir, that the people of this province are treated with the greatest injustice by the Constitution Act, and that all that is required to get rid of it is that every man should satisfy himself, first, what are the rights to which he is entitled as a British subject, and then express his determination by peaceable means to maintain such rights as we still possess, and to recover those rights of which we have been defrauded by this Constitution, in order to obtain that due share of the liberty and protection which the Queen is bound to afford to all her free subjects, whether in Great Britain or in colonies planted by British freemen. I use the word freemen with emphasis, for this colony was for some years ruled as a convict colony – I

DIFFERENT IDEAS OF A GOVERNMENT

say deliberately, worse than a convict colony – and that the Constitution under which we are now governed is, as I am about to show, a false pretence of government and representative institutions, according to the laws and customs of British freemen. There are two ideas of what we call a Government, the one or the other of which is impressed upon our minds according to the point of view from which we regard it. In old countries – take as an instance that of England – the origin of Government is shrouded in the shadows and mists of a thousand years; hereditary institutions have conferred hereditary privileges, which have acquired the force of rights, and have so long and so wisely been considered as rights, that no good man ever thinks of calling them in question. We say the Queen has a right to her throne, the peer to his peerage, the member of the House of Commons to the seat in the House of Commons to which he has been elected; and we are ready to forget that these privileges are, in fact, trusts held for the benefit of the people, and not for the gratification of pride or the selfish ambition of those who hold them. And, sir, while these trusts are administered with integrity the waves of faction will dash in vain upon the foundations of the British Constitution. They are at once the glory and the safeguard (et decus et tutamen) of the Empire. I consider that every British subject has a right to be proud of the Constitution of his country, which has long stood amongst the nations as a monument of the wisdom of ages, combining the stability of the Throne with the liberty of the subject. This, sir, is one idea of a Government – the idea of an institution which one regards as a thing established as much as the return of day and night, of summer and winter. We think and speak of the Government of England as we do of the palaces of its Sovereign, which, indeed, change their inmates, but are enduring; or its oaks of a thousand years, which cast their leaves and renew their verdure, but have not begun to decay – an institution which has its faults, as everything human has its faults, but whose faults are like the dust which gathers in the corners of its palaces or the mosses which cover the trunks of its oaks.

"There is another idea of a Government which reduces it to its elements. Population – to use the language of the economists – begins to press upon the limits of subsistence, the country is too strait for its inhabitants – the mother hive casts off her swarms – a new community commences the race of existence in a new country, unfettered by the restraints of the old, yet enlightened by its experience – with all the advantages

ARISING FROM DIFFERENT CONDITIONS.

of ripe civilisation, and yet free from the abuses which spring from the crowdings and competitions of society. This, sir, is a stage in the progress of human affairs which opens a new view of the institutions of government, and affords a rare opportunity for reducing its powers to their elements – for casting off the clogs and abuses which may have accumulated upon the institutions of the old country, and separating the essential functions of government from those which corruption may have contrived for the exclusive advantage of its administrators. The question arises, in what relation does the swarm stand to the hive from which it has taken its flight? It is not my intention to enter into any disquisition on the abstract rights and duties which belong, respectively, to the mother country, and the new community which has acquired a separate existence. I shall not go for illustration to the history of ancient colonisation, or of modern European colonies proceeding from other countries than England. To men who are themselves colonists, no inquiry could, rightly considered, be more interesting; but our time will not admit of it – and as regards ourselves, this relation has been settled for two hundred years. I hold it to be the duty of every British colonist to study the history of British colonisation. It will be found pregnant with lessons of instruction. Beginning with the first dawn of British emigration, and tracing its progress from the first settlement of the Pilgrim Fathers in New England, down to the establishment of the colonies of New Zealand, he will witness in operation every variety of human motives, and their corresponding results. At one end of the scale he will see a society of men laying the burden of government upon those of its members who were best qualified to bear it, and its necessary functions performed as a duty – the tenure of office not aspired to as an honour, or sweetened by its rewards – the wants of society claiming the aid of its members, and each member rendering his aid as a duty to the society. Take the following extract from the short and simple annals of the Pilgrim Fathers: – 'After having been chosen to the office nine years in succession, Governor Bradford was, by reason of his importunity, let off from serving the tenth year, without being fined.' Here is the perfect development of the idea of government, naturally arising from the condition of human affairs, springing from, and adapting itself to, the wants of the community. At the other end of the scale we shall see a state of things which is altogether unparalleled at any intervening period: a governing class establishing and maintaining themselves at the expense of

INSTABILITY OF COLONIAL CONSTITUTIONS

the community; more numerous, probably, in proportion to the population, than is to be found in the oldest and most corrupt countries, where the complicated interests of a crowded population require institutions which are unnecessary in a young community."

The leaders of the New England settlers were men with whom devotion to God, and the duties which, according to their views, sprung from it, were paramount. The prime mover of the Southern settlements of New Zealand was of a different character. He acquired his ideas of colonisation from his communication with convicts who had returned from the penal settlements of Australia. After three years' imprisonment in Newgate, he came out, as a late friendly notice of his life tells us "like Napoleon III., from the fortress of Ham, prepared to effect great things. "

The various Constitutions which have been framed by a departure from the old principles and analogies of provincial government have, year by year, shown their instability; and the home Government, in the same spirit of so-called liberality, which led it to depart from those precedents of colonial administration that have stood the test of two centuries, has yielded from time to time to the suggestions of the democratic leaders, in altering, or giving power to the colonial Legislatures to alter them. In the colonies of Victoria and Tasmania the Legislative Councils, instead of being nominated by the Crown, have become elective. In New Zealand various changes have been effected in the Constitution Act to accomplish some temporary expediency of the men in office. But the effect of these alterations has almost invariably been, by increasing the power of the majority, to enlarge and complicate the machinery of Government, and to aggravate the confusion which seems the necessary result of the abnegation of duty, and the substitution of the will of the majority for those principles of right and wrong which are unchangeable, and are universally acknowledged.

In New Zealand, the machinery of Government, under the Constitution of 1852, altered, as it has been from time to time to suit the temporary expediency of the holders of office, is of so complicated and extensive a character as to require all the talent which its administrators could command to keep it in action; and to adjust the movements of its various parts, confining their attention to the movement of the machinery, and losing sight of the results which it ought to produce. It has proved to be the very materialism of politics – a body without a soul – a maximum of forces producing a minimum of results.

NOT IN ACCORDANCE WITH ANCIENT PRECEDENT.

In the course of a few years six distinct colonies were planted in those islands, each as distinct and separate from the rest as any one colony which was ever planted was from all other colonies. According to the principles of British administration and to the ancient analogies, each of these colonies should have had its Governor or Lieutenant-Governor, its Legislative Council, and its House of Assembly; and at the period when the present Constitution was enacted, the least considerable of those six colonies was as capable of maintaining such a form of government as many colonies which have enjoyed it for upwards of a century. But the overriding powers of the general Government and Legislature have made it impossible to administer in any of the colonies the simple functions which belong to a subordinate Legislature, and, which, if left to their operation, could not fail to produce the fruits of peace, order, and well-being in the community.

In such a group of colonies as those in New Zealand there is one object, and but one, which requires an overriding authority – that is, the power of directing the Queen's forces in the event of war. It would clearly be inexpedient that the officers in command of the troops or naval forces on a distant station should be subject to the contingency of conflicting applications from different Governors. It is therefore necessary that there should be a Governor-General, to whom alone such applications should be addressed; and this is in strict conformity with established usage. There is a Governor-General in the various groups of the West India Islands, but his civil functions are restricted to the administration of the affairs of the principal colony which is chosen for his residence. Sir William Denison was Governor-General of all the Australian colonies, but he was instructed to avoid all interference with any other of them than New South Wales, even should he happen to be present in any of them. It has been affirmed that it is necessary that there should be one policy for the management of the natives of New Zealand, and that, therefore, they should be under one authority. It is this very "policy" which has created confusion amongst the natives, and led them to combine against the Government. The presence of natives in any settlement is the strongest reason why there should be in that settlement a paramount authority at once, and without delay, to deal with difficulties as they might arise.

The fallacy involved in the adoption of the suggestions of the Democratic leaders as the wishes of the colonists, who are assumed to be the best judges of their own interests, is not

FAILURE OF THE NEW ZEALAND CONSTITUTION.

greater than the fallacy, almost amounting to a superstition, that the concessions and franchises which are yielded by the sovereign power, in supposed or real compliance with those wishes, are to be considered in the light of vested rights and privileges, which cannot be revoked or annulled; or as involving "an engagement to which it is necessary strictly to adhere." If the wishes of the colonists are to be the sole guide of the Imperial Legislature, in providing the institutions of government for the colonies, those wishes should be ascertained by some other process, or through some other channel, than the suggestions of a few individuals whose ambition is to be served by their adoption. But if the end and aim of government is the peace and welfare of the community, the delegation of authority, under whatever form, can be looked upon in no other light than as a trust for the purpose of securing those objects – a trust which conveys no personal or vested rights, and which the power that conveyed it is not only entitled, but bound, to resume, on its having failed to accomplish the objects for which it was created, and become a cause of injury to the community which it was intended to serve.

It is beyond all question that the Constitution granted to New Zealand by the Act of 1852, with the alterations which it has since undergone, has failed in producing the true ends and objects of government. The present condition of the New Zealand colonies can only be described as that of an organised anarchy. The native element has undoubtedly been one of great difficulty; but it was made so by the earliest Acts of the Government in destroying the confidence of the natives in its uprightness (as will be fully shown in the subsequent part of this work), as well as by the want of a paramount authority at each centre of population to deal at once with native difficulties as they arose. The natives could well appreciate the position of a Governor representing the authority of the Queen, but the institution of Superintendents and responsible Ministers appeared to them altogether incomprehensible. Accompanied, as their measures were, by vacillation and weakness, they created contempt where the natural disposition was to venerate, the embodiment of a power which they long considered irresistible. Had the first prestige of an authority wielded only in the maintenance of right not been destroyed, the natives of New Zealand might have been led like sheep by the hand of an upright Governor through the child-like confidence in the Sovereign of England which was instilled into their minds simultaneously with their conversion to Christianity. What do

NATIVE DIFFICULTY.

they tell us now? They find public affairs in the hands of men in whom they fail to discover the credentials of public authority, or, in most instances, any particular claims to personal respect; they find in them an infirmity of purpose as well as a renunciation of duty. They tell us, "We like your laws; it is your men that we do not like." 23

Wi Tako, a firm friend of Governor Grey in his former Administration, thus addressed him on his visit to the Southern districts on the 16th September, 1862: –

"When you were fighting with Rangihaeta you called upon me to assist you, and I did so, without waiting to consider whether he was my relation or countryman. You asked me to assist you at Wanganui, and I did so without demur. After the termination of the war you went to England, and there was a new form of government for New Zealand, Superintendents, and such like, numbers of them, and I was puzzled to know who was Governor. After this Rawiri Waiaua, a near relative of mine, an assessor also, was murdered at Taranaki, and I was much grieved about it. I went to the Superintendent at Wellington, Dr. Featherston, and asked him to go with me to Taranaki to inquire into this matter (he is standing near you and cannot deny it) more particularly, as at the time of the murder Rawiri was doing the work of Government. The Superintendent answered me by saying, 'I am not the captain of the ship, I am only one of the mates; I cannot interfere.' Now, as I always understood, that upon your departure for England the Superintendent was Governor here, and, he having refused to interfere in this matter, I then began to understand that it was not to protect the Maori race, but to acquire their land, was the great object of the Government, and for this reason I am earnest in upholding the King movement."

They tell us the foundation of this King movement is "faith, love, law;" and they show by their devoted bravery and self-sacrifice that they are sincere in their professions, however mistaken in their proceedings. It is a most sad necessity which brings an army of Britons to reduce such a people to obedience by the destruction of one-half of their number.

It has been shown, so far as regards the colonists of Auckland, to be indisputable that the Constitution, which has proved such an utter failure, was not only not granted in accordance with their wishes, but that they had no knowledge of it till it reached them in the form of a law;

SUGGESTIONS FOR A NEW

that one of the first acts, if not the very first act, of the Provincial Legislature, on its first meeting, was the preparation of a petition praying that the colony of Auckland should have a constitutional Government, in accordance with the admitted right of British colonists to manage their own local affairs, subject only to the paramount authority of the mother country; that the subsequent petitions of that Council maintained and renewed a continued protest against a Constitution which made their interests subservient to the ambition or interests of other colonists, with whom they had no connection whatever beyond being subjects of the same Sovereign. Finally, the colonists of Auckland have with one voice approached the Throne, pointing out the evils which have resulted from "divided counsels" to both races of Her Majesty's subjects, and reiterated their petitions for a separate Government for the province, as the only means of relieving the colony from those evils, and providing for the welfare of both races; the Governor of the colony concurring with the colonists in the opinion that "unless some such arrangement is carried out, it will be impossible to bring to a satisfactory termination the difficulties prevailing in the country." It is difficult to conceive how the unanimous petitions of a whole community, resting upon such grounds, appealing to such experiences, and supported by such authority, can be denied. Its denial would be, indeed, a virtual repudiation of all the principles of colonial administration by which the British Government has been actuated in its dealings with colonists, from the earliest days of colonisation, saving only in the necessary exception of convict settlements. No better opportunity could be desired for a return to that form of colonial administration of which two centuries of experience have testified the efficiency; and in departing from which, in later instances, the home authorities, in deference to the wishes, or supposed wishes, of the colonists, consented to forego their better judgment.

In one of the debates upon Canadian affairs the Earl of Derby stated that he never expected to see the day when an elected Legislative Council would be a more Conservative body than a nominated Council. Such a result could only be due to the party schemes of a Ministry depending for their tenure of office upon the necessity of creating votes to swamp the free expression of independent judgment. It is difficult to bring any abstract principles of government into operation without reference to circumstances actually existing. In order to meet the complications which had resulted from the anomalous Con-

CONSTITUTION FOR THE PROVINCE OF AUCKLAND.

stitution of the New Zealand colonies, joined to the action of party government, the following Constitution was suggested to Governor Browne, and met with his unqualified approval. It was intended only for the province of Auckland, and would be well calculated to facilitate the introduction and harmonious action of a Constitution framed upon the ancient model: –

1. A fixed civil list for the essential functionaries of Government, the administration of justice, and native purposes.

2. An Executive Council appointed by the Crown, to consist of the Colonial Secretary, the Colonial Treasurer, the Attorney-General, and the Commander of the Forces, who should hold office quamdiu se bene gesserent.

3. A Legislative Council of not less than twelve and not more than sixteen members, to hold office during life, and to be appointed thus: – The House of Representatives, on its first meeting, after having elected a Speaker, to ballot for double the number of the Legislative Councillors – say twenty-four; each member present putting into the ballot-box a list signed by himself of twenty-four names of persons over thirty years of age. The ballot-box to be opened in the presence of the Governor and Executive Council, and the Speaker of the House of Representatives; and a list of the names therein to be prepared, showing the number of votes for each name; such list to be signed by the Speaker and the Clerk of the Executive Council, and transmitted to the Secretary of State.

From this list the Governor, at his sole discretion, to select the names of twelve persons who shall be appointed to be members of the Legislative Council, subject to Her Majesty's approval.

4. A House of Representatives to consist of thirty members, to be elected for four years. The qualifications for members and electors to be, – that they are British subjects, able to read and write the English language; that they possess real estate of the value of 50l., or have occupied a house or tenement for three years, at the annual rental of 10l. The members of the Executive Council to be ex officio additional members of the Legislative Council, or of the House of Representatives, as they shall be severally appointed thereto by the Governor; and to have in every respect the same privileges as the members elected by constituencies, save that they shall have no vote. – August 15, 1861.

When it was finally settled that agitation would not lead to office, the turbulence of ambitious men would cease, schemes "of novel invention" would be less rife. Exempt from the

watchfulness and precautions necessary to preserve office, the holders of office would be able to attend to their proper duties, and the colonists would soon find cause to rejoice that they were under the government of the Queen, and not under the power of men to whom they owed no allegiance, and towards whom they could feel no respect. It is true that it would be in the power of the Assembly to "stop the supplies;" and such a power is one of the necessary elements of a mixed Government. But the Parliamentary Constitution having provided for the administration of justice and the maintenance of the offices essential for the exercise of the Queen's authority, the Governor could in such a case be in a condition to say to the Assembly – "That, gentlemen, is a measure which will affect yourselves and your constituents more than it will affect me. The points in dispute between the House and myself shall be referred to the decision of the Queen's Government in England, which must necessarily be final while the colony remains a British dependency. If, in the meantime, you should make it necessary to stop the public works and to starve the majority of the public servants, the responsibility of that remains between you and your constituents. I shall adhere to what my own views of duty require of me, until otherwise instructed by the supreme authority of the State from which I received my commission and instructions, and which alone has power to vary or overrule them."

1 Mr. Cobden.

2 Papers laid before Parliament on the 6th April, 1865.

3 Papers laid before Parliament on the 9th May, 1865.

4 Clark's Colonial Law. Note under page 126.

5 Story's Commentaries on the Constitution of the United States.

6 "The maxim or rule, Protectio trahit subjectionem, subjectio protectionem, has obtained in every age and in every country," – Chitty on Prerogative,

7 Hansard's Debates, vol. cvi., 19th June, 1849, p. 460.

8 Colonial Constitutions, by Arthur Mills, Esq., of the Inner Temple.

9 The Duke of Newcastle to Sir Henry Barkly.

10 The Duke of Newcastle to Sir George Grey, June 5th, l861.

11 The last three pages are reprinted from a paper read at the meeting of the Association for the Promotion of Social Science, held at York in September, 1864.

12 Dwarris on Statutes, Vol. II., p. 672.

13 The Sydney Morning Herald – a paper which has always been in favour of the system called responsible government, gives in its monthly summary of the 21st August, 1865, the following picture of the men which that system has elevated to the position of legislators: – "The last Parliament of New South Wales reached its last term of five years, and nothing could be more odious than its composition – nothing more necessary than its dissolution. The system of corruption had become perfectly organised and unblushing. In truth there is no sense of responsibility of members to their constituents, excepting within a very short time of an election. Political life in colonies resembles rather a procession, in which the travellers onward snatch on every hand what opportunity may throw in their way. The number who have risen into notoriety and sunk out of sight is not to be told. Many who were most demonstrative when Parliamentary government was introduced have gone from public recollection. Power given capriciously, and quickly withdrawn or abandoned, can never impose any serious obligations, 'Live while you live' is the motto adopted by that kind of wisdom which makes the most of the people."

The Aucklander of the 7th November, 1861, gives the following resume of the political condition of the Australian Colonies at that date: – 'The Governors of New South Wales and Victoria have been visiting the country districts of their respective provinces, and have everywhere been received with something more than respect; perhaps something different from it. They have been received with that liking which is naturally enough shown to persons who are willing to give everything to everybody; persons who are willing to try every sort of experiment in the body-politic in order to please the people and lead a quiet life.

"We wish we were in a position to give our readers an exact account of the Governments of the Australian Colonies in their present condition. We have laboured through piles of newspapers in order to master the subject, but we are far from being able to give more than the merest outline. On the whole, however, we should say that the fever of democracy has pretty nearly run its course. The colony which was allowed to choose the most democratic Constitution, to dispense altogether with a Second Chamber, representing the experience, the property, and the moral status of the community, was Tasmania. In the Tasmanian Constitution, the conservative element was altogether wanting. The Government and the Legislature consisted simply of the Governor and the House of Representatives. We should judge from the petition which we give in another column, that the sensible people of that colony have seen the folly of forsaking the old standard and departing from the old ways which the wisdom and experience of ages have established.

"The British Constitution until these days of experiment commenced was always considered the best model for the government of a free colony. The governmental institutions of the Australian Colonies have suffered from the original destination of those colonies as receptacles for convicts. And it was perhaps natural that from the despotic government which they required as large prisons, they should go to the opposite extreme when left to their own choice. For it has been of late years the policy of the Colonial Office not to uphold British institutions, but to give such institutions as were represented to be conformable to the wishes of the people.

"In New South Wales, under the Government of Sir John Young, the responsible Ministry would seem to have ceased to be the mere organs of a majority. They have become an object of more than distrust to the democratic leaders. And the ranks of the democratic leaders in the Assembly have been gradually recruited with a type which appears to represent rather the violence of rowdyism than the intelligence of ordinary people, who wish for a representative of their own class in society. The Sydney Morning Herald commences a leading article, with the following description of their 'legislative men:' –

"'There can be no greater reproach to the people than that the men of their choice are the scorn of the world. There is now no part of civilised society, from the Equator to the Poles, where disgust, laughter, and speculation, have not been excited by the conduct of our legislative men. The German, French, and Spanish papers copy the 'proceedings' of our Assembly for the instruction and amusement of their readers. The point of interest is not in our politics – which are too obscure and personal for comprehension – but in our manners.'

"Sir John Young himself has been taking advantage of a social meeting to lecture the people upon the necessity of a reverence for the law, which he tells them has been the chief characteristic of their forefathers.

"'Land for the poor man,' has been the cry with which demagogues have procured votes and obtained power. In New South Wales, as well as in Victoria, the popular leaders have denounced the squatters as enemies of the poor man, because their flocks are the sole occupants of millions of acres; not considering that it would require the population of China to occupy with the plough what is now producing from its natural pasture the staple export of the colony. In New South Wales the Legislative Council have hitherto prevented encroachments on the legal and equitable rights of the squatters. But it seems that the responsible Ministry of Victoria have, by a coup d'etat, issued land orders, which the Legislative Council have by an address to the governor requested him to suspend, until their legality can be tested by an application to the Supreme Court.

"Sir Henry Barkly has answered this address by informing the Council that his Ministry are perfectly satisfied of the legality of their proceedings as well as of their public advantage, and that it would be an improper interference with the principles of responsible government for him to comply with the request of the Council.

"Queensland alone is the happy colony which has escaped a Ministerial crisis during the first two years of its existence. The executive functionaries of that colony were not chosen by a majority of the House of Representatives, but by the Governor, and their measures have been not only conservative, but satisfactory to the people. The people of the new colony of Queensland have benefited by their knowledge of what democracy was doing in the older colonies, and they have hitherto been able to keep to the form of government which is really and truly responsible: a government of law and right; not that of a rabble Ministry representing only the vote of a majority.

14 See the commission and instructions issued to Sir G. Grey, which are given at large in the Appendix.

15 The War in New Zealand. By William Fox. 1860.

16 While these pages are going through the press newspapers have arrived from New Zealand containing the controversy between Sir George Grey and Sir Duncan Cameron, It appears that the resolution of the Weld Ministry to dispense with the services of the regular troops, which gave rise to so much congratulation in the House of Commons, was a mere brutum fulmen – the Governor, at the eleventh hour, having interposed his authority "as an Imperial Officer" to suspend the arrangements of which Sir Duncan Cameron had given notice, for the return of two regiments to England. The inconsistency of carrying war into a new district, while waiting for the Home Government to remove the troops, was perhaps paralleled by the proclamation of peace and amnesty on the 2d of September, followed on the 4th of the same month by a proclamation of martial law in the East Cape District. But these inconsistencies have a significance which is well understood in the colony. In order that the Weld Ministry might hold its ground, it was necessary to conciliate the politicians of Wellington and Taranaki, by an attempt to open a road between the latter place and Wanganui; and to conciliate the politicians of the Southern Island, by an appearance of peace, and of a consequent termination to the expenses of the war.

17 Papers of 7th February, 1865, p. 192.

18 It is stated (in the financial statement quoted in a previous note) at £4 9s. 11d. to 31st March, 1865, but the new duties had not then become available to their full extent; and additional taxation was announced in the shape of a Stamp Act, &c.

19 See, for example, the Petition of 1858 in the Appendix.

20 In the province of Auckland the three first Superintendents, who were elected under the provisions of the Constitution Act successively, resigned the office before the expiry of the period for which they were elected. The term of office is four years: the first Superintendent, the military officer in command of the troops, elected partly because less obnoxious to envy than a colonist, partly from the belief that, having no local interests to serve, he would act impartially, resigned, because of the incompatibility of the office with that of Lieutenant-Governor, which had devolved upon him. The next two, from disgust at the sacrifice of principle which would have been necessary to obtain the support of a majority of the Provincial Council.

21 History of the United States of North America.

22 By a return to the General Assembly, dated 6th September, 1861, it appeared that every twenty-fifth male adult was in receipt of salary from the public, the%verage rate being 154l. per annum. But this was before the introduction of Sir George Grey's "Institutions of Native Government," which were avowedly founded upon the assumption that the restless spirits amongst the colonists were kept quiet by the expenditure of so much money in salaries, and that a similar expenditure amongst the Maories would be cheaper than reducing them to subjection by military operations. The Assembly acceded to this view, and gave the Governor authority to appropriate, at his discretion, 25,000l. a year to give salaries to native assessors, and wardens, and constables; he undertaking to expend, or to procure a remission of the same amount, from Imperial funds. This led to no end of appointments; commissioners and resident magistrates being located all over the colony to instruct the Maories in the business of legislation and magistracy. The result of these measures was foretold by a remarkably active and intelligent native assessor in the Bay of Islands district: – "I wish you," he said, "to remember what I say, for by and by you will see that it is true; the natives are not such fools but they can see that the Governor's plan is to keep all offenders and evil-minded people quiet by paying them money; and as there are many chiefs of more influence than us assessors, who are quite unknown, or at least unnoticed, by the Government, they begin to say they will obstruct the Government in every way, in hope of getting places and money. What can we assessors do? We have no money to pay offenders, and we shall lose all our influence." The last sentence was spoken ironically. He then said, with great seriousness: – "I have always believed that offenders were to be punished by the law, but I see now that the punishment is to be money. Remember what I say, it will all go wrong this new system; there will be a great number of offenders; and as for myself, I think if the Governor gives Potatau (the Maori King) a salary, I will now be able to hold out any longer, but will begin to rob Pakehas myself. What is an assessor's salary to what a great robber would get?" By the latest accounts from New Zealand, it appears that since 1st January, 1864, 201 new offices have been created under the general Government, and £12,000 per annum added to existing salaries.

23 Wi Tamihana to Commissioner Gorst.

PART SECOND. THE LAND QUESTION.

PART SECOND.

THE LAND QUESTION.

IN the preceding notices of the Constitution and political transactions of the New Zealand Colonies, little allusion was made to the land question, the original occasion of all the misgovernment, and the consequent deplorable results which have afflicted those colonies. The subject was thought worthy of a separate treatment. The facts in relation to it are of such a character that they can only be expected to obtain credence, so far as they are proved by public documents of an official and authentic character. If it be impossible to prove that under an upright Administration, which respected law and right, no revolt of the Maories would have been thought of, it is believed that the following narrative will exhibit such a violation of the plainest principles and instincts of justice, on the part of those who were entrusted with the powers of legislation and administration in New Zealand, as to make it appear that, in opposing a Government capable of acting in such a manner, the Maories were actuated by the instinct of self-preservation.

In one of those revelations which it has become the fashion for our statesmen to make at public or social meetings, we were informed by Mr. Chichester Fortescue, M. P., one of the Under-Secretaries of State for the Colonies, that "the war (in New Zealand) has not arisen from any greed or covetousness with respect to land on the part of the colonists of New Zealand, but from the incurable suspicion which unfortunately exists on the part of the native race against the Europeans who have gone to New Zealand. It is very difficult," he says, "to cure such a suspicion as that." From the perusal of the following narrative a judgment may be formed, whether the natives had or had not good grounds for their incurable suspicion.

On the 6th February, 1840, the Treaty of Waitangi was negotiated by Captain Hobson, of the Royal Navy, acting under the instructions of the Marquis of Normanby, Her Majesty's Principal Secretary of State for the Colonies, on the behalf

THE TREATY OF WAITANGI.

of Her Majesty, and the principal chiefs and heads of the powerful tribes of the Ngapuhis, and of other natives in the northern parts of New Zealand, in a public meeting numerously attended by British settlers as well as by Maories. The vast majority of the tribes throughout New Zealand subsequently became parties to the treaty, through the instrumentality of the missionaries settled amongst them, the number of chiefs and heads of tribes who signed it being 582; and it may be truly said that no national question was ever submitted to the suffrages of a people in which so vast a majority of those who were entitled to express those suffrages concurred, the chiefs who signed expressing the decision of their respective tribes.

It was acknowledged by Captain Hobson in letters addressed to the local secretary of the Church of England Missionary Society, and to the late British Resident, respectively, that he was indebted for the success of his mission to their aid and influence with the native chiefs. To the late Rev. Richard Davis Captain Hobson addressed the following letter, dated May 20, 1840: –

Sir, – The period having arrived for proclaiming the sovereign authority of Her Majesty over these islands, it accords no less with my public duty than it gratifies my personal feelings to acknowledge, in the most ample manner, the efficient and valuable support I have received from the resident members of the Church Missionary Society in carrying into effect with the native chiefs the views and objects of Her Majesty's Government. As the official organ of that body, I beg you will accept and convey to every member of the mission in New Zealand my cordial and hearty thanks for the very zealous and effective assistance they have rendered me in the execution of my duty.

(Signed) WILLIAM HOBSON, Lieutenant-Governor.

To Mr. Busby, the late British Resident then at Sydney, Captain Hobson wrote as follows: –

Government House, Russel, Sept. 1, 1840.

Sir, – In acknowledging the receipt of your communication of the 28th July, it affords me much pleasure in being able to bear testimony to the very valuable assistance that I derived from your influence with the native chiefs in enabling me to carry into effect the views of Her Majesty's Government on my arrival in these islands.

I beg further to add that through your disinterested and unbiassed advice and to your personal exertions I may chiefly ascribe the ready adherence of the chiefs and other natives to the treaty of Waitangi; and I feel it but due to you to state that without your aid in furthering the objects of the commission with which I was charged by Her Majesty's Government, I should have experienced

THE TREATY OF WAITANGI.

much difficulty in reconciling the minds of the natives, as well as of the Europeans who have located themselves in these islands, to the changes I contemplated carrying into effect. – I have, &c.,

(Signed) W. HOBSON, Lieutenant-Governor.

It appears of importance to call attention to these letters, because the parties to whom they were addressed were the chief sufferers, as will hereafter appear, under the oppressive measures which inaugurated the establishment of British government in New Zealand, and the treatment they met with first awoke the distrust of the natives. The Treaty of Waitangi has been severely criticised on various grounds. It has been asserted that the chiefs did not possess sufficient intelligence to understand its provisions, and were, moreover, not competent parties to such a contract – as not possessing the rights of sovereignty they professed to convey. On these grounds it was urged by the New Zealand Company that it should be considered in no other light than as "a praiseworthy device to amuse savages for the time." It was alleged that the sovereignty of Great Britain had been proclaimed by Captain Cook, who took possession of the islands in the customary form by right of discovery, and that Governor Macquarie, of New South Wales, had on two occasions exercised the rights of sovereignty by appointing magistrates to keep the peace in New Zealand, as being within his jurisdiction. In reply to these representations, which were urged with great force upon the Government by the New Zealand Company and by petition to Parliament from a number of merchants in London, representing the necessity of maintaining the sovereignty of Great Britain, in order to prevent its being taken possession of by France, Lord John Russell showed "that the British Statute-book has in the present century, in three distinct enactments, declared that New Zealand is not a part of the British dominions; and secondly, that King William IV. made the most public, solemn, and authentic declaration which it was possible to make, that New Zealand was a substantive and independent State." 24 To the suggestion that the treaty, when it proved inconvenient to the New Zealand Company, should be treated as a "mere device to amuse savages for the time," Lord Stanley made the following reply: –

"Lord Stanley is not prepared, as Her Majesty's Secretary

THE TREATY OF WAITANGI

of State, to join with the Company in setting aside the Treaty of Waitangi, after obtaining the advantages guaranteed by it, even though it might be made 'with naked savages,' or though it might 'be treated by lawyers as a praiseworthy device for amusing and pacifying savages for the moment.' Lord Stanley entertains a different view of the respect due to obligations contracted by the Crown of England: and his final answer to the demands of the Company must be that, as long as he has the honour of serving the Crown, he will not admit that any person or any Government acting in the name of Her Majesty can contract a legal, moral, or honorary obligation to despoil others of their lawful and equitable rights."

But while the Government has invariably maintained the validity of the treaty, and the binding character of its provisions, it seems to have been generally taken for granted that it was an injudicious and unnecessary step, that the sovereignty might have been assumed without it, and that its consequences have been injurious. In the celebrated debate on New Zealand, in June 1845, which occupied the House of Commons, to the exclusion of all other business, for three nights, on each night till a very late hour, Sir Robert Peel admitted that, in acknowledging New Zealand as a sovereign and independent State, they were wrong, and that "it would have been much better if we had claimed the right of New Zealand upon the ground of discovery than to hold it by mere cession." "I don't," said he, "hesitate to say that the Treaty of Waitangi has been a most unwise one even for the natives; I think it would have been a much better course for us to have asserted the right of sovereignty on the ground of discovery, than to have accepted that sovereignty from the chiefs, and to have negotiated with them for the sale of the lands." This was the language of Sir R. Peel when pressed by the power of the New Zealand Company, whose influence, under the conduct of Mr. E. G. Wakefield, had become so great as to shake his Administration. But it never appears to have occurred to Sir R. Peel, or to any of the administrators of the Government at home, that something more was necessary than a mere assertion of sovereignty – that the natives were a warlike race, who had never been known to submit to any encroachment on what they considered to be their rights; and that the alternative lay between a voluntary acquiescence in the establishment of the British Government in New Zealand, or its conquest and possession by a military force. With what determination the natives would have resisted the forcible assumption of the sovereignty, may now be understood,

A WISE MEASURE AND ONE OF NECESSITY.

in the light of subsequent events – the rebellion of Heke in the North, the Wairau Massacre, and the war lately raging in the neighbourhood of Auckland, and still continuing to rage in other parts of the North Island.

It has also been maintained, and this was formally insisted upon by the Report of a Committee of the House of Commons in 1844, that "the acknowledgment of a right of property on the part of the natives in all wild land, after the assumption of the sovereignty by Her Majesty, was not essential to the true construction of the treaty." There can be only one true construction of the treaty; namely, the sense in which it was understood by the parties by whom it was negotiated at the time. Now there is not one of the parties to whose influence the Government was indebted for the adhesion of the chiefs, who did not understand that, in guaranteeing the tribal and individual rights of the natives to their possessions, that guarantee extended to the whole territory of the Northern Island, every part of which was claimed by one tribe or another; and that in no other sense would it have been of any avail to propose the treaty to the natives. They would have scouted any proposition of a less extensive character with the utmost indignation. And, knowing their feelings upon the subject, there is probably not one of those who were employed by the Government in the negotiation of the treaty who would have ventured to make any proposition to them inconsistent with a full acknowledgment of the right of the natives to the whole island.

Another exception, but of a different character, has been taken to the wording of the treaty. It has been boldly asserted that the "right of pre-emption" merely secured to the, Queen the first offer, and that if the Queen's agents refused any land upon the terms on which it was offered by the natives, they were entitled, by the terms of the treaty, to sell it to any one else. This doctrine has been maintained by parties who were anxious to obtain land on better terms than by a repurchase from the Government. But the term "pre-emption" was used in its technical sense – the sense in which it has been always used in relation to the aboriginal title to land, both in the British American Colonies and in the United States, and not in the literal sense of its etymology. And this was well understood by the translators of the treaty into the Maori language. The work of translation was not that of one individual, but the joint work of some of the best Maori scholars. It was undertaken with a due sense of its importance; and no Maori would ever understand it in any other sense than as an absolute

CONDITIONS AND OBLIGATIONS

restriction upon the right of sale to any one except the agents of the Queen. Indeed, in the sense contended for, it would have been a mere mockery, as the natives could always have evaded the restriction by making such an offer as it would have been impossible to accept. Another objection, it may be as well to notice here, though it is rather to the terms of purchase than to the conditions of the treaty. It has been urged by very high authorities that the natives are treated with injustice by not receiving the value of their lands in the market; that the agency of the Government ought only to be employed in preventing those disputes, which are the consequence of the want of any law to determine and specify what constitutes tribal or individual title to any particular territory or plot of land.

Now it must be admitted that the natives were not informed that it was intended to make the resale of land purchased from them the means of raising a fund to settle the country with British emigrants. Captain Hobson's explanations were confined to the necessity of creating an authority to control those of the Queen's subjects who were already in New Zealand, or whom she could not prevent from resorting to it, if so disposed. But, on the other hand, it is quite certain that the natives did not expect to obtain higher prices for the land from the Queen's agents than they had been satisfied with obtaining from individuals. On this point there were neither inquiries on the part of the Maories, nor explanations on the part of the Government. It seems to be the natural and just conclusion that they had no right to expect higher prices; and that as they were guaranteed in the possession of the land until satisfied with the price offered, they were under no necessity of taking lower prices than they had been previously satisfied with. On the other hand, if the Government refused to purchase land which was offered at rates similar to those which custom had established, the natives had a right to complain that the Government was not acting up to the spirit and intention of the treaty; and it is ever to be lamented that Captain Hobson should not have represented to the Home Government that the provision of funds to purchase all the lands, as they were offered on such terms, was an obligation binding upon the national faith. To the neglect of this duty is owing one of the first grounds of complaint and suspicion entertained by the natives, and the difficulties which have since proved so formidable, in extinguishing the native title.

There can, therefore, be no grounds for accusing the Government of a violation of the letter or spirit of the treaty in

THE TREATY OF WAITANGI.

extinguishing the aboriginal title to the land on similar terms to those on which the natives had been accustomed to sell to individuals before the date of the treaty, whatever exchangeable value the lands may have acquired by the introduction of law to define and to maintain title according to the institutions of civilised countries. Much less is the Government obnoxious to the charge of injustice on grounds of natural equity. The title to land, which depends upon the power of those who claim it to hold what they claim, is a very different thing from the title to land which is defined by a law declaring in whom it shall vest, and embodying the whole undisputed power of a civilised community in defending and maintaining it as so defined. The law of nations, as expounded by Vattel and other jurists, admits the right of one nation, whose inhabitants are so crowded in their native territory as to press upon the means of subsistence, to take possession of another territory occupied by a nomad race which lives by hunting, upon condition of teaching the hunter the arts of agriculture, and thus enabling him to obtain subsistence independently of the chase. The law of nations is nothing more than the exposition of the law of righteousness, as applied to distinct nations and tribes, in the relations which exist, or may arise, amongst them. And in this particular, it is only an exposition of a higher law – that of the Creator himself, who, when He made man upon the earth, laid upon him the injunction to "increase and multiply and replenish the earth and subdue it." The earth is the universal heritage of man. Such races as have been faithful to the Divine command, having filled the face of the land allotted to them with cities; and fields waving with corn; and pastures covered with flocks; have, therewith, established laws to regulate the title to land amongst its inhabitants, and power to protect them from foreign aggression. But the case of the New Zealanders was widely different. There is every evidence from the time they first became known to civilised nations, that they had been carrying on a war of desolation, tribe exterminating tribe; spreading desolation over the country where God, in His providence, had placed them, instead of fulfilling His divine command to replenish it with inhabitants and to subdue it to their use. On grounds of natural justice, then, and in conformity with the fundamental law of divine origin, the New Zealanders possess no right to exclude the inhabitants of over-peopled countries from taking possession of, and using such parts of, their country – amounting, on a very moderate estimate, to nineteen-twentieths of the whole – which they could

LEGISLATION IN RESPECT OF

not themselves use, or have any prospect of ever requiring to use. Undoubtedly to them the benefit would have been inestimable, of being restricted to the use of a very small portion of their country, with such security for that portion as they never could obtain in their actual condition, even if they should have received no payment whatever for the remainder.

By an Act of Parliament, passed on the 17th August, 1840, Her Majesty was empowered to erect into a separate colony, or colonies, any islands which then were, or thereafter might be, comprised within, and be dependencies of, the colony of New South Wales, and to annex the possessions acquired in New Zealand to that colony, until circumstances should make it expedient to give New Zealand a Government and Legislature of its own.

The first time the Legislature of New South Wales met, after the extension of its jurisdiction to New Zealand, was on the 28th May, 1840, at which session two Acts were passed: the one, declaring that the laws of New South Wales extend to Her Majesty's dominions in New Zealand, and indemnifying certain officers for acts already done; the other, "to empower the Governor of New South Wales to appoint commissioners, with certain powers, to examine into, and report on, claims to grants of land in New Zealand." The former of these Acts excited little interest; the latter, when published as a Bill in the Gazette, previous to its introduction to the Council, excited, not only the alarm, but the astonishment of every one who had acquired landed property in that country, inasmuch as it not only denied their right of property in their possessions, however equitably acquired from the original, rightful, and acknowledged owners, but indicated the determination of the Government virtually to deprive each individual of the most valuable portion of his property – such, for instance, as might be suitable for sites of towns. As this measure of Sir George Gipps, which was subsequently re-enacted in New Zealand, was the root of all the disturbances which have since occurred in that country – the first of a set of public measures which departed successively further and further from the principles of every civilised code of law – it is necessary to examine its provisions with a degree of care which is due as well to the novelty of the subject as a matter of legislation, as to the extent of the interests affected by it, and the disastrous results which followed from it.

The claimants to land in New Zealand, to whom this Act applied, may be considered as belonging to three distinct classes, namely: –

LANDS ACQUIRED BEFORE THE TREATY.

First, The missionary and other settlers in the North.

Secondly, The New Zealand Company and the settlers in Cook's Straits, who had purchased the title to land from the Company before the Company itself had obtained that title; and.

Thirdly, The persons who, in contemplation of New Zealand becoming a British colony, had gone, or sent agents, to different parts of the country to purchase land upon speculation.

The first purchases of land in New Zealand were made by the missionaries of the Church and Wesleyan Missionaries' Societies on behalf of their constituents. The object of these purchases was to secure a right to the land necessary for their establishments – that is, not merely for their houses and gardens, but of extent sufficient to keep at a distance such of their own countrymen as might, by their interference or example, be liable to interrupt or weaken the effect of their labours. These purchases, some of which took place as early as 1815, were of no great extent, but it is remarkable that in no case has their validity been called in question. The prices paid for those portions of land were by no means so trifling as has been represented, when the qualities of the soil were considered. In fact, the joint claims of different families of natives to the same land made it necessary, in order to extinguish those claims, to pay a price beyond its intrinsic value. It was, therefore, by no means the case, as was generally supposed in England, that, with an acknowledged title, "large tracts of land have been acquired by settlers for nominal considerations – a blanket, a hatchet, or a gun; 25 nor, in subsequent cases, were the missionaries and settlers able to obtain from the natives a valid – that is, an undisputed – title, without paying in commodities or in money a fair equivalent for the land. The liberality of the missionaries in their early purchases had established a standard which was subsequently appealed to, and few of the settlers who from time to time had established themselves in the northern part of New Zealand had anything to fear from the result of any investigation to which their titles could be subjected. Many of these, indeed, had been assisted by the missionaries in making their purchases, a duty to which the latter were called not less by the importunity of the natives than by a desire to assist their countrymen. Most

DIFFERENT CLASSES OF PURCHASERS

of the missionaries had at a later date become purchasers of land as a provision for their large families.

Much odium was cast upon the missionaries of the Church Missionary Society for their conduct in these transactions. It was alleged by the agents of the New Zealand Company that they had taken advantage of the confidence reposed in them by the natives to acquire large tracts of land in opposition to the instructions of their constituents. The facts are these: – The Society authorised the expenditure from its funds of 50l. in making a purchase of land as a provision for each missionary's child on arriving at the age of fifteen, at which age the children of the missionaries ceased to obtain support from the Society, This allowance, it was supposed, would purchase 200 acres of land, but the missionaries had no right to consider that they were debarred from purchasing a greater quantity, and, in most places, that sum was an ample payment for land to a much greater extent. Several of the missionaries also made purchases of land for their younger children without waiting till they should have arrived at the age of fifteen. To this course they were urged by the natives, who professed their inability to retain the land for them. It was almost universally the wish of the chiefs that the children of the missionaries should be settled in their neighbourhood in order that the son of the missionary should be the neighbour and friend of the son of the chief; and this advantage, they truly represented, could only be obtained by an immediate purchase, as the majority of the natives were at that time bent upon selling all the land they did not require for themselves as soon as a purchaser could be found. The most extensive transactions of the missionaries, however, were not actual purchases, but conveyances to the Church Missionary Society of large tracts belonging to certain tribes, in joint property, to be held in trust for themselves and their children for ever. Such was the mania for selling land that it was feared some of the tribes would be left without any, and the weaker families were unable to prevent the sale by the more powerful. Amongst the claims put forward by individual missionaries, there were two for tracts of 40,000 and 50,000 acres respectively. But both those claims were acquired under very peculiar circumstances. In the one case the land in question had been for many years a bone of contention between two tribes, those of Waikato and the Thames. The Rev. Henry Williams, when endeavouring to establish peace between those two tribes – was told that there was no hope of peace, because neither party would yield the right of that land to the other. Mr. Williams then said, if that

OF LAND: THE MISSIONARIES.

were the case he would take the land to himself, and neither of them should have it. Both parties seized upon this proposition, and, as Mr. Williams did not want the land for himself, he recommended Mr. Fairburn, who was stationed in that neighbourhood, to take it. Goods to the value of 150l. were given amongst the two tribes, and this standing cause of war was effectually put an end to. The purchaser of this tract of land, on finding that, by the settlement of Auckland some years afterwards, within a distance of twenty miles from it, it was likely to become valuable, voluntarily conveyed one-third to the Church Missionary Society, one-third to the natives, and proposed to retain one-third for himself; but he finally acquiesced in its seizure by the Government, and received a grant from the Crown of 5000 acres.

The other purchase of 50,000 acres was effected in order to enable a tribe who had been expelled from their homes, in the neighbourhood of the North Cape, twenty years before, to return to them. This object was specified in the deed of purchase, and a large portion, amounting to about 100 of that tribe, availed themselves of the privilege thus afforded them. The purchaser, the Rev. Richard Taylor, states that "he shall be satisfied with retaining a sufficient portion for himself to cover his outlay, but he has not selected any as yet." 26

In fifteen other cases of persons then or formerly connected with the Church Missionary Society, which are all that are specified in the returns laid before Parliament, on the motion of Mr. Aglionby and Sir R. H. Inglis on 22d April, 1845, the aggregate claims amount to 58,984 acres. Of these fifteen persons, twelve had eighty-eight children, and each of the other three had children also, although their number was not ascertained. These fifteen cases comprise all the most extensive purchases made by persons connected with the Church Missionary Society, exclusively of the two particularly referred to above. And the land purchased appears to amount to considerably less than one square mile for each child; whereas the Government of New South Wales was, about the time these purchases were made, in the habit of making a free grant to each daughter of a clergyman of two square miles, and to each son of three square miles, as a means of settling them in life, in a colony where such a provision was much less indispensable than in New Zealand. Moreover, the recipients of the bounty of the Crown in New South Wales were allowed to select their

NEW ZEALAND COMPANY'S CLAIMS.

grants from many millions of acres; whereas the New Zealanders never would sell their best land. It is probable that of the 58,984 acres, not more than 10,000 acres is of any value for cultivation; and even for cattle runs the whole is of exceeding little value when compared with the pastures of New South Wales, being covered with fern and scrub instead of grass.

The claims of the New Zealand Company, and their settlers in the South, were of a very opposite character. That Company, assuming that the natives would, as a matter of course, agree to part with whatever territories they required, had made very extensive sales in England of such lands as they expected to acquire; but, on the attempt of the settlers to take possession, it was found that the agents of the Company had altogether mistaken the nature of Maori title. An agent of that Company stated in evidence, before a Committee of the House of Commons, that their purchases extended to 20 millions of acres; and it appears from the details of their expenditure, furnished by the same witness, that the price was something less than one farthing per acre. 27 These claims were repudiated by the great majority of the natives, who knew or understood nothing of them, and the persistence of the Company's agents and settlers in asserting them led to the fearful catastrophe in which so many perished at Wairau.

The third class of claimants, those who had proceeded from the neighbouring colonies to make purchases of land to which it was expected that the establishment of British government would give a value, had resorted to similar modes of acquiring a title to those adopted by the agents of the New Zealand Company. Their title-deeds were generally drawn in English by a Sydney lawyer. It may be doubted whether, in any case, the natives understood the nature of the contracts into which they were supposed to have entered; and in few cases were the titles, such as they were, obtained from all the parties whose consent was necessary to give validity to the deed, even had its full purport been understood. It happened, accordingly, that claims were put in for extensive territories with no better title than the purchaser of a house in London could show to the whole parish where it was situated.

By a charter, dated November 16, 1840, the Islands of New Zealand were erected into a colony, and a Legislative Council was appointed, consisting of seven persons – viz., the Governor, three of his public functionaries, and three persons selected by the Governor from amongst the settlers.

CHARTER OF 1840.

In Lord John Russell's despatch to Captain Hobson, the first Governor, transmitting the charter, he gives him instructions with respect to legislation in the following words: – "Proceeding upon the well-established principle of law, that Her Majesty's subjects, settled in a country acquired as New Zealand has been acquired, carry with them, as their birth-right, so much of the law of England as is applicable to their altered circumstances; that fundamental rule has been qualified in the infancy of the colony, by constituting a Legislature, nominated by the Crown, in New Zealand, as in other Australian colonies. 28 The legislative power, thus concentrated in few hands, imposes on those who hold it the duty of exercising it with constant regard to the principles of justice and to the welfare of the colony;" and Lord John Russell further reminds the Governor, amongst other suitable admonitions, "that the responsibility of Her Majesty's Government is peculiarly grave in assenting to laws enacted in a colony in which there is no representation of the people. 29

The charter provides that "it shall be lawful for such Legislative Council to make and ordain all such laws and ordinances as may be required for the peace, order, and good government of any such colony as aforesaid, for which such Legislative Council may be so appointed; and that in the making of all such laws and ordinances the said Legislative Council shall conform to and observe all such instructions as we, with the advice of our Privy Council, shall from time to time make for their guidance therein, PROVIDED ALWAYS THAT NO SUCH INSTRUCTIONS, AND THAT NO SUCH LAWS OR ORDINANCES, AS AFORESAID, SHALL BE REPUGNANT TO THE LAW OF ENGLAND, but consistent therewith, so far as the circumstances of any such colony may admit." The common law of England, and such statutes as had been enacted previous to its establishment, are in force in every colony of British settlement; and it is to these, so far as they regard the principles of law, that the proviso of repugnancy applies. The laws not "applicable to their altered circumstances are of various kinds – they consist of laws of administration relating to the revenues, or to institutions which do not exist in the colonies; to laws having local application only, such as the law of gavel-kind; to the ecclesiastical laws of England, which do not extend to all parts of the United

FIRST ORDINANCES OF THE LEGISLATURE

Kingdom; and to others which, for like reasons, are incapable of application in a colonial community.

That the fundamental laws of the realm relating to the protection of life, liberty, and property have force in all the colonies of British settlement, and that no subordinate Legislature has power to set them aside even under charters and constitutions which contain no proviso against the enactment of statutes repugnant to the law of England, has been established by a continued stream of decisions of the Superior Courts in England from the time of Lord Mansfield, in Campbell v. Hall (Cowp., 204), to the latest decisions of the Judicial Committee of the Privy Council; and yet the very second ordinance of the Legislative Council of New Zealand is as flagrant a violation of the 29th chapter of Magna Charta as it is possible to conceive. The second clause of that ordinance (the "Land Claims Ordinance," No. 2, of session 1) enacts – "That all titles to land in the said colony of New Zealand which are held or claimed by virtue of purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, leases or pretended leases, agreements, or other titles, either mediately or immediately, from the chiefs or other individuals, or individual of the aboriginal tribes inhabiting the said colony, and which are not, or may not hereafter, be allowed by Her Majesty, her heirs and successors, are, and the same shall be, absolutely null and void." 30 It is evident that this is a judicial decision rather than an enactment of law, and the Legislative Council had no judicial functions or authority to declare laws any more than to set aside the law of England. 31

In further provisions of the ordinance, an arbitrary scale is laid down for the guidance of the commissioners who were to be appointed to investigate titles, by which they were bound to recommend grants in proportion to certain prices per acre, varying with the dates at which the purchases were made, without any reference to the quality or value of the land; but they might recommend larger grants than the scale specified, if authorised thereto by the Governor and Executive Council of the colony.

To make this ordinance effectual in dispossessing parties of land for which a Crown title was refused, another ordinance, "The Native Land Purchase Ordinance," was passed, which

A VIOLATION OF THE CHARTER.

contained the following provision: – "If any person, who shall not hold a license from the Government for that purpose, shall, after the passing of this ordinance, be found using or occupying any land not comprised within a grant from the Crown, either by depasturing any sheep or cattle thereon, or by residing thereon, or by erecting any house or building thereon, or by clearing, enclosing, or cultivating any portion thereof, or who shall be found, without such license aforesaid, to have cut timber or other trees thereon, or to have gotten any mineral therefrom, – every such person shall, upon conviction of any of the offences hereinbefore mentioned, forfeit and pay any sum not less than five pounds nor more than one hundred pounds, to be recovered in a summary way;" and a like penalty was provided for any act of ownership occurring after one month from a previous conviction.

In the instructions conveyed to Captain Hobson, when proceeding as Consul to New Zealand, by the Marquis of Normanby, Her Majesty's Principal Secretary of State for the Colonies, it is stated that the "title (of the aborigines)" to the soil and sovereignty of New Zealand is indisputable, and has been solemnly recognised by the British Government." 32 On the recognition of this title he was instructed to negotiate with the chiefs and people for a cession of their sovereign rights to the Queen of England, as well as of the right of pre-emption to the soil. "It is not, however," (says Lord Normanby) "to the mere recognition of the sovereign authority of the Queen that your endeavours are to be confined or your negotiations directed. It is further necessary that the chiefs should be induced, if possible, to contract with you, as representing Her Majesty, that henceforward no lands shall be ceded, either gratuitously or otherwise, except to the Crown of Great Britain."

With respect to the lands which had been already ceded to individual subjects of the Queen, he was thus instructed: – "You will, therefore, immediately on your arrival announce, by a proclamation addressed to all the Queen's subjects in New Zealand, that Her Majesty will not acknowledge as valid any title to land which either has been, or shall hereafter be acquired in that country, which is not either derived from, or confirmed by, a grant to be made in Her Majesty's name and on her behalf; you will, however, at the same time, take care to dispel any apprehensions which may be created in the minds of the settlers that it is intended to dispossess the owners of any pro-

CONFISCATION OF THE SETTLERS' LANDS NOT

perty which has been acquired on equitable conditions, and. which is not upon a scale which must be prejudicial to the latent interests of the community." 33

It is clear that these instructions contain a complete recognition of title in the aborigines; and, indeed, this recognition had previously been made on the much higher authority of several Acts of the British Parliament, and of various State papers, as shown at length in a Memorandum of Lord John Russell, printed at page 69 of the same series of Parliamentary papers. It also recognises the title of those British subjects who were "owners of any property which has been acquired on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community." Provision was then to be made by a Legislative Commission for the investigation of the conditions upon which lands had been purchased from the natives, and, on the report of this Commission, the Governor was, in each case, to decide which purchases were to be recognised by a confirmatory grant, and on what conditions. In another part of the Parliamentary papers there is an indication of the course which was contemplated by the British Government in relation to purchases that might be considered to be "upon a scale which must be prejudicial to the latent interests of the community." In writing to William Hutt, Esq., M. P., Mr. Labouchere, Under-Secretary for the Colonies, states that: – "Lord Normanby wishes it to be further understood that no pledge can be given for the future recognition by Her Majesty of any proprietary titles to land within New Zealand which the (New Zealand) Company, or any other persons, may obtain by grant or by purchase from the natives. On the contrary, with a view to the protection of the interests of the aborigines, as well as to the future prosperity of any colony which may be established in New Zealand, it is probable that application to Parliament may hereafter become necessary to provide for the investment in the Crown of any proprietary rights which may thus be acquired by private parties, with such equitable compensations to them as, under all the circumstances of the case, may appear expedient." 34

According to the constitutional law of England, the power to interfere with private rights of property o]therwise than by the settlement of contested rights by due course of law belongs to Parliament alone; and such interference never takes place unless for the furtherance of some object of public necessity,

JUSTIFIED BY MUNICIPAL OR INTERNATIONAL LAW.

or of the utmost public importance, and then only consequent upon full compensation to the parties whose interests are affected, according to the judgment of an impartial tribunal.

Nor will the least justification for such an interference with private rights be afforded by the principles of international law. In the case of the Mayor of Lyons v. the East India Company, Lord Brougham, in delivering the judgment of the Court, stated that: – "All the authorities lay it down that upon a conquest the inhabitants, ante nati as well as post nati, of the conquered country become denizens of the conquered country, and to maintain that the conquered people become aliens to their new Sovereign upon his accession to the dominion over them, appears extremely absurd." (Moore's P. C. C., I. 287.) And if so in the case of foreigners in a conquered country, how ineffably absurd would it be to maintain that a citizen of the country which acquired a new dominion, not by conquest, but by treaty of cession, should be deprived of the rights and privileges which he holds by virtue of his double citizenship, being a natural born subject of the one, and, as holding land, a naturalised subject of the other, in respect to the privilege of holding it.

From time immemorial the British Government has recognised the right of a British subject to hold lands in a foreign country, and the Courts of Equity will receive and maintain Bills for the specific performance of contracts touching the same, where both parties are British subjects. (Angus v. Angus, West's Rep. temp., Hardwicke 23; Lord Cranstown v. Johnston, 3 Vesey, 170; Story Eq. Jur., s. 744, 1296.) "Every nation that governs itself under what form soever without dependence on any foreign Power is a Sovereign State." (Vattel 2.) "A nation has the power of granting or refusing foreigners the right of possessing lands or other immovable property within its territory" (Ibid, 176); "and no other nation has a right to dictate to it in such matters. (Ibid, lxii.) All these rights were admitted by the British Government as existing in the tribes of New Zealand, and made the grounds of the treaty by which its sovereignty was ceded to the Queen of England.

But the parties whose interests were affected in New Zealand were distant and weak; their legal rights were trampled upon by what may be termed a desecration of the sacred functions of legislation in disregard, not only of the law, but of the pledge

given in Her Majesty's name, that "it was not intended to dispossess the owners of any property which has been acquired

CONFISCATION OF THE SETTLERS' LANDS

on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community." Under the provisions of the "Land Claims Act," the party whose titles were examined the second in order by the Commissioners received notice, as soon as it was reported to the Governor, that the title to a piece of land of about 300 acres in extent, on which the owner had lived for upwards of seven years, had been acquired on equitable conditions, "that the greater part of it would be required to be reserved for a public township." For it was only in due consistency with other parts of these proceedings that the proof of an equitable and undisputed title was made the ground-work and justification for its confiscation. This party was some time afterwards visited by an old chief of Heke's tribe, from whom the land was purchased, and told not to allow himself to be disturbed, when this Marangai (a stormy wind) proceeded forth from the Governor, for they who sold him the land would maintain him in possession of it.

Then, as regards the equity of such titles, history informs us that the land subsequently constituting one of the United States of America was purchased from the Indians for "a pair of trousers and a soldier's old coat" – and Lord John Russell, in speaking in the House of Commons in relation to the lands purchased by British settlers in New Zealand, said that he would not give back the blanket or the hatchet with which the land was purchased, but would give each settler a liberal grant out of the land he had purchased. Such were the ideas entertained by the Government at home respecting the purchases of land made by British subjects in New Zealand. In the great debate on New Zealand in June, 1845, Mr. G. W. Hope, Under-Secretary for the Colonies, stated that "as early as 1836 there were 2000 British settlers in New Zealand who had obtained their lands entirely by purchase from the natives. So far, therefore, from the natives not having been in the habit of making sales of land, the number of settlers he had mentioned had established themselves by purchase. It appeared by the papers before the House that from 750 to 1000 claims were made by such settlers, extending to many thousand acres of land; and it was a very remarkable fact that out of that large number of claimants whose cases were inquired into by a properly-constituted tribunal the claims of only seven or eight were disputed." 35 A still more honourable testimony is borne to the

REVOLTING TO THE NATIVES.

uprightness of the natives in these transactions in a letter addressed by the Commissioners to the Colonial Secretary of New Zealand, dated Auckland, 4th May, 1843: – "In reply (say the Commissioners) to the Memorandum of his Excellency the officer administering the Government addressed to us this day, demanding 'if the conduct of natives in the investigation of land claims has caused a great alienation of feeling between the parties, and a disposition in some cases has been manifested to get returned to them lands which they formerly sold,' we have the honour to report that we have now examined more than half of all the claims, yet have never remarked such a consequence in any of our investigations...... We have examined some natives more than ordinarily dissipated and corrupted by habits of intoxication, still even these never made any unjust attempt to repossess themselves of their lands: witness the examination of Pomare upon the sale of Russel, which took place a year after its purchase from Mr. Clendon by the Government, and was well known by Pomare to have then become of a vastly-increased value." 36 It must be observed that the claims referred to by the Commissioners Godfrey and Richmond in this letter were almost exclusively those of the settlers in the north of the Northern Island, who, following the example of the missionaries, had dealt with the natives on terms of fairness and reciprocity. How erroneous were the ideas indicated by Lord John Russell as to the prices paid for those lands will appear by the report of a subsequent Land Claims Commissioner, dated 8th July, 1862. It is therein stated that "the whole amount of money or money's worth which their purchases cost the claimants was, in round numbers, 131,000l; the total area of their claims was 474,000 acres. Looking, therefore, at the transaction in the gross, it may be said that the land cost the claimants 5s. 6d. per acre. 37 So different were the facts to the assumption of Lord John Russell that estates were purchased for a hatchet or a blanket. This sum of 131,000l., or 5s. 6d. an acre, included the fees paid to the Commissioners and the expense of surveying the land, but did not include the expenses the settlers were put to in bringing forward the native witnesses to give evidence before the Commissioners. In another part of the same report the Commissioner states that "in the return will be found the acreage awarded or granted in each case. This, including the survey

POSSESSION OF LAND A TITLE

allowances granted under the Act, amounts in the whole to 292,475 acres, and will probably reach the total quantity of about 315,000 acres if no alteration be made in the principles of the existing Acts." 38 "It will be seen that the total number of acres reverting to the Crown upon the settlement of the land claims is 204,243, of which the greater portion is situated in the vicinity of the Bay of Islands." 39

There are two prejudices of a kind very opposite to each Other, one or other of which is apt to possess the minds of men who are the subjects of civilised States in which the municipal laws have from a remote period established and defined the rights of property. The one is that, as the rights of property are the creation of law, there can be no rights where there are no laws to define them; the other is that existing law, which took its peculiar form from circumstances existing at the time of its enactment, is applicable in all its details and peculiarities to circumstances essentially different. But the conduct of the Maories gives evidence of the existence of a certain innate sense of right and obligation in relation to the possession of land similar to what we find in the earliest records of the human race, which, in the one case as well as in the other, were antecedent to the existence of any laws promulgated by human authority. It has been seen how the Northern chiefs maintained the obligation to admit the rights of possession they had conveyed by voluntary sale; and Rauparaha, the powerful chief of Cook's Straits, though, like the rest, willing to make sale of such lands as the natives did not wish to retain for themselves, expressed his determination to maintain possession of what they had not sold and did not intend to sell until he should have brought the question to issue by a trial of strength. In reference to an expected arrival of soldiers at Port Nicholson, he said – "You need not take the trouble to send up here for us. If you will only send (the information) I will come down to Port Nicholson with 1000 Maories, and have a fight with the white men. If they beat us they shall have New Zealand and we will be their slaves; but, if we beat them, they must stand clear." Though Abraham was rich in cattle and moveable property and in servants, he was only a sojourner in the land which was promised to his posterity; and though Abimelech, the King of Gerar, was so afraid of him that he prayed that there might be a covenant between them binding Abraham to deal faithfully

ANTECEDENT TO THE EXISTENCE OF LAW.

with his children, yet Abraham does not appear to have claimed the possession of a single spot of land.

A remarkable instance is here furnished at once of the recognition of the right of possession as existing in those who were in possession, and also of another right derived from the incorporation of labour with the land. While Abimelech sought to make a treaty of peace and alliance with Abraham, "Abraham reproved Abimelech because of a well of water which Abimelech's servants had violently taken away." But while he claimed the right to the water, he set apart seven ewe lambs, and he said to Abimelech, "For these seven ewe lambs shalt thou take of my hand that they may be a witness unto me that I have digged this well." When Sarah died at Hebron in the land of Canaan, "Abraham stood up from before his dead and spake unto the sons of Heth, saying, 'I am a stranger and a sojourner with you, give me a possession of a burying-place with you, that I may bury my dead out of my sight.' And the children of Heth answered Abraham, saying unto him, 'Hear us, my lord; thou art a mighty Prince among us; in the choice of our sepulchres bury thy dead; none of us shall withhold from thee his sepulchre that thou mayest bury thy dead.'" But Abraham was not satisfied with this general permission, nor would he accept as a gift "the field of Macphelah and the cave that is therein, which he desired to purchase" from Ephron the Hittite. " Nay, my lord (said Ephron), hear me, the field give I thee, and the cave that is therein, in the presence of the sons of my people give I it thee, bury thy dead. " But Abraham insisted upon making good his possession by paying the price which Ephron said it was worth – " four hundred shekels of silver, current money with the merchant. And the field of Ephron which was in Macphelah, which was before Mamre, the field, and the cave which was therein, and all the trees that were in the field, that were in all the borders round about were made sure unto Abraham for a possession in the presence of the children of Heth, before all that went in at the gate of the city." The title thus obtained seems to have been respected after the descendants of Abraham had abandoned the land of Canaan; for Jacob, when dying, charged his children to bury him in the cave with his fathers, reciting to them the terms of purchase from the children of Heth: and "his sons carried him into the land of Canaan, and buried him in the cave of the field of Macphelah" – nearly 200 years subsequent to the time of the purchase. In after years, when the descendants of Abraham were in full possession of the land

SECURITY OF TITLES GRANTED

which had been promised them, there is an instructive controversy recorded as to the right of possession: – "The children of Israel did evil again in the sight of the Lord, and he sold them into the hands of the Philistines and into the hands of the children of Ammon, and the children of Ammon were gathered together and encamped in Gilead. And Jepthah sent messengers unto the King of the children of Ammon, saying, 'What hast thou to do with me that thou are come against me to fight in my land?' And the King of the children of Ammon answered unto the messengers of Jepthah, 'Because Israel took away my land when they came out of Egypt from Amon, even unto Jabbok, and unto Jordan, and now, therefore, restore those lands again peaceably.'" In answer to this request, Jepthah recited the progress of the Israelites, showing that, as Sihon, King of the Amorites, would not allow them to pass through his land, but "gathered together all his people, and pitched in Jabez, and fought against Israel, and the Lord God of Israel delivered Sihon and all his people into the hand of Israel, and they smote them; so Israel possessed all the land of the Amorites, the inhabitants of that country." "While Israel dwelt in Heshbon and her towns, and in Aroer and her towns, and in all the cities that be along by the coasts of Arnon, three hundred years? why, therefore, did ye not recover them within that time? Wherefore I have not sinned against thee, but thou doest wrong to war against me; the Lord, the judge, be judge this day between the children of Israel and the children of Ammon. Howbeit, the King of the children of Ammon hearkened not unto the words of Jepthah which he sent him."

These instances are illustrations of the natural right of possession, and the obligation to respect that right, both as regards the rights of individuals and the rights of communities, before there was either municipal or international law to define the one or illustrate the other.

The Bay of Islands district was first settled by missionaries of the Church Missionary Society, who had numerous families, for the members of which they purchased portions of land as the only provision it was possible to make for their settlement in life. By their assistance, and by the assistance of the British Resident who was stationed there, and whose instructions required him to give encouragement and protection to the well-disposed British settlers, 40 many of the other settlers were aided in making their purchases. The honesty and straightforward-

AND ACKNOWLEDGED BY THE NATIVES.

ness with which the natives almost universally acknowledged and maintained their contracts is one of the most remarkable facts in the history of newly-settled countries; and in proportion to this honesty were the proceedings of the Government revolting to them. They resented the cross-questioning to which the Commissioners, on the examination of the first cases, were disposed to resort, assuring them that there was no fraud in the transactions, and that all parties were satisfied with them. Before New Zealand was erected into a separate colony it had been, as before stated, attached as a dependency to New South Wales, and the first "Land Claims Bill" had been passed by the Legislature of that colony. It appeared that when that bill was before the Council in Sydney, and while the late British Resident and other parties interested in New Zealand were being heard at the bar of the Council against the provisions of the bill, as being certain to destroy the confidence of the natives in the uprightness of the British Government, and thereby put an end to the only means of maintaining peace in that country for many years to come, a native of New Zealand had been introduced into the gallery of the Council-chamber. On his return to Hokianga, his native place, which lies on the west coast of the Northern Island, opposite to the Bay of Islands, and where between 100 and 200 British settlers at that time resided, he raised the indignation of his countrymen to the highest pitch by a description of what he had witnessed. A deputation, most of the natives who composed it being converts to Christianity, visited the late Rev. Richard Davis, whose station lay nearest to them, and conjured him to tell them the truth. "Was it true that certain men sitting in a room at Sydney were planning to take possession of their lands?" To this Mr. Davis was able to say that he believed there was no such intention. They then asked if it was not true that it was proposed to deprive the settlers of the land sold to them? To this question it was impossible for Mr. Davis to reply in the negative. He told them he believed that was to a certain extent true. "And is it supposed," they said, "that we are such fools as to believe that if the Queen treats her own children in this way she will show more regard to the Maori men, when she is strong enough to take their lands!" Mr. Davis was forced to listen to the expression of a suspicion that in advising them to agree to the treaty of Waitangi, the missionaries had acted a treacherous part, and to a threat that, if it should prove so, they would be the first to feel their vengeance. At the time when the treaty of Waitangi was made, such was the confidence of

EVIDENCES OF THE SUSPICION CREATED

the Maories in the honour of the Queen of England and her functionaries that they might have been led like a flock of sheep by the hand of an upright and judicious governor. But this confidence had now given way to that distrust of the intentions of the Government with respect to their land, which broke forth in Heke's rebellion in 1845, and which subsequent proceedings of a like nature rooted and confirmed in their minds, till it became that "incurable suspicion," to which Mr. Fortescue, the Under-Secretary of the Colonies, on a late occasion rightly attributed the war – a suspicion which, he truly said, "it was very difficult to cure" – a suspicion which all the favours and indulgences heaped upon the Maories, and especially those of Waikato; the ploughs which were given to them to lead them to adopt a better system of cultivating the land; the seed to sow it; the mills to grind their wheat; the millwrights and blacksmiths salaried to assist and guide them; the money to buy vessels; the schools established for their children; and, above all, the devoted ministration of Christian ministers, was unable to prevent breaking out, a second time, into rebellion. The history of the world presents no similar instance of a barbaric people so cherished and petted by a superior race; and yet the conduct of that Government to the Queen's natural born subjects inspired that people with a determination to shake off its dominion, even at the sacrifice of half their race.

It was not at the Bay of Islands alone that the proceedings of Sir George Gipps and his Council created distrust. In the papers laid before Parliament on the 12th August, 1842, there is a long report from the Protector of Aborigines, of his visit to the Thames and Waikato, on which he set out about six months after the passing of Sir George Gipps' bill confiscating the land of the settlers. He says –

41 "On the 10th December I embarked in the Victoria brig, proceeding to the Thames, for the purpose of visiting the chiefs of that district, and as far as possible to counteract the ill feelings of the natives towards the Government, arising from their natural jealousy, and strengthened and encouraged by designing men; to describe the state of the country through which I might pass; and to treat with the natives for such portions of their land as they may be disposed to part with, and can conveniently spare." These were the objects for which the journey was undertaken. A few further extracts will illustrate the state of mind in which, with one or two exceptions, he found the natives throughout his journey, which occupied a month.

BY THE MEASURES OF THE GOVERNMENT.

"The natives of Wakatiwai, and indeed all the places where we stopped, had much to say as to the probable intentions of Government towards them. They observed they were to be put down, but the Governor and the Europeans were to be exalted."

To his assurances that "their advisers had misrepresented the object of Government, one of the chiefs replied that the Governor's book was very good, likewise his talk (korero), but they should watch his actions with some jealousy. Another chief objected to their present position, because, he said, that however good our present Governor might be, he had heard that in a few years they might expect another, who, perhaps, would not be so well disposed towards them; and then, turning quickly round to me, he said, 'What has that other man on the other side of the water to do with us? (meaning His Excellency Sir George Gipps). They had never seen him, nor he them, neither had he visited their country, yet they had been given to understand that he and his Committee (meaning members of Council) were about taking their land from them' (meaning probably legislating for them), p. 94.

"I visited the chiefs at Kaweranga to correct the information generally in circulation amongst them, that the plans of Government are inimical to the welfare of the natives, and will ultimately prove the means of their destruction. This principle seems deeply rooted and widely disseminated around, and time only will eradicate the feeling, the New Zealanders being a people who will be better convinced by practical illustrations of the intentions of Government than by lengthened discussions. I have the promise from most of the chiefs that they will visit His Excellency when he is finally settled in Auckland."

At Maungatautari, in the Waikato country, "a large native residence, where there are several strong native pahs," he says: – "The natives of this place are most of them professed Christians, and, from a formidable warlike people, have now become an industrious, peaceable community; most of them can read and write. They were not unacquainted with the general reports in circulation, but were less clamorous than many of the natives we had met with: they were not, however, without their misgivings, and were very inquisitive as to the ultimate intentions of the Queen respecting their country. They had hitherto, they said, been guided by missionaries, and should continue to be so until they had reason to believe they had been misled by them; then they would consider them as the authors of their misfortunes, and accountable for all consequences. They inquired after Kihi, the native who is in prison at Russel; some

PROTECTOR OF ABORIGINES' REPORT

of them were relations. All said his sentence was just: a murderer ought not to go unpunished.

"At Otawao I endeavoured to appease the minds of the natives, who were evidently a good deal excited, and assured them that the Governor had given publicity to his intentions at all public meetings, in the circular, and in the treaty itself; and that one especial object was the protection of the natives. One fellow artfully replied, 'Does he (Sir George Gipps) love us more than his own countrymen? observing that if Europeans' land was to be taken from them, was theirs only to be saved?" In their present excited state I found it imprudent to say anything to them about purchasing land; but inquired what purchases had been made by Europeans, and learned that nothing had been sold save a few hundred acres to a man by the name of Turner, who has been living some years with a native wife at Waipa. I inquired how and where they had got their information respecting what was doing on the other side of the water; they told me it was from Europeans, and from Rewa, and that they were advised by him not to sell their land to the Government. 42

"At Pukatia I had a grand meeting with the natives, who beset me on every side calling for explanations. A Mr. Marshall had assured them that they and their country were sold to the Government. They did not like the treachery of the British Government. If they wished to take their country, why not do it openly? They would then know how to act; but for the paltry consideration of thirteen blankets (alluding to a present of thirteen blankets sent by His Excellency at the time they signed the treaty) had they been betrayed to sell their country. ......We would rather die fighting than be made slaves, or suffer our country to be taken from us; we fear nothing so much as treachery and slavery." The Protector's concluding advice is not without a spice of naivete. He said "Mr. Maunsell had never intended the blankets otherwise than as presents to the chiefs; at any rate, sit quietly until you see your land taken, and your fathers and your children killed, then you will have cause for complaint. With this we hardly quieted the natives (strange if you had) who, although so late, wanted to have more korero."

ON THE SUSPICIONS OF THE NATIVES.

Such were amongst the first fruits of the illegal ordinance of confiscation, amongst a people of whom the Protector says, before concluding his report: – "The rapid advancement the natives are making in civilisation will appear not only from the extent of their cultivations, but from the fact that there was scarcely a village through which we passed that had not its village school and chapel, and in every place the sanctity of the Sabbath strictly observed."

But in the North the suspicion of injustice had taken the form of conviction. Some time after the massacre of the crew of the British ship Boyd at Wangaroa in the year 1809; the inhabitants of that district had been driven out by the Ngapuhis, under the leadership of the famous Hongi-ika, who had ever since occupied the surrounding country. Portions of the forests bordering on the harbours of Wangaroa and Mongonui had been sold by them to various Europeans, who were employed in cutting the timber. About the time of the Treaty of Waitangi Nopera (or Noble) Panekareau, the chief of the Rarawa tribe, which had been driven out by the Ngapuhis, began to think his tribe were in a condition to recover their former possessions. But instead of attempting this by force of arms, he represented to the Protector of Aborigines that his people, and not the Ngapuhis, were the rightful proprietors of the district. Instead of telling Nopera that those tribes only could be recognised as the owners of the land who were in possession – the only principle which could apply to the case – a fundamental principle in international law, and a principle well understood by the natives themselves – the Protector recognised the right, and offered Nopera 100l. to transfer it to the Government. Nopera accepted the money. Porirua, the chief of the Ngapuhis, was at the same time offered 1001. for what remained unsold by him to the settlers in the district of Mongonui. Immediately after these transactions, on the 24th June, 1840, a proclamation was issued in the following terms: – "The Lieutenant-Governor desires it to be notified that the lands of Mongonui have been purchased for Her Majesty the Queen; and he therefore cautions the public against building, cutting timber, or trespassing thereon. Those persons who may have established themselves on these lands, either by building or enclosing grounds for cultivation, will be permitted to hold such tenements or lands undisturbed until the Commission to be hereafter appointed shall decide upon the rights of the respective parties." A more ill-omened proceeding could not have been contrived. The lands in question were chiefly possessed or occupied by persons who employed

REPORTS OF THE COMMISSIONER

themselves in felling the timber and preparing it for the market, and most of them were closely connected with the chiefs and people of the place, being married to or having children by their daughters, and employing them in carrying on their trade. The natives now fully understood what was meant by confiscation. They had no conception of a Government representing in the abstract the interests of the community: they looked upon the Governor and his subordinates as individuals, and no reasoning could convince them that individuals who were capable of acting in this manner were worthy of confidence.

It was not till January, 1843, that the Commissioners opened their Court at Mongonui to investigate the titles which had been thus dealt with, and the following is the report made by the Commissioner on the occasion: –

"Mongonui, 15th January, 1843.
"To the Honourable the Colonial Secretary.

"Sir, – I have the honour to acquaint you, for the information of His Excellency, the officer administering the Government, that on my arrival here on the 6th inst., to investigate the claims to grants of land in this neighbourhood, I found the native chief Nopera, with upwards of 250 of his tribe, awaiting my arrival, in order to dispute and resist all the purchases or pretended purchases in or about Doubtless Bay that were not derived from him.

"Porirua established himself here with his tribe two days afterwards, supported by the Wangaroa natives under Ururoa. Upon my opening the Court and commencing the examination of certain sales of land made by Porirua (or Warekauri) and others, Nopera entered and declared as follows: –

"Firstly, He opposes all the purchases of lands not made from himself at Mongonui.

"Secondly, That he had a priority of right over all the land in the neighbourhood of Doubtless Bay, and denies the right of any other party to sell any land there without his sanction and ratification, which, however, had not been obtained in any case except in Captain Butler's purchase, which consequently was the only one he would allow of.

"Thirdly, That he considers the trifling property and cash given to him in 1840 (to the amount of 100l.) by the Government for the lands in Doubtless Bay was only an earnest of what he was to receive for these lands, Porirua having received as much, although he had disposed of his rights to, and had received payment from, the settlers. This purchase by the

OF LAND CLAIMS.

Government not having been completed according to his view of the matter, he thinks that the amount he has already received is only a fair equivalent for the feast given by him at Kaitaia upon the late Governor's arrival there.

"Fourthly, He (Nopera) promises that the settlers at Mongonui shall remain unmolested, and be permitted to occupy 'the spots they reside on, with any cultivation attached,' until the whole of the matter be arranged; and this license he considers an ample compensation to Porirua, &c., for any rights they may have had to the lands.

"Fifthly, That he would not now relinquish his right over these lands, either to the settlers or to the Government, for any consideration that could be offered, but that he will maintain his right to the lands vi et armis.

"The adverse tribes have opposed the sales made by Nopera to Mr. Ford and Mr. Taylor, and with more show of justice, because these lands have been their dwelling places for very many years.

"I proposed divers modes of arranging their differences to these chiefs, but without effect, Nopera being the most determined in resistance. He considers that the offer (as he calls it) of the Government in 1840 to purchase his rights over the heads of Europeans already settled upon these lands was an absolute confirmation and admission of his title.

"The two parties mustered upwards of 400 fighting men, were fully armed with abundance of ammunition, and their muskets loaded with ball cartridge. Each party danced the war dance, and was harangued by their respective chiefs; and at one time it appeared very probable that they would have come to blows before me.

"I have frequently visited Nopera since, in the hope of finding him in a more tractable disposition, but hitherto he has not given way in the least.

"I intend to proceed to Kaitaia in a few days to investigate the claims not disputed by these parties there, and shall endeavour to bring Nopera to terms during my stay there, but my hopes of being successful are very faint. – I have, &c.,

(Signed) "EDWARD L. GODFREY,
Commissioner." 43

A month later the Commissioner writes from Kaitaia: – "Immediately after my arrival at Kaitaia all Nopera's tribes

RESISTANCE OF THE NATIVES TO

assembled there in considerable numbers; and in a public conference many violent and seditious speeches were made by Nopera and other chiefs. In these harangues they declared –

"1. That the sales of land around Kaitaia already made by Nopera and his party to individuals should be acknowledged; but that any surplus lands, i. e., those the Government does not grant to the claimants, will be resumed by the chiefs who sold them.

"2. That they will sell no more land either to individuals or to the Government.

"3. That the chiefs will exercise all their ancient rights and authority of every description as heretofore; and will not in future allow of any claims or interference on the part of the Government.

"4. That they are all (except Nopera) very unwilling to arrange the dispute about the lands at Mongonui.

"5. That they (Morenga and his party) object to give the promised compensation for having stripped the vessel at Waro, one old gentleman declaring that they would be on the look-out for and take advantage of every similar God-send." 44

The vessel referred to was a new schooner on her first voyage, which got on shore, when she was stripped by the natives of all her sails and tackle, and became a total wreck in consequence. According to native custom, the plundering of a shipwrecked vessel, or of a burning house, is a legitimate proceeding; nor would the suffering party, if a New Zealander, think himself wronged. He would consider it a just punishment for allowing his canoe to be wrecked, or his house to catch fire. But by the influence of the Protector, a tract of land had been promised as compensation for the plunder of this vessel. The change thus indicated in their intention was owing to their having heard that a tract of land, which had been given on the Kaipara River for the destruction of a settler's house there, had not been given to the settler, but appropriated by the Government, who said they would give the settler what was right. The natives who plundered the vessel now asked "if they should give the land, would Tipene (the owner of the vessel) get it?" "Did Potete get the land which was given for the burning of his house?"

Porirua, the Ngapuhi chief, who had sold the greatest part of the land to the settlers, and accepted 100l. from the Government for the remainder, and who had come armed to the Commissioners' Court to assert and maintain the rights he had conveyed,

INTERFERENCE WITH TITLES GRANTED BY THEM.

although he and his people had ceased to have any interest in them, was joined by other Ngapuhi chiefs, with three large canoes full of armed men, from the Bay of Islands.

As regarded the Ngapuhis, the war which they came to wage was altogether upon a point of honour. Otane, the elder brother of Porirua, expressed himself thus to the Protector of Aborigines: – "He had been accused and abused by the Europeans for selling them land which did not belong to him, which had made him much ashamed; and to show them that he could not act so unworthy a part, he offered the Government a piece of timber-land in the district of Oruru as a compensation for Noble's claims to Mongonui," 45 referring to the claims recognised by the Government. Otane's feelings, as thus expressed, were the feelings of all the tribes with which he was connected; and they mustered their forces to protect the rights of the British settlers to the lands which they had conveyed to them. The most powerful influences – those of the Bishop of New Zealand, Archdeacon Williams, the head of the Church Mission, and Mr. Clarke, the Protector of Aborigines – were brought to bear upon them in vain. Nor was peace made till fifteen natives had lost their lives and much property had been destroyed. It was in this contest that Hone Heke, the leader in the subsequent war, first distinguished himself by his coolness and determination.

The Bay of Islands lost much of its importance by the establishment of the Government at Auckland – a large proportion of the settlers accepted the offer made by the Government to exchange their lands in the neighbourhood of the Bay for land near Auckland. The establishment of a Custom-house, and the levy of duties upon imports, and especially upon tobacco, had made the harbour a less desirable resort for whaling ships, and thereby caused much discontent amongst the traders of the place; and this discontent was communicated by them to the natives. It was asserted that foreigners had encouraged them to rebel, by the assurance of assistance from other nations, if they would repudiate the English flag. And all their former confidence in the uprightness of the Government being destroyed, Heke's rebellion broke out by the cutting down of the flagstaff on a hill above the town of Russel. In two letters addressed to Governor Fitzroy he gives his reason for this proceeding. In the first letter, dated May 21, 1845, he says: – "We are taunted with this language by the white people; by the white people of Hokianga, of Wangaroa, of Kororareka, of

CAUSES OF HEKE'S

Wahapu, of Otuihu: they made this statement – 'Your land will be taken by the Governor, and after that you will be killed. Look at Port Jackson, at China, and at all the islands; after that manner will this island be treated; the flag takes possession of the land – the English first, after that the French, and then the Americans (made this statement) – then I assented to these statements. They did this for four years. On the fifth year we assented to those often-repeated statements of the white people made to us. Then, first, we touched the flagstaff; it was chopped that it might fall. After that it was put up again. We then said, it is all true, for they urge the point, and we said we would die upon our land."

The second letter, which is dated July 15, 1845, is as follows: – "Mr. Governor, this is my message to you; let my faults be examined by you. Was the commencement made by you or by me? I think it was by you, by the white man. I was in ignorance; the white people said to me, 'John Heke, your land is taken by the Governor.' I replied, 'By what means is it taken?' The white people answered, 'By the flagstaff which stands at Maiki.' I said, 'What is to be done?' They replied, 'Cut down the flagstaff; it was chopped down, the tree fell.' I said, 'What meaning is there in the flagstaff? The white people told me the power of the Queen is in the flag; there are three nations in it.' I said, 'God made this land for us and for all our children.'"

In another letter, dated 29th August, 1845, he asks the Governor to provide a ship to take him in search of some other dwelling-place. He says: – "This is mine to you; my retention of my lands, and my sorrow for my lands, shall cease. Let them all go, the whole of them. I will not attempt to save even a part of my land....

"The thing that I put most value upon is land, because it was given by God for a dwelling-place for man in this world, a resting-place for the soles of his feet, a burial-place for strangers of the world. Amen....

"If you compassionate us and give us a ship, there will be no difficulty about the relinquishment of the land by us; if not, then now is it to be? We, the evil people, shall remain upon our lands then? But if we go elsewhere it will be good – the offences will not be seen. It is written, 'If you are evil entreated at one place, remove to another.'" 46

It has been stated that the Customs have been one of the causes of the native revolt, the natives paying double price for

REBELLION.

tobacco and not being allowed to trade with the ships for it; on the other hand, they received twice or three times the former price for their produce after the establishment of the colony. But the abolition of the customs did not prevent the second outbreak; nor did the waivers of pre-emption of 26th March and 10th October, 1844,

In reference to the Customs' duties, Governor Grey, under date the 12th May, 1846, writes to Lord Stanley as follows: –

"Whilst upon the ground of discontent, no objection at present exists to the payment of Customs' duties, as the native chiefs are beginning very generally to understand that the Government cannot be conducted without money; they are also generally anxious to enjoy the advantages of good government, and several of the principal chiefs have stated that they see that so long as the duties of Customs are the payment made to the Government so long will the wealth of the Government depend upon their being rich enough to buy clothing and articles of luxury; that it will thus be the object of the Government to see them wealthy, and they, therefore, entertain no fear of their lands and property being taken from them." 47

The only real grievance of which the natives had cause to complain was the inability of the Government to buy their land, which the Government were bound by the treaty to do whenever it should be offered at a fair price – that is, such a price as they were accustomed to receive from the settlers before they bound themselves by the terms of the treaty to sell no more land, unless to agents appointed by the Queen to treat with them for it. But the natives at the Bay of Islands, so far from complaining of this, had entered into a league to put any native to death who should offer to sell land. It was otherwise at Auckland, where, as Governor Fitzroy informed the Secretary of State, the natives were clamorous to sell land; but there was an "absolute inability on the part of the Government to enter into new purchases of land, having neither funds nor articles of trade, nor authority to draw on the home Government." 48

"At the first meeting held with the natives at Waimate, in the Bay of Islands district, after the cutting down of the flagstaff, no complaint was made of the Customs, or any allusion to them by any of the twenty-four chiefs who spoke in reply to

GOVERNOR FITZROY'S REPORT ON

the Governor's address, but the very first chief who spoke expressed himself as follows: –

"'PAKIRAU, – I have but little to say indeed, only be kind; our troubles are about the land; natives will not mind anything but the land. Be kind to us; we cannot prevent the evil that occurs, but we will try and promote the good; the person who will be good, he will be good and do good – the missionaries are good; and when any one does wrong, I will take my stand to prevent it.'" 49

In writing to the Secretary! of State on the 15th October, 1844, a few weeks after that meeting, Governor Fitzroy thus expresses himself: –

"I am bound to inform your lordship that the measures adopted towards the earlier settlers who had really acquired tracts of land by fair purchase tended to much harm. Those speculators who had bought many thousands, nay, millions, of acres never could have substantiated any claim, because they never had made valid purchases; but there were many whose purchases seemed large on paper, however valueless much of their land might be, who had fairly acquired a few hundred, or a few thousand, acres of land with the full consent of the aboriginal owners, and these persons not only suffered much from delay, expense, uncertainty, and inability to make any progress during three years, but the natives who sold them became exceedingly irritated, taking up their cause and saying, "If the Queen acts thus towards her own people, what will she do to us?' The interference, for instance, with Mr. Fairburn's property, however necessary in his case, raised a commotion among the Waikato tribes, which caused great alarm, but was hushed up, although they were then so irritated as to be on the point of rising against the local Government; and they are the most powerful tribes in New Zealand. While it was the object of the Government to raise as much money as possible by the sale of the lands, irrespective of the real interests of the settlers and the colony, it was of course an object to take as much as possible from the old settlers with the view of those lands (not reverting to their original owners, but) becoming disposable for sale by the local Government.

"Such a step as selling those 'excess lands' was happily never attempted, however generally contemplated. The natives would never have allowed it to take effect; and the attempt to do so would have injured the character of the Queen's government very seriously, if not irretrievably, so tenacious are the

THE EVILS ARISING FROM CONFISCATION.

natives of what they consider to be strict justice. As yet it is quite impossible to make them comprehend our strictly legal view of the cases."

Then as to the effects upon the progress of the colony, he states in continuation, that –

"Owing principally to these causes above-mentioned, there was a great stagnation in the colony, after the first two years of excitement had passed. The public revenue diminished rapidly. Trade diminished because there were then neither exports nor funds. People lived on the remains of whatever capital or property they had not expended. No titles to land were issued; the feelings between the two races were not only questionable, but becoming less satisfactory. 50

Under these circumstances Governor Fitzroy adopted two measures. The first was to issue grants to the early settlers, without waiting for the survey of their land; the second was to waive the Queen's right of pre-emption over certain portions of land, and allow individuals to purchase from the natives, to a limited extent, such portions of land as the natives might be anxious to sell. Deeds were accordingly prepared, granting to the early settlers the land comprised within the boundaries specified in the Commissioner's reports, estimated to contain, "more or less," the number of acres to which in each case the party was stated by the Commissioner to be entitled, according to the scale of expenditure fixed by the Land Claims Ordinance; and the parties were earnestly urged by the Governor to have such boundaries surveyed and registered, in order to prevent future disputes. But such was the distress in the colony that Governor Fitzroy stated that 400 of these grants were suffered; to remain in the hands of the Government, from the inability of the parties entitled to them to pay the fees.

The privilege offered of being allowed to purchase direct from the natives was taken advantage of by about 200 persons, to the extent in all of about 100,000 acres. The consequence of these measures was a perfect storm of complaints from the settlers of the New Zealand Company and its agents. These settlers had emigrated under the fallacious views maintained by Mr. Gibbon Wakefield, that it was possible to create an artificial price of land by preserving a due proportion between the labourers sent out to the colony and the capital invested in the purchase of land. These settlers were taught to look to an increase in the value of their investments by an increase in the

GOVERNOR FITZROY'S MEASURES TO

number of the settlers, rather than to the returns which the land was capable of making for the capital invested in its cultivation, which is the only standard by which the exchangeable value of lands, as well as of all other commodities, can be measured. A very numerously signed memorial was accordingly sent to the Secretary of State, complaining of the recognition of the titles acquired by the first settlers, and the permission to purchase direct from the natives in the North as a grievous injury and injustice to themselves. These complaints were reiterated and pressed upon the Secretary of State with every ingenious aggravation by the Directors of the New Zealand Company at home; 51 but it was probably less owing to these measures than to his financial arrangements that Governor Fitzroy owed his recal, Lord Stanley, with a generous appreciation of the difficulties of his position, having given his sanction to the waiver of the Queen's pre-emption, although disapproving of it, and directing that it should be discontinued as soon as circumstances might make it advisable to do so. But Governor Fitzroy appears to have himself attributed his recal to the hostility and misrepresentations of parties connected with the New Zealand Company. 52

In one of his first despatches after assuming the government, Governor Grey makes the following statement to the Secretary of State: –

QUIET THE EXCITEMENT ON LAND TITLES.

"I find that great distrust regarding the intentions of the British Government upon the subject of claiming all lands of the natives not actually in occupation and cultivation exists amongst many of the most influential and hitherto friendly chiefs in this quarter. They are tolerably well acquainted with the details of the discussion which took place in the House of Commons at the end of June last regarding the state of New Zealand, and their apprehensions are avowedly based upon what transpired during the debate to which I am alluding.

"I have agreed to receive upon Thursday next, the 27th instant (November, 1845), a deputation of the principal chiefs, who are anxious to address me upon the subject of their lands, and upon the state of affairs generally. I shall not hesitate at once to relieve their apprehensions regarding their lands, by assuring them that Her Majesty has directed me scrupulously and honourably to fulfil the conditions of the Treaty of Waitangi."

But, as the Protector of Aborigines observed in a passage previously quoted, "The New Zealanders are a people who will be better convinced by practical illustrations of the intentions of Government than by lengthened discussions;" and it will appear in the sequel whether the practical illustrations afforded by Governor Grey in his treatment of the original settlers, who bought land before New Zealand became a British colony, and of those who availed themselves of the waiver of pre-emption by Governor Fitzroy to buy land, were more calculated to relieve their apprehensions, or to confirm the distrust and suspicion under which they laboured.

In yielding to the pressure of difficulties which beset him, Governor Fitzroy, by authorising purchases of lands from the natives by individuals, provided that no Crown grants should be issued until at least twelve months had elapsed from the receipt in the Colonial Secretary's office of certified copies of the surveys and deeds of sale, which were to be made at the expense of the purchaser; and "that all transactions with the sellers, all risks attendant on misunderstandings, on sales made improperly, or incomplete purchases, must be undertaken by the buyers until their respective purchases have been allowed and confirmed by grants from the Crown."

With these and various other precautions against compromising the Government in any disputed title, and with the further provision that one-tenth of the land purchased, of fair average value, should be conveyed to the Crown for public purposes, "especially the future benefit of the aborigines," and with the

GOVERNOR GREY'S REPUDIATION

reserve of the right of making roads and bridges through the land, Governor Fitzroy undertook to issue Crown grants for certain limited portions of land which should be purchased under the authority of a certificate waiving the Crown's right of preemption; and to bind the faith of the Crown to the parties who should thus invest their money, he issued a proclamation "under the public seal of the colony." The extent of the land thus purchased was about 100,000 acres, the number of purchasers about 220. The earliest date at which a certificate was issued was the 14th October, 1844; the latest, 17th November, 1845, shortly before Governor Grey assumed the Government; so that, according to the conditions of the proclamation, it was not in Governor Fitzroy's power to complete in any case, by the issue of grants, the contract which, on the part of the Crown, he had entered into. These transactions having been reported to the Secretary of State, Lord Stanley instructed Governor Grey, while expressing dissatisfaction with the arrangement, "that he would of course recognise any sales which he (Governor Fitzroy) may have sanctioned under his last proclamation, reducing the fee to one penny an acre." 53 On the 9th June, 1846, Governor Grey, in a despatch to the Secretary of State, 54 represents the "concessions" thus obtained from his predecessor as having "been obtained by the most improper means," refers to a statement that a number of persons had subscribed a large sum as a reward for whomsoever should do most towards stirring up and informing the natives how to act together on this subject; and as he considered it "reasonable to suppose that the agitators for these concessions were those who most eagerly availed themselves of them, he regretted that they should have been so largely rewarded for such conduct, if indeed they are ultimately allowed to retain these lands." He described these concessions "as unjust and oppressive to Her Majesty's subjects of both races." He stated "that the settlers in the Southern districts were indeed most cruelly injured by this regulation;" and he says, "I feel, further, a great reluctance to be in any way concerned in inflicting upon the Southern settlements the injury which I see is likely to overtake them." 55 In reply to a memorial from forty-five of the purchasers, stating that "the lands purchased by them were now in their possession, many of them having expended large sums of money, and were carrying on improvements on the same," in which they disavow in the strongest terms having evaded the regulations, or having excited the natives on the Crown's right of pre-emption, or having been

OF GOVERNOR FITZROY'S CONTRACTS.

aware of any person who subscribed money for that purpose – they entreat "the institution of such an investigation as may be sufficient to satisfy his Excellency should he entertain the shadow of a doubt as to the accuracy of their declaration" – and that, "feeling the injustice of dealing with their property on an assumption of the truth of that which is undeniably incorrect," they pray that his Excellency will, "in conformity with the Secretary of State's permission, grant that title to their lands which was promised to those who purchased under the authority of the proclamation of 10th October, 1844." 56 Governor Grey informed the Secretary of State that he "did not comply with either of their requests;" and, inter alia, he made the following statement to the memorialists: – "I am fully satisfied that the great majority of the inhabitants of this portion of New Zealand will in no way connect themselves with proceedings which, looking to the fearful calamities they will eventually entail upon Her Majesty's subjects of both races, cannot but be viewed with horror by the whole civilised world." 57 The "proceedings" which were to produce such fearful effects were neither an offence known to the laws of the country nor against morality, but a question of policy, if not a question, under the circumstances, of simple justice to the natives, as relieving them from the consequences of the inability of the Government to fulfil the conditions of the treaty of Waitangi; and, so far from causing injury, proved, in fact, the means of averting from Auckland the insurrection which occurred at the Bay of Islands. A similar agitation was subsequently openly advocated by a leading member of the Assembly; and, finally Sir George Grey gave his assent to an Act which enabled the natives to make sales to private individuals not of "a few hundred acres," but of all the territory over which the aboriginal title had not been extinguished, extending to nineteen or twenty millions of acres. Earl Grey, who had now become Secretary of State, instructs Governor Grey, under date the 11th February, 1847, that "to whatever extent the faith of the Crown is thus pledged to the purchasers, it must be maintained inviolate, be the consequent inconvenience what it may." 58 This, however, was subject to its being shown, by a previous searching investigation in each case, that the conditions of the proclamation had been fully complied with. But already, on the 15th December preceding. Governor Grey had seized the lands into the possession of the Crown, and had issued a public notice in the Government Gazette inviting parties who might be desirous of relinquishing

INSTANCES OF REPUDIATION

their claims to the said land, on receiving a Government debenture for the amount of their disbursements, to give notice of such intention; and warning them that "if they should attempt to enter into occupation, or take actual possession after that date, they would be proceeded against in due course of law." 59 To those who declined to comply with this proposition, he offered a grant of five hundred acres, on the payment to the Crown of 5s. an acre, in addition to the price paid to the natives. "Any title which the claimant may have acquired over the remaining portion of the claim to remain in the Crown;" or to abide by what he called "the provisions of the instructions of Her Majesty's Government." But in no case was the public faith kept to the parties, as pledged in the proclamation under the seal of the colony by Governor Fitzroy, and enjoined by two successive Secretaries of State, upon his successor in the Government. Some cases were of so extraordinary a character that they would not be believed on any evidence but such as was incapable of being misunderstood or contradicted.

In an address delivered at the table of the House of Representatives on a petition against the provisions of the "Land Claims Settlement Bill, 1856," which was afterwards published, a reference was made to two cases, in the following words: –

"Honorable members from the South can, I believe, have little idea of the cruelty with which some persons who bought land from the natives, under the authority of Governor Fitzroy's waiver of the right of pre-emption, have been treated. I myself know but little of them; but the few cases which have come to my knowledge would not be believed – they would be incredible, if the truth was not forced upon us by the authority of official documents. I do not feel qualified to enter into a general view of these cases; but I must beg the indulgence of the House in referring to a case which only came to my knowledge during my present visit to Auckland. My landlady brought me some papers which I found to relate to a purchase of land, on a preemption certificate, by her late husband. There was a copy of a letter to the Governor, written by her husband from his deathbed. It stated that his hours were numbered; and it implored the Governor to give him before his departure the comfort of an assurance that at least a portion of the land which he had purchased under the authority of his predecessor, Captain Fitzroy, would be given to his widow and children: he would be satisfied with only a portion. Well, sir, the House will be

AND ROBBERY OF WIDOWS.

prepared to hear that the draconic refusal was his death-knell. It was not so: he was spared that pang. 'I took,' said the poor woman to me, 'I took the messenger in, and showed him my husband in his coffin, and then desired him to go back and tell the Governor what he had seen. After a time I called upon the Governor myself, and asked him if there was no hope of my getting any part of the land. He replied, none whatever; that, in fact, I had no right to have those title-deeds; that Governor Fitzroy had no right to allow my husband to buy that land.' Now, sir, we who have access to the Parliamentary Papers know that these were false pretences. There was nothing wanting in these transactions to constitute a perfect contract, such a contract as the judicature of every civilised country would have enforced in the case of private persons. Even if Captain Fitzroy had mistaken his duty, nothing but a fraudulent collusion between himself and the parties in whose favour he waived the right of pre-emption could dissolve the obligations which the Government had incurred. They were binding on the national faith. And we also know, sir, that at the time Governor Grey dealt thus cruelly and deceitfully with this poor widow, he was in possession of despatches from two successive Secretaries of State – Lords Stanley and Grey-commanding him, and reiterating the command, that' the 'public faith must be kept with these persons, at whatever inconvenience' Sir George Grey told her he could do this for her: he could order that her money should be returned to her; and she at last consented to receive back the money – 135l. – which her husband had paid for the land nine years before. Not a shilling of interest was paid for the use of it, although the Government was paying interest for the use of money all that period; and Sir George Grey himself, as I have been told, was receiving 8 per cent, on Government debentures. Now this bill would afford no compensation whatever to this woman for so gross a violation of her rights.

"There is a case of another widow, which was published and animadverted upon in the newspapers of the time, in terms which were a public scandal to the colony. I hold it for certain, sir, that not a man in England could be brought to believe that such transactions in their literal truth could have occurred in the nineteenth century and under the Queen's dominion. This woman states, in her memorial to the Legislative Council, that in order to purchase nine and a half acres of land, which Captain Fitzroy authorised her to purchase as a provision for herself and seven children, she sold her trinkets and her watch.

INSTANCES OF REPUDIATION

The public Gazette of the colony, issued under the authority of Governor Grey himself, informed the public that the title thus acquired had been investigated by the Commissioner appointed to that office, and found valid, and that a deed of grant was in preparation for 9 acres, 3 roods, and 25 poles. 60 In the meantime, however, it would appear that Sir George Grey had discovered that this piece of land was, from its locality, extremely valuable; so he caused a grant to be made out for the widow for 1 acre, 1 rood, 35 poles, and ordered a letter to be addressed to her that the grant for that quantity was prepared, and fees to the amount of 2s. 6d. due upon it; and that unless these fees were paid within one month 'the claim would be disallowed, the grant cancelled, and the Surveyor-General directed to take possession of the property.' The remainder of the land was sold by public auction, and the proceeds of it received into the public treasury. Is it possible, sir, that a Christian Legislature can adopt and identify itself with such a transaction as this, by refusing redress to this poor widow, so cruelly and fraudulently despoiled of her property? But the provisions of this bill would prevent the Commissioners from even taking cognisance of either of these two cases; and there are many cases in which individuals have received similar treatment."

There was the case of a third widow, which was on several occasions brought before the House of Representatives. This was a native female, who had been married to a person named Meurant, who had been in the employment of the Government as interpreter. She belonged to a tribe of natives who had sold a great part of the land surrounding Auckland to the parties who obtained a waiver of the Crown's rights of pre-emption, but who, before parting with all their land, settled thirty acres of it on Mrs. Meurant, the wife of the interpreter, "as a marriage portion, and for the support of her children." This portion, from its near vicinity to Auckland, was of considerable value; and it did not escape the notice of Sir George Grey that, by reason of the woman's marriage, the title vested in her husband according to English law; and this being the case he seized it also, and sold the greater portion of it – twenty acres out of the thirty. Had the native woman been living with Meurant as his concubine she could have continued to hold her land under the aboriginal title. But the land was seized as the consequence of her marriage, in conformity with the clauses of the Land Claims Act, that all titles to land held by British subjects, not confirmed by a grant from the Crown, were

AND OTHER CAUSES OF SUSPICION.

void, and that such land vested in the Queen as demesne of the Crown. 61

All these proceedings of the Government were watched with intense interest and jealousy by the tribes nearest to Auckland; but in addition to the inferences they could not avoid drawing as to the intentions of the Government towards themselves, from the treatment the settlers met with at its hands, they had another and more direct cause of alarm in the provisions of the charter of 1846, and the instructions of the Secretary of State respecting it. Earl Grey assumed that as for nearly three hundred years, by the general consent of the colonising nations of America, the right of the aborigines to the soil of that continent could not be recognised as a bar to its settlement by the civilised nations of Europe, the same principle should apply to the case of New Zealand, so far as it might be found to be consistent with the obligations of the treaty of Waitangi. It was maintained by a majority of the Committee of the House of Commons which sat upon the affairs of New Zealand in 1844, of which Earl Grey, then Lord Howick, was chairman, that these obligations could not extend to the whole of a territory nearly as large as the British Islands, inhabited by a population not exceeding 100,000 people. As an abstract question, the principle laid down by Earl Grey is incontrovertible. The command of the Creator was to all the family of Adam that they were to "increase and multiply and replenish the earth and subdue it." "The earth is the Lord's and the fulness thereof." It is from these divine revelations, and from the light of reason in their application, that such principles as are quoted by Earl Grey from the writings of Dr. Arnold, and are to be found in writers on the law of nations, derive their authority. "The people of Europe," says Vattel, "too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it and settle it with colonies." To have denied this title would have been to place a veto on the command of the Creator to replenish the earth and subdue it. But this abstract title was overruled in the case of the New Zealanders by their recognition by the British Government as "a substantive and independent State;" by the admission that

ERRONEOUS VIEWS OF THE TREATY

their "title to the soil and sovereignty of their country was indisputable, and had been solemnly recognised by the British Government;" and by the provisions of the treaty founded upon the admission of these obligations, of the true signification and purport of which there could be no doubt on the part of those by whose instrumentality and influence with the natives the treaty was negotiated. It was well known to them that there was no part of New Zealand which was not claimed in property by one or more of the tribes; and that whatever disputes they might have amongst themselves as to the boundaries of their tribal possessions, they would have united in repudiating with the utmost scorn the claim of any foreign nation to assert a title to take possession of any portion of the country on the ground of defective title, or on any other ground whatever. There remained, therefore, only two alternatives – namely; to conquer the country, or, to treat for the sovereignty. To withdraw the settlers from it was impossible. The endeavours of the Government to establish and maintain a nationality in favour of the natives, and to prevent the occupation of their country by British subjects, had signally failed. They seemed to afford another proof of the fulfilment of that prophecy – "God shall enlarge Japheth, and he shall dwell in the tents of Shem, and Canaan shall be his servant." The colonies of America were founded upon the assumption or pretension of conquest; but the New Zealanders would have submitted to no such assumption or pretension, even had the previous recognition of their independence not debarred the British Government from proceeding upon it. When, therefore, the Governor was instructed to require the chiefs to register their titles in order to their investigation by a land Court, and that "no claim shall be admitted in the said land Courts on behalf of the aboriginal inhabitants of New Zealand to any lands situated within the said islands, unless it shall be established to the satisfaction of such Court, that either by some act of the Executive Government of New Zealand as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the right of such aboriginal inhabitants to such lands has been acknowledged and ascertained, or that the claimants or their progenitors, or those from whom they derived title, have actually had the occupation of the lands so claimed, and have been accustomed to use and enjoy the same, 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,"

A CAUSE OF SUSPICION.

these proceedings were looked upon by the natives as the first step towards the abrogation of the provisions of the treaty, and the seizure of the land, and occasioned much alarm to the settlers. The Bishop of New Zealand sent to the Governor, and requested that it might be forwarded to the Secretary of State, a protest in his own name and on behalf of the clergy, whose influence had induced the natives to agree to the treaty, against the principles affirmed in Earl Grey's instructions. A petition from the principal inhabitants of Auckland, headed by the Bishop and the Chief Justice, was also forwarded to the Queen, praying that the Treaty of Waitangi might be maintained, and that the instructions which were inconsistent with its provisions might be abrogated. The chief Te Whero Whero, afterwards "King Potatau" – whom Governor Grey described as "the most influential chief in New Zealand, and as a most excellent man and a faithful subject of Her Majesty " – with Other chiefs of Waikato, addressed a letter to Her Majesty, expressing their alarm at the news that "it was intended to take away the lands of the natives without cause;" and praying that "she would be gracious to them," and "write to them her thoughts, that peace may prevail among the natives of these islands." And Archdeacon Maunsell, who had been employed to obtain the adhesion of these chiefs to the treaty, wrote to the Governor an energetic letter of remonstrance, representing "the growth throughout the native community of a very dangerous feeling." "Our people," he says, "now ask us. Why is the treaty of Waitangi thus virtually broken? Why, for the sake of a few useless spots that could have been purchased for a comparative trifle, is a train laid for involving the whole island in a flame? 62 In forwarding the protest of the Bishop, Governor Grey states that "he was inclined to think that the amount and probable effect of the excitement had been much over-rated," and that he thinks he is "justified in stating that a greater amount of tranquillity and prosperity at this moment prevails throughout the whole of New Zealand than has ever hitherto existed." On which the Bishop has the following remark in a letter addressed to the Governor, dated August 1, 1848: – "If, then, on that particular 7th July, on which your Excellency's two despatches and my protest were forwarded, there was no existing ground for apprehension, that day can only be looked upon as a happy interval of repose, preceded and fol-

PROTEST OF THE BISHOP AND CLERGY

lowed by fears on the same subject and in the same quarters." 63 In the same letter, the Bishop eloquently remarks that "it may be possible in England to be satisfied of the 'unsubstantial nature of the grievance with which the natives are threatened,' but we who have seen the English flag contemptuously cut down, and a town sacked in consequence of these suspicions, are forced to believe that if the grievances are not substantial in themselves, at least they have a real existence in the minds of those who believe themselves to be aggrieved. They know of our dealings with other native races, and would ask at once in their own figurative language whether it be the shadow or the substance of a grievance which depeopled Van Dieman's Land and Australia." But the causes for the alarm of the natives as to the treatment that awaited them were not confined to the seizure of the lands purchased by individuals under the authority of Governor Fitzroy, nor to the publication of the charter and the Secretary of State's despatch. The agents of the New Zealand Company and their settlers had, in their memorial to the Secretary of State, not only denounced the waivers of pre-emption, but also the grants made by Governor Fitzroy in excess of the limit of 2560 acres, as being illegal and unjust to the Company's settlers, who had paid to the Company 20s. and 30s. an acre for their land. In a confidential despatch to the Secretary of State, which was communicated to the Church Missionary Society, and afterwards found its way into an Auckland newspaper, 64 Governor Grey forwards a list of the individuals who had received grants in excess of 2560 acres. He states that "they include amongst them those connected with the public press, several members of the Church Missionary Society, and the numerous families of those gentlemen," &c. "The total number of individuals in whose favour these tracts of land are claimed may be stated at from forty to fifty. For the reasons stated in my public despatches, I feel myself satisfied that these claims are not based on substantial justice to the aborigines, or to the large majority of British settlers in this country, Her Majesty's Government may also rest satisfied that these individuals cannot be put in possession of these tracts of land without a large expenditure of British blood and treasure." There were other observations warning the Government as to the effects of the unprecedented hardships to which the troops would be exposed, and the indisposition of the officers

AND PETITIONS OF THE INHABITANTS.

and men "to undergo such fatigues, to put those whom they would regard as mere speculators in possession of lands wrested from a race who have many qualities which excite a soldier's esteem," &c. On the appearance of this despatch a petition was sent to the Queen, signed by twenty-three of "the sons of the missionaries and catechists of the Church Missionary Society, born, educated, and settled in your Majesty's colony of New Zealand." 65 The following are extracts from this petition: – "That your Majesty's petitioners have seen with equal sorrow and astonishment a despatch from his Excellency Governor Grey, dated 25th June, 1846, to your Majesty's principal Secretary of State for the Colonies, conveying imputations upon their character and conduct which are not more at variance with truth than injurious to your Majesty's petitioners, who are therein, with others, designated by Governor Grey as a 'party,' who, he states, 'cannot be put in possession of the lands they claim without a large expenditure of British blood and money,' whereas your Majesty's petitioners would shrink with horror from the possession of any property for the acquirement of which such means should be necessary." "That some of them have been in occupation of their lands for twelve years and upwards, and that these lands were purchased for them by their parents long before New Zealand became a possession of your Majesty's Crown; that their titles were investigated by Commissioners specially appointed for that purpose in your Majesty's name; and having been not only undisputed, but proved by the testimony of the original sellers to have been acquired on equitable terms, were so reported by the said Commissioners accordingly, and finally confirmed by the issue of grants from your Majesty to the parents of your Majesty's petitioners; that though these lands are located in the midst of the tribes that were in rebellion, your Majesty's petitioners continued in the occupation of them during the war unmolested and undisturbed, although, according to their several circumstances and situations, your Majesty's petitioners rendered the most active assistance to your Majesty's Government in putting down the rebellion, not shrinking from the most dangerous services, one of their number having been severely wounded while acting as interpreter to the commander of the forces at the assault of Ohaeawaia; their oxen, drays, and boats having also constantly been employed in the services of your Majesty's forces . . . . . .

PETITION OF THE SONS OF THE

"Your Majesty's petitioners cannot, therefore, but lament that Governor Grey should have made representations to your Majesty's confidential advisers so repugnant to the truth, and so injurious to their reputation, as that the lands, for which were paid ten times the price per acre which was subsequently paid for lands purchased by the Colonial Government, should be considered as wrested from the natives, or that such purchases should not be based on substantial justice to the aborigines, or that they should require to be put in possession of them by 'a large expenditure of British blood and money.'

"That the sons and daughters of the missionaries and catechists of the Church Missionary Society settled in this country, for whom the lands occupied by your Majesty's petitioners were purchased, amount in number to 128 – some of them being married and having families – that the average extent for each individual, not including the children of such as have families, does not exceed above 500 acres, good and bad together; whereas in the neighbouring colony of New South Wales it was customary, at the time some of these lands were purchased, for the Government to endow the sons of the colonial chaplains with a free grant of 1920 acres, and their daughters with 1280 acres . . . . . . .

"That, born and educated, as they have been, amongst them ('their aboriginal fellow-subjects'), and intimately acquainted as they are with their sentiments and feelings, your Majesty's petitioners would fail in their duty to your Majesty were they not humbly to represent that their aboriginal fellow-subjects look upon these proceedings as only the prelude to an attempt to dispossess them of their own lands, and as a confirmation of the suspicions universally excited by the late despatch of Earl Grey, dated 23d December, 1846, that the solemn treaty negotiated, by your Majesty's authority, with the chiefs and people of this country, and ratified by your Majesty, will be no further regarded than as it may suit the purposes of the individuals who, for the time, may represent your Majesty among them."

These documents, having been referred by Earl Grey to Governor Fitzroy in England, he made the following observations in relation to the lands purchased by the missionaries: –

"With respect to the Church of England missionaries' claims to land in New Zealand, I may here, in passing, state

MISSIONARIES TO THE QUEEN.

my own conviction, that those claims will not 'give rise to native wars' or 'disputes between the Government and the natives,' unless the Government attempt to dispossess the legitimate and undisputed owners of those lands – namely, the missionaries and their numerous children, some of whom are married and have families. The natives have remarkably strong feelings of attachment to the older missionaries and their children. They care little for the clergymen who have been only a few years in the country. They do not consider them as belonging to themselves." 66

In August and November, 1847, representations were made to the Government by a private gentleman that no less than six murders had been committed by natives upon natives in the Northern parts of New Zealand, and on the necessity of the Government taking some steps in the matter, on which representations the Governor commissioned an officer of the 58th Regiment, serving in New Zealand, to visit the Northern districts to inquire into the circumstances connected with these murders. He was also instructed to inquire into any real grievances of which the natives may complain. "Two subjects," it is stated in his instructions, "will probably be frequently brought forward by the natives in their discussions with you: –

"1. The subject of the reports now in circulation regarding the intentions entertained by the Government of depriving them of their lands.

"2. The intentions of the Government with respect to the large tracts of land claimed by some few members of the Church Missionary Society, and the grounds upon which these intentions are baed.

"Upon the first of these points it may be sufficient to state that the Governor is, by Lord Grey's despatch of the 23d December last, directed scrupulously to fulfil whatever engagements he may have contracted, and to maintain those rights, on the part of the native tribes, to land which he may have already recognised."

No mention is made of the provisions of the Treaty of Waitangi. What engagements Governor Grey might have contracted, or what rights he might have recognised, it would be difficult to ascertain; and it would be much more difficult to show what such maintenance of engagements, or recognition of rights, had to do with the question. The rights of the natives rested upon the treaty of Waitangi, which no proceedings of the Governor had power to affect or to annul, so long

ENDEAVOURS OF SIR GEORGE GREY

as the natives were true to the engagements they had entered into by it. The instructions go on to say: –

"In reference to the subject of the land claims of some few members of the Church Missionary Society and others to the Northward, your answer should be, that the Government believe that the lands claimed by these individuals are so claimed in violation of the just rights of Her Majesty's subjects, native and European; that they are believed to be, in all instances, illegal, and contrary to the awards of the Commissioners who were appointed by the Government to hear those claims; and that the Government can now only interfere, in as far as the law permits, to protect the just rights of those individuals whose land may be so claimed." 67

In the report of the proceedings of this officer it is nowhere stated that the subject of the missionary or other land purchasers in the North was "brought forward" by the natives in the way of complaint. Indeed, the only allusion to the subject is reported as having occurred at the first settlement they visited. "We arrived in the harbour of Mongonui on the 29th (Nov. 1847), and from thence proceeded to the settlement of the influential chief 'Noble' at Oruru, about six miles distant from Mongonui. Noble received us with much civility, although he told us that he had been informed by a European whom he named, 'Henri Poto,' who had translated an article out of a newspaper to him, that the Queen was going to take away, first, the lands of the missionaries, and then the lands of the natives. We asked Noble if he believed these reports: in reply he said: – 'I will wait until I see the Governor take some land, and then I will believe.' We told Noble that, with regard to the natives, the Government had no intention of depriving them of their lands, and with respect to the missionaries, that it was in contemplation to take away a portion of land from individuals who had procured it from individuals in larger quantities than they could use, to the exclusion of other Europeans, and reserve the portion taken away for the use of the natives. This proposition he pronounced to be perfectly just." 68 In September, 1847, Governor Grey himself visited the Bay of Islands, and appears to have taken every opportunity of exciting the natives against the missionaries. He said to Tamati Waka: – "I shall fight with the missionaries to return a portion of the land to the natives; we shall have a paper war." Waka repeated this

TO UNSETTLE TITLES TO LAND.

conversation to various parties at Russel. A sawyer named Thomas Joyce, who was employed in cutting timber on land belonging to the Church Missionary Society, addressed the following letter to George Clarke, Esq., the local Secretary to. the Mission: –

"Waikuku, December 14, 1847.

"I am annoyed by some natives belonging to Uritanewa, Ruhe, his brother, and others, a few days since, they being employed by me to roll some logs. They threatened me without cause, and also said that I should not saw any more timber on that ground; that they intended to speak to the Governor, and get the land and timber back from the Mission. I told Ruhe that the Governor would not listen to him in sunjust a cause; but he said he would pay all attention to anything he said; that all they had to do was to oppose white people's claims; that he (the Governor) would give them back their land. We were assured of it, because the Governor did tell us so." 69

These instances, which are extracted from voluminous details of similar instances, would seem to demonstrate that, if it had been the intention of Governor Grey to destroy in the minds of the natives all trust in the uprightness of the Government, he could have taken no more effectual means to accomplish that end.

Having failed in his attempts to obtain possession of the grants issued by his predecessors to the missionaries, through me intervention of the Bishop and the Church Missionary Society, Sir George Grey selected two cases, in which the terms of the grants were most irregular, and instituted proceedings by scire facias in the Supreme Court, to try their validity. But both grants were upheld by the judges on the ground that these irregularities did not proceed from any deception or misrepresentation on the part of the grantees. In one of these cases an appeal was carried to the Privy Council on the petition of the local Attorney-General, and the judgment reversed. 70

But, without waiting for the decision of the Privy Council,

TENDENCY OF SUCH PROCEEDINGS TO DESTROY

Governor Grey passed an Ordinance 71 to quiet the titles which these proceedings had disturbed, and to make provision for settling claims where no boundaries were stated. The grants which were described by definite metes and bounds – that description applying to all the lands of the missionary families and of nearly all the first settlers in the North – were declared to be good and valid; and provision was made for ascertaining by actual survey those portions of land belonging to other parties which were not described by metes and bounds in the grants issued to them. This act was approved by the Queen; and thus the agitation produced by Governor Grey's interference with the grants of his predecessors, confirming purchases which had been made on equitable conditions from the aboriginal owners during the three years preceding, was, for a time, brought to a close. With regard to the purchases made under the authority of the proclamation waiving the Queen's right of pre-emption, Governor Grey took a course which was well qualified to destroy the confidence of the public in the Queen's Courts of Justice, as it previously had been destroyed in the person of the Queen's Governor,

On the 5th July, 1847, Governor Grey addressed the following despatch to Earl Grey: –

"In reference to my despatch. No. 42, of the 19th April last, in which I reported that I had directed steps to be taken with a view to obtain the decision of the Supreme Court upon the legality of the course pursued by my predecessor in waiving the Crown's right of pre-emption over large tracts of land in favour of specific individuals, with a view of ascertaining whether these individuals had, by such alleged waiver of the Crown's right of pre-emption, acquired any legal rights which they could require the Government to recognise and enforce, I have now the honour to enclose copies of the opinions of the Judges of the Supreme Court to the effect that the waiver of the Crown's right of pre-emption was illegal and void. I

CONFIDENCE IN THE COURTS OF JUSTICE.

believe that this decision has had the effect of convincing the whole of the claimants, under similar waivers of the Crown's right of pre-emption, that they have acquired no legal rights by such waiver, and that I could not legally issue the grants which they have been so anxious to obtain. I have, "&c. &c. 72

This is altogether a misrepresentation. The steps taken were not, as Sir G. Grey states, "to obtain a decision upon the legality of the course pursued by his predecessor," but to ascertain whether a grant made by Sir George Grey, in the name of the Queen and under the Seal of the Colony, was better evidence of title than a certificate of pre-emption under the hand of the Colonial Secretary, together with the native title acquired under the authority of that certificate. The true case brought before the Court is thus stated in the words of Mr. Justice Chapman: –

"This case comes before the Court upon demurrer to a declaration in a suit of scire facias, whereby the party suing out the writ seeks to set aside a grant from the Crown made under the public seal of the colony to the defendant, on the ground that the claimant has a prior valid title to the same land by virtue of a certain certificate, whereby it is alleged the late Governor waived in the present claimant's favour the Queen's exclusive right of acquiring the land in question from the natives.

"The question which this Court has to determine is, did the claimant, Mr. C. Hunter M'Intosh, acquire by the certificate and his subsequent purchase (admitted to have been in all respects fair and bond fide) such an interest in the land against the Crown as invalidates a grant made to another subsequently to the certificate of purchase."

To enable him to raise this issue Sir G. Grey availed himself of the agency of two public functionaries. To one of these, Mr. C. Hunter M'Intosh, Sir George Grey's predecessor in the Government, had pledged the faith of the Crown by a proclamation, sealed with the public seal of the colony, that he would issue to him a grant of a certain piece of land on condition that he should make a bond fide purchase of it from the aboriginal proprietors, which bond fide purchase had been accomplished and was admitted. To another public functionary, Mr. John Jermyn Symonds, Sir George Grey issues a document in the name of the Queen, and sealed with the public seal of the colony, purporting to convey a grant of the same piece of land to him; and he asks the Queen's judges to decide in the Queen's Courts whether an act thus avowedly done in flagrant

DECISION OF THE JUDGES ON A

violation of the public faith is not more legally binding than the obligation of a contract, which on one side had been fulfilled, and which the Crown had solemnly engaged on such fulfilment to complete. The judges could do no otherwise than decide that the Crown grant, "the best and highest title upon which a subject can rely," could not be set aside by a promise of a Crown grant; that a deed duly executed and authenticated could not be set aside by a previous promise inconsistent with it. How far the statute of frauds might have dealt with such a case had it occurred between private individuals is another question; but in this case, as one of the judges indicated, the remedy was not of that nature, but by a petition of right – a mode of redress far beyond the reach of any of the parties aggrieved.

It is true that both judges did incidentally express an opinion that in waiving the Queen's right of pre-emption Governor Fitzroy had exceeded his authority; but this point was not judicially decided. On the other hand, Lord Stanley expressly agreed with Governor Fitzroy "that no infringement of the Land Sales Act will take place by the present measure, as that Act applies only to lands vested in the Crown, whereas the lands affected by those regulations are native property." 73 In a subsequent despatch, dated 15th August, 1845, Lord Stanley instructs Governor Grey to waive in favour of the New Zealand Company the Crown's right of pre-emption over certain lands in the Southern Province. 74 And Governor Grey did so accordingly, by a proclamation dated 21st February, 1846. 75 The question is not, in fact, a question of strict law. But whether the Queen's representative, acting in the name and on the behalf of the Queen, had power, on grounds of public policy, to relax or modify the conditions of a treaty in favour, not of the Queen, but of the weaker party. The legality of such a power, exercised in good faith, was probably never made the subject of question in a Court of law, as it seems to be one which a subject could not raise.

In concluding his judgment the Chief Justice (Martin) used the following significant words: – "Of course we in this place have nothing to do with any question except the bare legal question of the existence or nonexistence of a legal right and title in the claimant. It may also be proper to remark that this judgment does not affirm the absolute validity of the grant to the defendant. It decides this

SUPPOSITITIOUS CASE.

only, that the grant cannot be set aside on the grounds which are set forth on the record." In another part of his judgment, the Chief Justice refers to the grant as being "wholly unimpeached." Had the action been bona fide between the parties, there can be little doubt that counsel would have impeached the grant, on the ground that "the Queen had been deceived in her grant;" and, looking at all the cases cited in the books of authority on the Queen's prerogative, there is little doubt that the grant would have been declared null and void on that ground. It was by such transactions as these that the natives were to be educated in the knowledge of British administration, and taught to place their trust in the Governor's assurances that it was not intended to deprive them of their lands. Considering that for twenty years they had been imbibing the doctrines of Christian morality from their "one book," the Bible, ought it to excite surprise that they had come to regard the Government with "incurable suspicion?"

Sir George Grey's first administration of New Zealand came to an end in 1853, immediately before the introduction of representative institutions. His conduct in reference to the seizure of the settler's lands, and especially that of the Widow Forbes, had been indignantly denounced in the Provincial Council of Auckland at its first meeting. One of the last of his acts was to send a Commissioner to treat with the natives of the Wangarei district for the sale to him of a tract of land, which belonged to the member of Council who had characterised his treatment of the Widow Forbes as "an atrocious transaction." A young chief of that district who happened to be in Auckland was sent for by Governor Grey, and told that he was to accompany the Commissioner who was going to purchase the land. The young chief gave the owner of the land the following account of the interview, which was taken down at the time, and afterwards read to the House of Assembly in an address on the "Land Claims Bill of 1856," which address was published after its delivery. The young chief, whose name was Poukoura, had been one of thirteen youths belonging to the principal families who sold the land who had been sent to perambulate the boundaries with the purchaser, in order to point out the different places named in the deed of transfer, and put him in possession. "I was led," said he, "into the presence of the Governor, who told me I was to go with Mr. Johnson, who was going to Wangarei to purchase the land. I said to him, 'O Governor, the men of Wangarei will not sell that land to you, for they sold it many years ago to Mr.

THE NATIVES INVITED BY GOVERNOR GREY

Busby.' He said he intended to pay you for the land in proportion as you had paid for it, if much, much, if little, little. I then replied, 'The men of Wangarei will not allow any white man to live on that land without the leave of their father' (meaning myself). The Governor then said, 'Are you a gentleman?' O Mr. Busby, great was my boldness in the presence of the Governor when he asked me if I were a gentleman; and I said to him, 'Amongst my own people I am a gentleman, although I may appear a slave in your sight. But if you stood in the presence of my people divested of your Governor's clothes, perhaps you would appear as little a gentleman there as I do here.' He then said I was a child, the elders would listen to Mr. Johnson, and I replied, 'O Governor, I now perceive you are a robber of land.'

Another member of the tribe was soon found who was made more pliant by a gift of 200 sovereigns, which he was to distribute amongst the rest. But his proposition excited amongst them the greatest astonishment and indignation. They looked upon it as some treacherous scheme to entrap them, the nature of which they were unable to unravel. They sent back the 200 sovereigns with a message that they could not sell the land, for it was not theirs to sell. But the Commissioner was instructed to persevere, and, after about two years' negotiation, he prevailed upon them to take between 3000l. and 4000l. of the public money, in the face of their declaration that the land for which it was given was not their property. And Tirerau, the principal chief, subsequently declared that he never consented to take money for the land until he was assured, not only that the Queen would not allow the owner to possess it, but that he (the owner) had received compensation from the Government, and that he was satisfied.

In reference to this transaction, a Report of a Commissioner of Land Claims, published in the Appendix to the Proceedings of the House of Representatives for 1862 (D, No. 10, page 11), has the following passage, viz.: – "Although Mr. Johnson" (Land Purchase Commissioner) "had suffered much trouble and anxiety from the opposition of Mr. Busby and the Land League, the original purchase made by Mr. Busby was a fact that could not be evaded," . . . . . . "Commissioners Godfrey and Richmond having found that the actual value of money and goods (multiplied by three) given to the natives by Mr. Busby was 831l. 9s. 3d."

One immediate result of this transaction was an attempt by the natives, who were the original owners of the land on which

TO REPUDIATE THE OBLIGATION OF A CONTRACT.

the town of Kororareka, or Russel, at the Bay of Islands, is built, to obtain a second payment for that land. The inhabitants were called upon separately, and told that in a fortnight the natives would return for payment, and that, if it was not given to them, they would seize the property in the shops. The leader of this party, named George King, was the beginner of Heke's war, by the seizure of the horses belonging to a settler named Wright – a fact of which he was accustomed to boast. The following statement in relation to it appeared in a leading article in the Southern Cross newspaper of 22d December, 1854. But the writer of it was unaware that the intended raid was prevented by the superior influence of the chief, Pene Taui, Heke's most energetic assistant in the first war, who had been conciliated by being entrusted with a large sum of money to pay his tribe, who were employed in making a road near his settlement: –

"We have at last been able to obtain precise and authentic information concerning the native disturbance which occurred, some few months ago, at the Bay of Islands. The anxiety has passed away; but it is necessary to overthrow a statement which has been assiduously circulated – namely, that it was excited by European settlers. And in this instance we have a special object, – to hinder the affair from being distorted to the advantage of Governor Grey, from being offered as a proof that he alone was able to manage the native race. For its ultimate origin was in Governor Grey's own acts and deeds; in his ceaseless attempts to excite the cupidity of the natives, called by himself 'the most covetous people in the world,' in order to enlist them as allies in his warfare against the old land claimants.

"The more immediate cause of the disturbance was the attempt of Colonel Wynyard's Government to purchase from the original native owners the land at Wangarei which they had sold, before the colonisation of New Zealand, to Mr. Busby. On this subject the following statement was made, about a year ago, by a party of natives who were on a visit in the neighbourhood of Pakaraka.

"They said that Mr. Johnson (a Government agent) had been at Wangarei with money, to purchase the land; that they refused it, on the ground of its having been already sold to Mr. Busby. Mr. Johnson stated that the matter had already been arranged between Mr. Busby and the Government, and pressed acceptance upon them. They asked for Mr. Busby's pukapuka – his written agreement – to that effect; but Mr.

DISTURBANCES THREATENED IN CONSEQUENCE OF

Johnson had it not. They observed that if he would produce the agreement, they had no objection to make; but refused to take the money until their request should be complied with. Mr. Johnson then replied, 'If you will not take the money, the Pakehas will come upon the ground without any further questions.' This led to much confusion; the natives construing this expression into a threat of taking the land, and the Government agent and the natives got angry together. The whole party were questioned in turn as to the accuracy of what had been stated by the main speaker, and corroborated his account." Our readers have already been made acquainted with the facts concerning the subsequent acceptance of a portion of the money, by a party who had no claim, the return of the money, and the final sale to the Government.

"As it appeared that double payment for land was in vogue, the cupidity of the original owners of Kororareka – those who had given that land as the price of blood to the Ngapuhis, by whom it was sold to the Europeans – was excited. Acting upon the alleged dying words of Kawiti, they proceeded in a body to Kororareka, for the purpose of demanding payment, having previously given the following notice of their intention: –

"Orauta, Hune 20, 1854.

"E kara e te Wiremu he kupu tenei naku kia koe no te hui ki Orauta no reira i korerotia ai te kupu a te Ruki kia utua a Kororareka kia rongo mai koe ko te hiki pene o Kororareka kia hoki mai ki au ko a te Paraire haere ai nga iwi katoa ki te whakarite i taua kupu.

"Heoi ano taku kupu kia koe.
"Na te Wikiriwhi Te Ohu.

"Sir, Mr. Williams, – This is my word to you from the meeting at Orauta, from whence the word of Kawiti was delivered, that Kororareka should be paid for. Do thou attend. The sixpence of Kororareka must be returned to me. On Friday the whole of the people go down to carry out that word.
"That is my word to you.

"From Wikiriwhi Te Ohu.

"This letter was immediately communicated by Archdeacon Henry Williams to the officer in command at the Wahapu, who took what precautions he was able. But the position in which the troops were located by Governor Grey is notoriously indefensible, and absolutely useless so far as the support of Kororareka is concerned.

"Now we have altogether failed in tracing up those 'dying words' to any authentic source. What we have learned is this: –

"Kawiti, in his latter years, had separated himself from his people, who were rank heathen, for the sake of quiet. Yet he found himself continually harassed by solicitations to return to

THE FAITHLESS CONDUCT OF THE GOVERNMENT.

his old ways, and to avoid importunity retired to the Kawakawa, where he was well received. Shortly before his death he visited the Resident Magistrate at Kororareka, proceeding, not from Pakaraka, as has been alleged, but from the Kawakawa, and spoke of a second payment. It does not appear that he mentioned the object of his visit to any other European. Almost immediately after this he was taken ill, and died. We are informed that he did not reach home at all, and that he left no dying injunction; he being one of the few chiefs of any note who have not left their oral testament behind them.

"This conversation with the Resident Magistrate appears to have been distorted by the claimants of payment to suit the immediate purpose into a dying injunction. But Kawiti, during the latter part of his life, had restrained the natives; nor was it until after his death that they began to use large words, They then assembled, to the number of about 400, inside the Kawakawa, having previously written to Heke's people to join them.

"It will be remembered that the member for the Bay of Islands, who had received private intelligence that a disturbance was to be apprehended, put a question on the subject to the Ministry in the House of Representatives. The answer was that the Government had received no communication on the subject. In this, we think that a certain degree of remissness was shown by the Resident Magistrate at the Bay. But after the landing from the armed canoes, a report, treating the matter lightly, was forwarded, and was produced by Mr. Fitzgerald. A second report was also forwarded, in which the following passage occurs: – 'George King [the well-known native chief] told me that it was in consequence of a second payment having been given for Wangarei.'

"This is corroborated by the evidence taken before the special committee of the Provincial Council in the inquiry concerning Mr. Grace's manifesto to the Maories. "

Other instances might be brought forward of the results upon the minds of the natives of the policy of the Government in teaching them to disregard the obligation of contracts which they themselves held sacred.

The following letter appeared in the Southern Cross newspaper of October 9th,. 1857: –

"To His Excellency Colonel Gore Browne,
"Governor-in-Chief &c. &c. &c.

"Auckland, 25th October, 1856.
"Sir, – It was my intention, immediately on learning that

RESIGNATION OF A JUSTICE OF THE PEACE

you had given your assent to 'The Land Claims Settlement Bill, 1856,' to have represented to your Excellency my fears that the proceedings of the Commissioners, to be appointed under that enactment, might, a second time, disturb the peace of that district where I have lived during the last twenty-three years, and might place me in a position where my duties as a Justice of the Peace might conflict with a higher duty; and to have begged that your Excellency would be pleased to relieve me from a position so painful, by removing my name from the Commission of the Peace. But I thought it would be more courteous to your Excellency to defer doing so until I should be able to make your Excellency more fully aware of the grounds of such a proceeding.

"This I now beg to have the honour of doing, by requesting your Excellency's perusal of the accompanying pamphlet: – 'THE FIRST SETTLERS IN NEW ZEALAND, AND THEIR TREATMENT BY THE GOVERNMENT.' It has since occurred to me to suggest to your Excellency that the Commissioners might, without compromising the objects of the Legislature on the one hand, or the public peace and the honour of the Government on the other hand, so proceed in the discharge of their duties as to furnish the Government with all the information necessary to the full understanding of the questions involved, before it should commit itself to carry out a policy which nothing but a supposed necessity could ever have originated – a necessity which never did exist.

"I would respectfully suggest to your Excellency that the Commissioners who are authorised to appropriate certain portions of the lands reported by the Commissioners under the Ordinance, Session 1, No. 2, to have been validly purchased from the natives to the purchasers thereof, and to take possession of the remainder, as the public demesne, should be instructed to abstain from giving a decision in any case until they shall have collected all the information necessary for a decision in every case; and that they should then make a general report to the Government, setting forth not only the extent, but also the quality and value, of the land which might in each case be thus gained to the public.

"While making this recommendation, which would put the expediency of carrying out the provisions of the Act upon the lowest and narrowest ground, namely, that of the expenditure of money, and the return for money expended; and would, as I firmly believe, demonstrate that, even on that ground, if those provisions are to be carried out without disturbing the public

TO AVOID COMPLICITY.

peace, the balance of profit and loss would be on the unfavourable side, I would guard myself against appearing to admit that in my opinion any amount of gain to the public revenue, or of addition to the public domain, could justify a breach of the public faith, or of those laws of morality which are universally admitted.

"I cannot illustrate my meaning better than by referring to a case which came to my knowledge by a conversation with an old and respectable settler at Wangarei on my voyage homewards from my last visit to Auckland. I have no doubt whatever that what I am about to state to your Excellency is substantially correct, although, as I made no note of the conversation, it may not be so in one or more immaterial points.

"The North Head of Wangarei, with the mountains behind it, to the extent of several thousand acres, had been reported by the Commissioners under the Ordinance, Session 1, No. 2, to have been validly purchased from the natives; but in this case, as well as in others, the price paid bore a proportion to the quality of the land, as well as to its extent; and the quantity assignable by the Commissioners, according to the provisions of the sliding-scale attached to that Ordinance, was only 414 acres. This quantity, 'more or less,' according to the boundaries specified by the natives, and described in the Commissioners' Report, was granted by Capt. Fitzroy to the assignees of the original purchaser.

"About twelve months ago these parties were called upon, under the provisions of the Ordinance, Session 10, No. 4, to select 414 acres, in order that the Government might appropriate the remainder; and they refused to make the selection. Under these circumstances, the Commissioner under that Ordinance proceeded to Wangarei, and, having procured the natives who sold the land to point out the boundaries, directed a surveyor to measure off 414 acres from the boundary line – an undertaking which was all but impracticable, from the broken character of the ground. Mr. Commissioner Johnson then paid to the natives the sum of 200l. This was done in the presence of my informant, who said to the chief – 'Pohe, you know as well as I do that you are wrong in taking this money.' Pohe replied: 'O – – – , 76 the wrong is not with me. I showed them the true boundary of the land we sold to Mr. Mair, but they say Mr. Mair is only entitled to 414 acres, and they insist upon giving me this money for the remainder. Would not you, O – – – , take money if it were forced upon you?

"If such proceedings as these are to be resorted to, it is possible that the provisions of the Act might, in most cases, be

DEALINGS OF THE WAKEFIELD POLITICIANS

carried out vithout much disturbance; but the Government must be prepared for the assertion of a right, on the part of the natives, to additional payments in all other cases, as well as in those which may be affected by the provisions of the Act. There would still, however, remain the danger that old disputes respecting the titles of different parties to the same land, which were set at rest at the time of the purchase, might be revived by a fresh payment. Nor is it possible to estimate the ulterior results of thus teaching the natives, over whom the Government have no efficient control, that the most solemn acts of public functionaries are to be set aside by their successors, and that obligations, which the natives consider to be of the most binding character, are to be cancelled upon grounds, the justice of which it is impossible for them to appreciate."

I have, &c., &c.,
(Signed) "JAMES BUSBY."

From the date when the Constitution of 1852 came into operation, the New Zealand Colonies have been in the hands of politicians of the Gibbon-Wakefield school, and, in their dealings with the land question, full well have they fulfilled the traditions of their apostle. In his first message to the Assembly, Governor Browne called their attention to "the many vexed questions connected with land claims;" and referred to them various petitions and communications on the subject. A Committee was accordingly appointed, which received evidence of the injustice with which the Northern settlers had been treated; but the report which the Committee brought up made no reference whatever to that evidence. Alluding to "those evils which a system of general compensation has inflicted upon other provinces, and which, to a certain extent, must be involved in the re-settlement of these claims," they accepted the arbitrary provisions of the Land Claims Ordinances, and the confiscations made by Sir George Grey, as decisions which were to remain unquestioned; and thus, while the public lands at the South were bestowed upon the New Zealand Company's settlers to make good the shortcomings of the Company, each settler receiving a gratuitous grant of 150 acres of public land in addition to each 100 acres which he had purchased from the Company, but to which the Company had not established its claim, the Northern settlers were doomed to be deprived of the lands to which they had proved an undisputed title.

The Report of the Committee gave, in elaborate detail, a

WITH THE LANDS OF THE NORTHERN SETTLERS.

history of the unprecedented proceedings of the Government, in relation to the Northern settlers, quoting such parts of the Secretary of State's instructions as would appear to justify those proceedings, but omitting what would prove them to be a violation of the public faith. For instance, the Report states that "Her Majesty, by Royal instructions of 14th August, 1839, declared that no titles to land not proceeding from, or recognised by. Her Majesty should be recognised;" but it omits the sentence which immediately follows that declaration, viz.: – "You will, however, at the same time, take care to dispel any apprehensions, which may be created in the minds of the settlers, that it is intended to dispossess the owners of any property which has been acquired on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community." 77 The compensations provided for by the bill, in cases which were admitted to be entitled to compensation, were of such a character as to be a mere mockery. Clause 32 of the Act provides that "in estimating the quantity of compensation land to be given as last aforesaid, the Commissioners shall estimate the same by the amount realised upon such alienation of the land comprised in the original claim, but in no case shall the original land be estimated as having realised more than one pound per acre, thus binding up a lie in the words of an Act of Legislation; calling that compensation which is not compensation. What a cruel mockery this provision of pretended compensation proved to be, was evidenced in the case of the widow Forbes, whose title to nine and a half acres had been certified by the Commissioner, whose Report was approved by the Government, and notice given in the Gazette that a grant for it was in preparation, but which was afterwards sold by the Government. By this clause she would have been entitled to compensation to the amount of 8l. 10s. for land which, on the opening of the Manukau harbour to navigation, was valued at 850l.; that is, 8l. 10s. was to be compensation, which in ordinary language means equivalent for 850l. But another clause of the Act (33) precludes the widow from receiving even this 8l. 10s., because, under a threat of being deprived of the whole of her property, she had consented to receive a grant of 1 acre, 1 rood, 35 perches, and 13l. in money to cover expenses of survey, &c., in lieu of 9 acres, 3 roods, and 25 perches, to which she had established her title. If "righteousness exalteth a nation," what was to be expected in a country where men who were capable of such acts

SEIZURE OF THE SETTLERS' LANDS

as these were invested with the powers of legislation and government? In 1858 the General Legislature passed another Act to enlarge the powers of the Commissioner who had been appointed under the Act of 1856; but this brought no relief to the mass of the sufferers. On the whole, in the course of twenty-five years, during which the colony has been in a state of agitation and rebellion, owing to the dealings of the Government with the land, eight Ordinances have been passed under the first charter, including one disallowed by the Queen, and two Acts of Assembly, under the present Constitution, in the vain attempt "to settle or stifle" these claims, and six other bills were brought in between 1854 and 1863, which did not pass. And to crown all, in the same session in which an Act was passed to change the aboriginal title over 19 millions of acres into a legal title, thus, by enabling the Maories to sell land to individuals, increasing its value fivefold, a Committee of the House of Representatives recommended that 204,243 acres, which the Government declared to be demesne of the Crown, should be transferred to the provincial authorities for sale, after a Commissioner had reported that the land in question had cost those who purchased it from the natives, before New Zealand became a British settlement, 5s. 6d. an acre. The following are the passages from the report referred to: – "The total amount of money or money's worth which their purchases cost the claimants was, in round numbers, 131,000l.; the total area their claims were found to contain was 474,000 acres. Looking, therefore, at the transactions in the gross, it may be said that the land cost the claimants at the rate of 5s. 6d. per acre up to the point when the Government should either make them grants or purchase their interest. I have often heard it said that it would have been far better for the claimants to have thrown up all their land at once, and bought what they wanted from the Crown; and I think the facts I have just mentioned go far to justify that saying." 78 In another part of the Report (page 18) the Commissioner states that "in 1862 you may buy finely grassed land from the Crown for 5s. an acre." "In the return will be found the acreage awarded or granted in each case. This, including the survey allowances granted under the Act, amounts in the whole to 292,475 acres, and will, probably, reach the total quantity of about 315,000 acres, if no alteration be made in the principle of the Acts." 79 "It will be seen that

DENOUNCED BY THE NATIVES.

the total number of acres reverting to the Crown upon the settlement of the land claims is 204,243, of which the greater portion is situated in the vicinity of the Bay of Islands." 80

It seems a strange fatuity which should lead men thus to persist in attempting to rob their countrymen, under the forms of law, of the property which, under the provisions of the same law, was proved to nave been purchased from the rightful owners at its full value, or at more than its full value; and it seems the more inconceivable seeing that the Government have never dared to attempt to take possession of a single acre, unless in one or two instances in which they bribed the natives to be quiet by giving them money under the pretence of a second payment for the land; for the natives have invariably told their Commissioners that if it was left to the original purchasers they would be satisfied; but as the Government had no claim to it they should not be allowed to take possession of it.

Mr. John White, of the Native Secretary's Department, now a Resident Magistrate at Wanganui, was sent to Hokianga in 1856 to persuade the natives of that district to abstain from taking any part in a dispute at Kaipara, which was likely to lead to a native war, a mission in which he perfectly succeeded. All the influential natives of the district were assembled on the occasion; and when the decision was arrived at that they should take no part in the Kaipara dispute, they introduced the question of the lands which had been exchanged by the settlers with the Government for land near Auckland. They said they wished the boundaries of those lands to be pointed out before all the old people died off, in order to avoid disputes between the Government and their children. But they wished also to know what was to be done with the land which they had sold, but which the Government would not allow the buyers to possess. "If," said they, "these pieces of land are left in the possession of those who bought them, it is right; but if the Government thinks to possess them, we tell you plainly that they shall not be allowed to possess them."

The facts related in the foregoing narrative have, for the first time, been brought together and made public. They are a selection, only, from voluminous details of proceedings, many of which, singly, were sufficient to destroy the confidence of the natives in the intentions of the Government towards them; but, taken together, they were calculated to make confidence impossible. It will doubtless be supposed by many that such proceedings

SEIZURE OF LAND NEVER ATTEMPTED WHILE

affecting the Queen's native-born subjects, alone, were insufficient to drive the Maories to revolt unless the conduct of the Government towards themselves had been unjust and oppressive. But there is a singular absence of any grounds for such a supposition.

In no case, unless in that of the Widow Meurant before referred to, did the Government attempt to seize into its possession any land which the Maories had not sold. It was doubtless a grievance that the local Government was not prepared to purchase the land which the Maories were desirous to sell. But before Heke's rebellion broke out the natives of his part of the country had formed themselves into a league to prevent any more land from being sold. Of this league Heke was the head, and the punishment of death was threatened against any person who should so much as make an offer of land for sale. There can be no doubt that Heke was, in part, moved by ambition to place himself at the head of his countrymen, and to take the initiative by cutting down the flagstaff, but in this he had no other design than to protest against the encroachments which evil-minded and inconsiderate persons had led him to expect; and had the confidence of the natives in the Government not been destroyed, Heke's ambition and the influence he possessed over his countrymen might have easily been turned into a beneficial channel. So far from having any ill-feeling towards the settlers, it has been shown already that he led an expedition to resist any interference with the rights to land which his tribe or their connections had sold to the settlers, when this right was disputed by a tribe which had, at an earlier period, been in possession of the district. The first two men who fell in the action which ensued were shot down by Heke with his double-barrelled gun. Those of the settlers who remained upon their land were not treated by the natives as enemies, and the rights of property were respected in a degree which it is to be feared is seldom the case in countries which are the seat of war.

These are facts which have been unknown to, or ignored by, most persons who have given opinions as to the causes of the Maori outbreaks. There has always been a singular unwillingness in the colonists to discuss any matter connected with the first transactions of the Government. The subject was hateful to some from complicity with those transactions; to others, from an unwillingness to encounter the labour necessary to understand them; to a few, perhaps, from a sense of shame; and to some, from having become, probably without any fault

IN POSSESSION OF THE NATIVES.

of their own, possessed of property of which the rightful title is in another.

That the missionary body should sympathise with the natives was to have been expected from the relations which subsisted between them. The missionaries were necessarily best acquainted with the best side of the Maori character, and were willing to look upon their election of a King, and other proceedings connected with it, as an endeavour after a more improved social state, which it no doubt was, in the best of them, rather than as the result of ambition in the leading chiefs, and the pride of enterprise and hope of plunder in the younger men. In a lecture, delivered in Auckland in 1861, by an old Wesleyan missionary – after alluding to the difficulties which lie in the way of a just estimate of the Maori character as affected by the teachings of Christianity – he says: –

"I bear in mind that those who are related to our native people as their Christian teachers, and others whose philanthropy and Christian benevolence have led them to feel deeply interested in their welfare, may occasionally be in danger of regarding with too sanguine feelings the state of our native Churches, and of over-estimating the position they are entitled to hold in the family of Christianity; yet I believe those who fall into this error are very few, and that a much greater number of our countrymen are in danger of being led, by their prejudices, altogether to undervalue the infantile Christianity of the natives, and to reject their claim to the humblest place in the Christian brotherhood."

As an instance of the power of Christianity over the minds of the Maories, he alludes to "the signal homage they render to Christian law by the renunciation of polygamy, and the manumission of their slaves." "I believe," he says, "there are very few, beyond the circle of those who have lived among them as missionaries, who can properly estimate the high value which the chiefs of New Zealand set upon the Gospel when they surrendered these institutions in obedience to its dictates. I need not say that slavery existed in England long after its reception of Christianity, and even to a very late period; and we know by what a struggle, and at what a cost, she extinguished it in the colonies." "Still, is it too much to say that the Christian chiefs of New Zealand laid on God's altar a costlier offering when they restored their slaves to liberty, and rendered it necessary that thenceforward themselves and their families should take up the menial and laborious employments that had been hitherto performed by their slaves?"

APOLOGY FOR THE NATIVES IN

"When Europeans increased in the land, and the natives beheld numbers of men, the countrymen of the missionaries, and their equals in intelligence, who 'slighted the institutions of Christianity and ignored its laws; who neither coveted its rewards nor feared its threatenings,' was it wonderful that these facts, which appeared to overturn the whole foundation on which their faith rested, should unsettle their faith and leave them an easy prey, not only to their former corruptions, but also to the many new and powerful temptations to which they had become exposed?"

It was not the part of a missionary, nor was it necessary to his case, to refer to the Newgate morality which distinguished the conduct of the Government in its first transactions, which so nearly concerned the natives.

Under the influence of feelings such as these, the Bishop and many of the missionaries have striven to make out a case in favour of the natives, by showing that their endeavours to establish a separate nationality was the natural result of the neglect by the Government of the duty which it owes to them as subjects, and by its dealings in respect to their lands.

A letter which was addressed by the Bishop of New Zealand, with two archdeacons and several other clergymen of his Church, to Governor George Browne, may, however, be considered rather in the light of an intercession on their behalf than as a justification. It is stated in that letter-

"1. That at the time of the breaking out of the war at Taranaki, there was no part of Her Majesty's dominions in which life or property was more secure than in the districts bordering on the Waikato River.

"2. That the native inhabitants of those districts, and especially those on the Lower Waikato, have always maintained friendly relations with the colonists.

"3. That the native inhabitants of those districts have shown a remarkable aptitude and willingness to receive English institutions, under the guidance of officers appointed by the Government.

"4. That Potatau, the so-called native King, was the firm friend of the English Government from the time of Governor Hobson to the day of his death.

"5. That neither he nor his son ever encouraged their people to take any part in the war at Taranaki, nor have participated in any plunder from English settlers.

"6. That the same statement applies to William Thompson, Tarapipipi, who is commonly reputed to be the chief supporter

REBELLION BY BISHOP SELWYN AND HIS CLERGY.

of the native King." [That he had always been a friend to the English people; of this the letter specified several instances.]

"7. That a Committee of the House of Representatives has investigated with the greatest care and patience the causes and history of the King movement, and recognises its true character as an effort to obtain law and order.'

"8. That the main causes of distrust and irritation are believed to be these –

"1. The uncertainty of the relations between the two races, and
"2. The system of land purchase.

"9. On the first point Mr. Fortescue has admitted, in his speech in the House of Commons on the 11th April, as reported in the Times, that

"The Governor of New Zealand is 'obliged to act under a Constitution which appears to have been framed in forgetfulness of the large native tribes within the dominions to which it was intended to apply.'

"10. And we observe that your Excellency has stated in your Memorandum of the 25th May, 1861, section xi., that

"'Some of the most populous districts, such as Hokianga and Kaipara, have no magistrates resident among them; and many, such as Taupo, the Ngatiruanui, Taranaki, and the country about the East Cape, have never been visited by an officer of the Government. The residents in these districts have never felt that they are the subjects of the Queen of England, and have little reason to think that the Government of the colony cares at all about their welfare.'

"And, further, in section xii. of the same Memorandum: –

"'In New Zealand the Government is and always has been unable to perform its duty, for want of a sufficient number of agents trained and qualified for the service required of them.'

"And, further, that unless the Native Department be 'entirely remodelled,'

"'The Government will never be able to take its proper part in establishing institutions for the native race, or obtain any real hold upon their confidence.'

"11. On the second point, namely, the system of land purchase, we observe with satisfaction that your Excellency, in your memorandum of the 15th May, 1861, section xvi., has given your opinion that 'the system of purchasing land requires alteration.'

SUGGESTIONS TO ALLAY THE

"And, again, section xvii., No. 13: –

"'Alter the system of land, and for the present purchase only in districts which remain undisturbed.'

"12. We have no wish to say more on this subject than to express our opinion that the existing system of land purchasing has been one main cause of suspicion and dissatisfaction in the minds of the natives.

"13. We are glad to find also, from a letter to your Excellency of the 9th of May, 1861, that the Judges of the Supreme Court are of opinion

"'That a competent tribunal might probably be established by the formation of a land jury, selected by lot or otherwise from members of the various tribes in previously defined districts, nominated by such tribes as are competent to act in the capacity, to be presided over by a European officer or Commissioner (not being an agent of the Crown for the purchase of land) conversant with the Maori language, and assisted, if necessary, by a native assessor, and whose duty it should be merely to propound the questions for the decision of the jury, to record their verdict, and to administer oaths to witnesses.'

"We are of opinion that the want of some such tribunal as that proposed by the judges is one main cause of dissatisfaction in the minds of the natives."

The letter concludes by the expression of an opinion that the suggestions above quoted from the Governor's Memorandum and the judges, would in a great measure remedy the unsatisfactory state of the relations between the two races, and with the tender of their influence in obtaining the co-operation of the natives.

The facts and opinions suggested in the above letter are fairly subject to the following observations: –

There can be no doubt of the truth of the description given of the state of Waikato as regards the security of property, and the friendly disposition of a part of the tribes; but, unhappily, amongst "a people without law and without a prince" – which was pre-eminently the characteristic of the New Zealanders – it is at any time in the power of a very insignificant tribe, or even of an individual, to involve a large district in war. Sir William Martin gives an apt illustration of this. He says: – "On one occasion I heard a discussion, on the shore of the great lake at Rotorua, which was prompted by my presence there is no doubt, but not by any words of mine." (Sir W. Martin was at the time Chief Justice of New Zealand.)

DISSATISFACTION OF THE NATIVES.

"The speaker contrasted, in strong terms, the law of the pakeha with a then recent war between Rotorua and Waikato, in which some five hundred lives had been lost, whilst the murderer whose crime had caused the war was still living." 81

As to "their aptitude and willingness to receive English institutions," there can be no doubt that the more intelligent of the chiefs fully appreciated the importance of law and order, and a few perhaps might have acquiesced in its administration by British functionaries; but the feeling of the majority was far different. A very able compilation or abstract of English law had been prepared for them, and circulated amongst them in their own language: and the compiler of that abstract was placed amongst them as a resident magistrate, whom they were quite willing to receive as a professor of law, "to teach them the law as the missionaries taught them the Gospel;" but nothing was farther from their thoughts than submission to it; and when the magistrate attempted to put the law in force, the Government was obliged to withdraw him, a Minister stating in the House of Representatives that his continuance would have provoked a war. William Thompson Tamehana explained their feelings to Mr. Fox in the terse expression, "We like your laws; it is your men we do not like." The tribes of Waikato above all others were favoured by the Government with loans or gifts of money to build mills, and for other purposes to promote their social improvement, as well by the missionaries both of the Church and Wesleyan Societies, in the provision made for their religious instruction and for the education of their children; but their jealousy of the Government was such that they kept the extensive territory in which their cultivations were situated sealed against the occupation of the colonists, although they themselves could not use one-twentieth part of it.

The Report of the Committee of the House of Representatives, to which the letter refers, was composed of persons who had little knowledge of the Maori character, and their Report was far from doing justice to the evidence which they received. The object of the Ministry and of their supporters was to obtain the management of native affairs, and the extensive patronage which it would open up to them. The most valuable evidence given before that Committee was that of Sir William Martin, a portion of which would have formed the best report which that Committee could have brought up. It is as follows: – "I think that the attempt (to build up civil institutions throughout the island) should be postponed till peace is established, and

UNCERTAINTY OF THE RELATIONS OF THE TWO RACES

so established as to create confidence." To the question: "But how would you proceed to plant institutions in the first instance!" he replies, "By means of personal influence. The first confidence must be a confidence in persons. There are three stages or periods in the course of the work. First, there is a movement in the national mind; a sense of need, without the knowledge or means requisite for supplying that which is needed. Then comes personal influence and guidance, giving a right direction to the movement, and gradually shaping out some institutions fitted to the circumstances. In the third stage the institution is in operation, satisfying the need, and thereby producing confidence and attachment towards itself, and towards the whole system, the whole government, of which it is a part. The true use and object of personal influence is to establish something better than itself, and more permanent."

As a series of abstract propositions all this is excellent; but, unfortunately, the necessary foundation of personal character was wanting. The natives characterised the Ministry as "the men with two faces," and the missionaries themselves were brought into suspicion by their endeavours to produce a confidence in intentions which were belied by all previous evidence.

The letter states a belief that the main causes of distrust and irritation are –

"1. The uncertainty of the relations between the two races and the system of land purchase."

The former proposition is supported by a quotation from a speech of Mr. Fortescue: that the Governor of New Zealand is "obliged to act under a Constitution which appears to have been framed in forgetfulness of the large native tribes within the dominions to which it was intended to apply." But this dictum of an Under-Secretary for the Colonies is contradicted by an express provision of the Constitution Act. The words of clause 71 are as follow: –

"71. And whereas it may be expedient that the laws, customs, and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves, in all their relations to and dealings with each other, and that particular districts should he set apart within which such laws, customs, or usages should be so observed: it shall be lawful for Her Majesty, by any letters patent to be issued under the Great Seal of the United Kingdom, from time to time to make provision for the purposes aforesaid, any repugnancy of any such native laws, customs, or

SUGGESTED AS A GROUND OF DISSATISFACTION.

usages to the law of England, or to any law, statute, or usage in force in New Zealand, or in any part thereof, in anywise notwithstanding."

It was impossible for the Imperial Parliament to make more effectual provision for a state of things which they supposed to exist, but the local Government left this provision totally inoperative, simply because, in a state of things where every man from infancy onwards had never felt the obligation of submitting his will to that of another, or recognised the right in any one to dictate to him what his conduct in any circumstances should be, there was neither law, nor usage having the force of law, to sanction or maintain.

It is not a "reverence for the constable's staff" that preserves order in countries where law is established, but the conviction that there is a power behind it, to which resistance would be in vain; and until the same conviction is established in the minds of the Maories, it is mere weakness to suppose that they who have never known law will submit to its penalties. Laws are made for the lawless and disobedient, and the magistrate who administers law must not only be able to command the constable's staff, but the sword of the State, in order to save both law and its administration from contempt. Nothing could be more unwise than the appointment of magistrates to assume over the Maories a jurisdiction which they would not acknowledge, and to which they could not be compelled to submit. The magistrates, who were appointed under the Resident Magistrates' Ordinance in places where the settlers were numerous, had peculiar powers to exempt the natives from the ordinary penalties of law. They might dismiss a charge against a native, "although a felony may have been proved." In civil cases the jurisdiction was altogether one-sided. There was no obstruction to the recovery of a claim made by a Maori against a European; but in the opposite case a judgment was nugatory.

These appear to constitute a sufficient answer to the observations quoted from Governor Browne, that magistrates have not been appointed in populous districts, and that the New Zealand Government has been unable to perform its duty, owing to the want of a sufficient number of agents trained and qualified for the service required of them; and that the Government will never be able to take its proper part in establishing institutions for the native race, or obtain any real hold upon their confidence.

It is remarkable, or rather would be so, if the proper objects of government had not so seldom in New Zealand coincided

NEGLECT OF THE GOVERNMENT

with the objects of its functionaries, that no attempt has ever been made to improve the social condition of the Maories, by encouraging them to adopt some simple form of municipal organisation which, under the guidance of a Government Commissioner, but without the assumption on his part of authority, might be worked by themselves.

In one of his despatches to the Secretary of State (No. 39, dated 6th Dec, 1861), Sir George Grey states that "ten years ago (viz., in his despatch No. 121, of 30th August, 1851) the necessity of introducing simple municipal institutions amongst them was pointed out." But that despatch contains no such proposition, although in another despatch (No. 97, dated July 17, 1851) he states that by the removal of a previously existing disqualification – that of not being able to read and write the English language – he had enabled them, as well as the German settlers, to vote for burgesses in English corporations, if possessing the necessary property qualifications.

In 1856 a Commission was appointed by Governor Gore Browne to obtain evidence upon the customs of the natives, on which occasion a plan for establishing native municipalities was submitted to the Commission by a very old colonist, of many years' experience of Maori character, but no notice was taken of it.

It was proposed by this plan to induce the natives to organise themselves into municipalities, by the offer of assistance and advice. Its characteristics were –

To avoid the assumption of any jurisdiction, seeing that it might provoke resistance, and could not be enforced.

To avoid the use of Maori expressions, seeing that they convey ideas incompatible with the objects to be attained.

To provide such salaries as would be an inducement to the chiefs to be elected, and to make the elections annual, in order to afford the opportunity to each of the leading men to be elected in his turn, with a proviso, for the same reason, that no one should hold office two years in succession.

Each considerable tribe consisting of several sections, it was considered that the offices of Mayor and Aldermen would become objects of ambition to all the men of influence, and would enlist them and their connections in giving efficiency to the organisation.

Amongst themselves the Maories have no ideas of authority implying a right in one person to command, and the duty of another to obey. They have therefore no words to express such ideas. It was consequently considered necessary to introduce new ideas by new words, and not to perpetuate the old

TO ORGANISE NATIVE MUNICIPALITIES.

ideas by using words which only apply to the old ate of things; for example, the word mayor would with them be the same as major. They know by observation that the office of major implies command which secures obedience, and they would naturally attach these ideas to the word.

By way of assistance, the Government to appoint a Commissioner, without any magisterial authority, whose office would be, to explain the necessary steps to prepare and complete in each case the proposed organisation, and to advise the persons elected how to act in the discharge of their duties: by providing Books of Record, in which the nature and circumstances of each case, and the decision upon it, should be entered in a tabular form by a clerk of their own election; the payment of salaries being made subject to the report of the Commissioner that the necessary formalities had been adhered to.

The books to be examined periodically in the most public manner, and any erroneous proceeds or decisions pointed out, with a suggestion in each case of what would have been more just and expedient.

It was from want of arrangements of such a character as these, adapted to the actual condition of the Maories, that the "Institutions of Native Government," introduced by Sir George Grey in 1862, proved so entire a failure. The appointments of "assessors" and "wardens" were seldom satisfactory to the majority. The natives knew well that these functionaries were absolutely incapable of the duties required of them by their appointment, and those who had nothing to say in their election did not feel it incumbent upon them to support them. They could see no object in giving salaries unless as a bribe to secure good behaviour; and they could discover no reason why such an inducement should not be given to them all.

With reference to the supposition that "the existing system of land-purchasing has been one main cause of suspicion and dissatisfaction in the minds of the natives, it may be observed that it is scarcely borne out by facts, as will appear from an examination of the published reports of the Land Purchase Department. From the time that the Commissioners were furnished with sufficient funds, there does not appear to have been any insuperable difficulty in effecting purchases, except in those districts which were sealed against the intrusion of the pakeha by a Land League. The opposition to the mode of obtaining land, provided for by the Treaty of Waitangi, was rather that of speculators, who calculated upon obtaining an

DIFFICULTY OF DEALING WITH TITLE

estate on better terms by direct purchase from the natives than of the natives themselves.

In the uncertainty arising from rival claims to the same land, there could be no means so effectual in preventing disputes as the prohibition of private individuals from treating with the natives. The attempts of different individuals to deal for the same land with different tribes, or different families of the same tribe, could scarcely fail in most cases to create disputes, and in many cases be the cause of bloodshed. The proposition of a "competent tribunal" to deal with native tenure ignores the fact that the decisions of such a tribunal would only be acquiesced in by the party of natives which they might happen to favour. One of the judges of the Supreme Court was sent to Taranaki in 1861, under a special Commission, to inquire into a disputed title there; but the results of that mission only supplied another proof, in an aggravated form, of the folly and mischief of assuming a jurisdiction which would not be submitted to, and could not be enforced.

Rights of so imperfect a character as those of any tribe or family of natives to land could only be settled by negotiation. They could scarcely be made the subject of jurisdiction, even if supported by authority to maintain it. The agent of the Queen could take his time in the investigation of the pretensions of the different claimants, and leave them to compromise and settle their relative rights amongst themselves. There was no resource left them but to come to such an agreement, as no purchase would be effected until all parties had agreed. There could be no other mode so effectual in preventing internecine wars, and of securing to the weaker parties a due consideration of their claims. Nor had the natives any difficulty in understanding the reasonableness of their being paid a lower price for land than it was necessary to re-sell the best portions of it for, in order to cover the expenses of survey, road-making, and other improvements, in the advantages of which the natives who sold the land participated; and it is remarkable that the passing of an Act to create a legal title in favour of the natives has failed to conciliate them, or to disarm their unconquerable suspicions. These observations would tend to show that the letter of Bishop Selwyn and his clergy has failed to make out any grievance which could furnish grounds to justify the natives in their rebellion.

Although these pages have begun to assume the dimensions of a book rather than of a pamphlet, to which it was intended to restrict them, yet the importance of the subject requires that

SO IMPERFECT AS THE MAORI TITLE.

some attention should be given to a plea which has been put forth, so late as 1864. on behalf of the natives, by Sir William Martin, another of their firm friends, in a paper which has been laid before Parliament. 82

Sir William Martin says of the statements contained in this paper that "it may be said, with some show of truth, that this is a one-sided statement; it is in some sense one-sided; it is the setting forth of that side of the question which is constantly dropt out of sight, while the other is made as prominent as possible; yet if ever we are to see our way to a policy that shall heal the troubles of this island, we must consider both sides: our policy must be fitted to the facts as they are in truth, not as we desire them to be." But Sir William Martin's views are one-sided in an equally important sense, as he leaves out of sight the very point upon which the whole question may be said to turn. In his evidence already quoted, he says that personal confidence must be the ground-work upon which the improvement of the Maories must be built. In his present paper, he states: – "In saying this I have no intention to cast blame upon any one. It would be an ill use of our present troubles to find in them the means of assailing the characters of our public men. In fact, all such considerations would lead us away from the point to which I am looking, which is not the comparative merits of our public men in our eyes, but the way in which administration, taken as a whole, must have presented itself in the view of the natives." But in saying this. Sir William Martin seems to forget that he himself has made confidence in our public men, the very foundation upon which any healing measure must be built, the only means of disarming what he calls "our general adversary, the distrust so widely spread in the mind of the native population." This is truly the main point for consideration; for while the men whose conduct has brought on all these troubles continue in power, it may well be asked if any acts of administration can restore that confidence which, he tells us, is the first stage upon which you must proceed to build up civil institutions. The passage referred to is so important that it will well bear to be quoted a second time.

In answer to the question, "But how would you proceed to plant institutions in the first instance?" he replies, "By means of personal influence."

"The first confidence must be a confidence in persons. There are three stages or periods in the course of the work. First, there is a movement in the national mind; a sense of need,

SIR W. MARTIN'S OPINIONS ON

without the knowledge or means requisite for supplying that which is needed. Then comes personal influence and guidance, giving a right direction to the movement, and gradually shaping out some institutions fitted to the circumstances. In the third stage, the institution is in operation, satisfying the need, and thereby producing confidence and attachment towards itself and towards the whole system, the whole government, of which it is a part. The true use and object of personal influence is to establish something better than itself, and more permanent."

Any view of the question which leaves out this essential characteristic must be imperfect. Ignoring this, Sir William Martin attempts to make out a justification for the Maories on the ground "that they have not, as a nation, sinned more against us than we, the superior and protecting power, have against them." The plan of the present work, which was intended to show the real cause of the distrust of which Sir W. Martin, as well as every one else who knows anything of the matter, admits the existence, will not admit of a full examination of his opinions and arguments, however much such an examination may be due to his personal character, and to the disinterestedness of his labours. Nevertheless, its object would be incomplete without showing shortly what may be said in opposition to the views he expresses in relation to the most important questions at issue – and this is of the more importance, as the statements of Sir W. Martin and the Bishop and clergy are quoted in England as decisive upon the points to which they relate. The first question examined by Sir William Martin is, "The relation of persons of the native race to the Crown of England? Are they subjects or foreigners?" On this, he says, depends the legal right of the Crown to confiscate their lands. If foreigners, their land may be obtained by conquest; if subjects, only by operation of law – that is, on conviction of treason or by act of attainder. As connected with this relation of the natives to the Crown, Sir W. Martin asks – "How far are lands holden by persons of the native race of these islands, according to native tenure, subject to the English rule of forfeiture to the Crown. The case stands thus: – No native can, in any way, enforce any right of ownership or occupation of land held by the native tenure in the Courts of the colony. The native is excluded from the political franchise, even in cases where there is in fact a right of individual occupation, on the ground that his right, whatever it might be, is not, in the technical sense, a 'tenement.' The native owner receives in respect of such lands from our legal system no protection; from our political system no privilege. Is he subject to the severest penalty

CONFISCATION OF NATIVE TITLES.

imposed by our system, that of forfeiture?" Of the actual relations of the natives to the Crown there can be no doubt. By an express provision of the Treaty of Waitangi, (they are made British subjects. But the specific provision of the same treaty which refers to their lands places their titles in the category of aboriginal titles, of which our Courts cannot take cognizance. Their titles rest altogether upon the provisions of a treaty of the conditions of which the Crown is the sole judge. Their case is altogether exceptional, and no rules of law, either municipal or international, are applicable to it. If, therefore, it should appear to the Crown that the conditions of that treaty have been violated or even rendered nugatory by the conduct of the natives, is the Crown bound to a literal observance of the provisions of the treaty, when the consequences would be the very reverse of what the treaty was intended to secure – namely, the peaceable settlement of the country and the adoption of the Maories as fellow-subjects of the settlers, whom the Crown could not prevent from settling in the country, but from whom, being settled there, it could not withhold its protection?

It seems not difficult to understand that this is a case which transcends the ordinary rules of law, and must be dealt with by the lex suprema, solus populi, and, in the first instance at least, by the prerogative of the Crown, through the Governor representing the Crown. If this be a correct view of the case, it is no further necessary to notice Sir William Martin's observations on the illegality of the Acts of the local Legislature confiscating the native lands, than to say that if he had been as attentive to the proceedings of that Legislature in regard to other matters as he has been in regard to matters affecting the natives, he would have known that it was no new thing for that Legislature to enact illegal statutes, although in no other case could the assumption of illegal powers be attended with so much mischief.

In relation to Sir W. Martin's observations that in respect of such lands – that is, in relation to the territory over which the native title has not been extinguished – the native owner is excluded from the political franchise, it ought to be borne in mind that there is scarcely a single native who might not acquire the franchise by building upon his land such a structure as it is within the ability of any native of mature age and ordinary strength of body to erect; and that the Government have always been anxious to give a grant to any native for a portion of the territory, and thus to place him on the same footing as English settlers, on his selling his aboriginal titles to the

THE GOVERNMENT WITHOUT POWER TO MAINTAIN

Government. It is true that Sir William Martin complains justly that grants which were promised "remained unfulfilled during the whole period from 1853 to 1862," of which cases there were not less than twenty-two in the single province of Wellington. This was owing to some technical difficulty which could only be got over by a legal enactment. Doubtless this was a grievance and a cause of suspicion, but is only one case of many in which the proper objects of legislation were lost sight of, owing to the necessities of party government.

"Having sketched the relation of our government, or non-government, to the native population in general," Sir W. Martin "proceeds to consider the same subject in relation to the two districts which have become the principal seats of disaffection and disturbance – first Taranaki, and then Waikato." He states that "in the August of 1854 a feud broke out in the neighbourhood of New Plymouth, which continued to rage for five years until September, 1859," with which the Government abstained from interference, and "thus then it came to pass that through five years of deadly strife the Queen's sovereignty was never manifested in act. There was nothing to show that it was a reality – a power able and willing to protect life and property." But, on the other hand, it may be asked, could this interference have been made effectual without conquest? The natives were living in defiance of the law and of the Queen's sovereignty, and it was in resistance to the law and the sovereignty of the Queen that the murders were committed. Sir William Martin quotes the authority of the Rev. Mr. Riemenschneider (a minister of the Lutheran Church, resident in the midst of the Taranaki tribes) to show what would have been the consequence if the Queen's sovereignty had been "exerted for the benefit of these people." In a letter to the native secretary, he stated that "any intervention by military force in the feud would be generally viewed as the first step in a general and grand movement on the part of the Government to dispossess the natives by physical force of their inherited soil, which, if once permitted by the latter to be successfully entered upon by the former, would certainly be proceeded with, and be carried out through the whole length and breadth of the island, until every inch of land would have passed away from the native owners into the hands of the Europeans, and the aboriginal inhabitants of the country themselves would have been totally exterminated."

"Thus fully (he adds) the whole case has repeatedly been argued before me during the last fortnight by the natives in

THE RIGHTS OF THE NATIVES AND SETTLERS.

the Taranaki district. The most sober and quietly disposed amongst them declare, in a manner not to be mistaken, that they will rise, because they feel convinced that it will be necessary for the defence and preservation of their life, liberty, and possessions, against a system of violence and oppression threatening them and theirs." Such was the suspicion of the Government entertained by the natives. At this time the military force in New Zealand was very small, and subsequent events justified the opinion of the authorities that it would be impossible under such circumstances to put the Queen's authority in force. Sir William Martin admits this. "The feud at last wore itself out, and peace was made between the tribes. A few months after, that military force was employed at the Waitara in a case unconnected with crime. The Queen's power, which had not interfered to save men's lives or their property, did interfere to take possession of a piece of land." Sir William Martin admits that "the function of buying land (not at the best a dignified one for the Crown) had, however, been made a means of quietly extending the influence of the Government, so long as that function was exercised with great prudence and care, and with a due regard to the interests of the natives." But (he also observes) that "it may readily be understood (without entering further into the subject) how different might be the effect of another sort of management."

Until the advent of responsible government this prudence and care had been exercised by the agents of the Crown under the direct orders of the Governor. Of forty-three persons whose opinions were sought by the Government in 1856, as having had most experience of native affairs, forty-one gave it as their opinion, that the administration of native affairs should continue in the hands of the Governor, without the interference of the responsible Ministry; and had these opinions been followed, there is every reason to believe that, after the consequences which had resulted from the attempts to buy land in other parts of Taranaki, the purchase of a small block of land at the Waitara would have been avoided, as one that was likely to provoke a war between the tribes, although it could not be avoided without an evasion of the treaty, which bound the Government to buy land if offered on equitable conditions.

When the responsible Ministry came into power this danger was slighted, and the province of Taranaki being strongly represented in the Ministry, it was resolved to make the attempt to obtain for the settlers there the land necessary for the extension and prosperity of the settlement. It was well understood that

HARDSHIP OF THE CASE

this attempt would be likely to bring about a collision with the natives; but such a collision was considered a desirable event, as it was confidently assumed that a detachment of 200 soldiers would put down any opposition, and effectually convince the Maories of the necessity of abandoning their "dog-in-the-manger policy" of not allowing the occupation, on any terms, of land of which they themselves were incapable of making any use. The subject was openly canvassed in the cabin of a steamer by some of the leading men of the Taranaki settlement, who were satisfied that if the purchase of the land should be followed by the necessity of calling in the military, such a contingency was to be desired rather than otherwise. It is impossible to deny that the case of the Taranaki settlers was one of great hardship, and were a just balance struck between their claims to the protection of the Government and the claims of the natives, it is more than probable that both in a legal and moral point of view it would have preponderated much in favour of the settlers. They had purchased their allotments in England at a high price from the New Zealand Company, before that Company had itself acquired the land to which it sold the title. It happened, however, in the case of the land selected for the New Plymouth settlement at Taranaki, that Mr. Spain, the Commissioner appointed by the Queen "to investigate and determine titles," had found the purchase made by the agents of the Company valid, as having been acquired from the natives who were found in possession or occupation of the land, and, subsequently, from the tribes of Waikato, who claimed it by right of conquest; to whom Governor Hobson had paid 500l. for the cession of that right. This was the only title claimed by the New Zealand Company, which was determined by Mr. Spain in their favour. It seems impossible to read the reports of that gentleman without being convinced of their perfect impartiality, as well as of the soundness of the principles on which he rested his decisions, and of the laborious investigations upon which they were founded. But the establishment of this settlement created a desire amongst the natives to benefit by the high prices paid by the settlers for labour and for produce; and, the times being favourable for their return, many of those who had been driven from their lands by the Waikatos fourteen years before, or had been kept in slavery in the Waikato country, were permitted, through the influence of Christianity, to return, and, returning, claimed the possession of the lands of their forefathers, after having, in some cases, sold the lands they had acquired in Cook's Straits. In deciding that the lands belonged to the Company as having been

OF THE TARANAKI SETTLERS.

acquired from those members of the conquered tribes who were found in possession, and from those who claimed the right of possession by conquest, Mr. Spain reserved for the natives all the pahs and burial-places, as well as one-tenth of the land, to the extent of 6000 acres; and there can be no doubt whatever that if the Waikatos had been applied to at the time, they would, as in the case of the Ngapuhis at Mongonui, have maintained the right of the Company and forced the Ngatiawas to submission. In forming his decision, Mr. Spain proceeded upon the very plain principle that the Government could only recognise the title to land as existing in those who possessed it de facto, and were able to maintain the possession – a principle well understood by the natives, as well as being in accordance with international law. It would have been an impossible as well as unreasonable obligation, if such could be deduced from the Treaty of Waitangi, to admit or maintain a title in those who had been driven from the land; such an admission would, in most cases, have involved the investigation of still prior titles in an endless series, the respective merits of which there was no rule to decide. Most unfortunately, however, in this case Governor Fitzroy took a different view, and lost no time in reversing the Commissioner's decision, and recognising in their fullest extent the claims of those who had abandoned the country from fear of the invaders, as well as of those who had been permitted to return from slavery. The Waikato chiefs sent various messages to the settlers warning them against making any payment to the returning Ngatiawas, as well as to the latter, desiring them to be at peace with the settlers, or they would compel them. The Rev. Mr. Ironside, a Wesleyan missionary, who had resided many years among the Ngatiawas on the shores of Cook's Straits, where, after having been forced to abandon Taranaki, they had made settlements after having driven out the previous occupants, gave his opinion to the Commissioner in the following words: – "With reference to the settlement of the land claim question, I have no hesitation in stating my sincere conviction that to compensate the natives residing in the neighbourhood for the lands claimed by the New Plymouth Company would be very injudicious, and might lead to disastrous results, which we should all deprecate. The Waikato chiefs who conquered Taranaki have not acknowledged and do not acknowledge the right of the Taranaki people to sell the land on which they may reside merely on sufferance; they look with jealousy on the proceedings of the returned slaves, still call the country their own, and I fear that compen-

THE TARANAKI SETTLERS ENTITLED

sating them – the Taranaki natives – would foster the jealousy and suspicion of their former masters, rouse their ire, and lead to an open rupture between the tribes. I may be wrong, but that is my opinion." It is certain that the main body of the Ngatiawas who returned under William King returned with fear and trembling, not venturing to live upon their own land on the north of the Waitara, where they made their cultivations, but building a pah on the south side for the greater security of themselves and the owners of the land, if the Waikatos should resent their return.

Acting under the instructions of Mr. Gladstone, who was at that time Secretary of State for the Colonies, Sir George Grey did all that was in his power to carry out the decision of the Commissioner, but in order to provide allotments for the settlers he was compelled to re-purchase such blocks as he could obtain, as if no previous title had been acquired. Governor Fitzroy had been only able to procure for the settlers 3500 acres out of the 60,000 acres to which the Commissioner had affirmed the Company's title. Some of the settlers were actually compelled to remove from the allotments on which they had built houses, and planted gardens and fields; and the majority were unable to obtain the lots to which they were entitled by their purchases from the Company. It is not, therefore, a matter of surprise that the relations between the Taranaki settlers and the natives should be far from being of the same friendly character as those which subsisted between the settlers and the natives in the North, and that those unfriendly feelings should have been aggravated by the formation of a league to prevent the selling of any land whatever, whether belonging to members of the league, or to others who were desirous of selling what land belonged to themselves. These are facts to which Sir W. Martin, in his paper of 16th Nov., 1863, makes no reference; but their consideration is necessary in order to form a right judgment of the circumstances which he refers to, as proving that the natives were as much sinned against as sinning. The feud and the murders to which he refers, arose from the jealousy of the natives, which combined them in a league to prevent any further extension of the settlement; while the extension of the settlement was necessary to its existence. The settlers saw an almost immeasurable extent of rich country lying useless, and the Government was bound by its adoption of the obligations of the New Zealand Company to put them in possession of certain portions of that country. The Government being too weak to maintain the title which the

TO SYMPATHY RATHER THAN THE NATIVES.

Commissioner had by a solemn decision declared to be vested in the Company, did its best for the settlers by endeavouring to re-purchase for them such portions of land as the natives were willing to sell. And it was in tracing the boundaries of such lands that the sellers of it were murdered in cold blood by-members of their own tribe, who had entered into the league to prevent the sale of any more land and any further extension of the settlement. Can any one doubt the obligation which lay upon the Government to punish such murderers, or to maintain the right of each native to sell his land. But, by endeavouring to make out a fanciful right in the chief of a tribe to interfere with the rights of its members, Sir W. Martin and those who side with him would enlist sympathy in favour of those who, by making the fulfilment of the obligations of the treaty impossible, brought upon themselves the disastrous results which Sir W. Martin laments, in the destruction of their live stock and improvements; leaving only "fragments of threshing-machines among the ashes of a burnt pah," and other similar indications of a prosperity which had passed away. If a more prudent policy would have avoided the risk of such consequences, it was not less the duty of the Government to protect those of the natives who wished to sell their portion of the land, from those who leagued together to oppose the sale; nor is the sympathy the less due rather to the settlers than to the natives, who owed to the settlers all the prosperity which they enjoyed.

The attempt to justify the interference of Wiremu King with the sale made by Teira, from which resulted the war of 1861, has led to a controversy which has extended over years, and filled no end of blue-books; and yet the matter is sufficiently simple, when once the difficulty is got over of drawing the necessary distinction between the state of things in a civilised community where title to land is defined by law and has for ages been maintained by judicial establishments and irresistible authority, and the state of things existing amongst a savage people who have never known law or submitted to authority; amongst whom land had never been a subject of exchangeable value, and where the power of the strong arm overruled all natural rights. The propensity seems almost invincible to impute to the natives ideas in relation to the tenure of land, which had never entered their minds, and rights which have no existence in the absence of law and authority.

By the treaty of Waitangi the Crown was bound to respect the possessions held by individuals in their individual as well as in their collective capacity. The sale made by Teira of the

THE PREVENTION OF TEIRA'S SALE OF LAND

small block of land, extending only to about 600 acres, was no encroachment on the wide territory which the tribe possessed in common. It was confined to those spots with which Teira and the families who joined him in making the sale, and their forefathers, had incorporated their labour, and thereby established a right which seems almost as instinctive as that of a man to his own children – a right which is antecedent to all law. When land first became a subject of barter, it was sold by the natives, both as individuals and as tribes, in small patches, as well as in large tracts. Each family was without question allowed to sell the portion which they or their forefathers had subdued from the forest. If such portions were included in a sale of land common to the tribe, the division of the price was a matter of compromise amongst themselves, which, though it often led to angry feelings, was ultimately settled on terms in which they all acquiesced. Until the commencement of such transactions, it is probable that the possession of land by an individual or a tribe had never been a subject which excited the cupidity of another individual or another tribe any more than the waters of the ocean or the air which they breathed; because, in regard to the uses to which they could apply it, the land was as boundless as the ocean or the air. At the same time, there were both tribal possessions and possessions claimed by branches of the same tribe, to interfere with which in an unauthorised or wanton manner would have been resented as an encroachment. According to the traditions in which they all agree, the boundaries of the tribe were fixed on the first arrival of their ancestors in the country. When a canoe touched land, its occupants put up a pole at a certain distance on each side from the spot, and claimed the coast within those boundary marks, and the interior as comprised in two imaginary lines drawn inland from the poles. When the tribe increased, different families cultivated different portions within the common boundaries, and in this manner a subdivision of the tribe had a peculiar claim to a certain portion of the common territory. But there was no law to regulate these possessions, nor was it an object in any one tribe to prevent members of another tribe who, from intermarriages or from other motives, might desire to settle amongst them from occupying land within their boundaries; on the contrary, each tribe was anxious to increase its strength by the addition of new members. If one tribe was driven from its accustomed seat by another tribe it was in revenge for some real or imputed injury, not from a covetous desire to possess land of which they could make no use, and

A VIOLATION OF THE TREATY.

from the possession of which they could obtain no advantage. So far as Teira's sale included only the lands which he and those who joined him in the sale possessed by actual or previous occupation (and the Government expressly reserved any portions which might be claimed by others by a similar title), the Government was not only bound to protect Teira in his right to sell, but also to buy the land, if offered on such terms as made it advantageous to the public. The assumption of Wiremu King to veto such a sale was an attempt to exercise lawless power, to which, if it had been attempted before the treaty, Teira as the weaker party would have had no resource but to submit; but which the Governor was bound to put down as an attempt to abnegate rights which the Crown was bound by the treaty to maintain.

As regards Waikato, the "second principal seat of disaffection and disturbance," Sir William Martin's observations all through assume that this disaffection and disturbance arose from our neglect of the duties of sovereignty rather than from the indisposition of the natives to submit to the restraints of law, and from their incurable suspicion of the intentions of the Government. Of all the districts in New Zealand, none was so highly favoured by the bounty of the Government, as well as by the labours of missionaries, as Waikato. But the people of that district had from the first refused to sell land. The distrust reported in every paragraph of the Protector of Aborigines' report of his visit to that country in 1840 had never ceased to exist, but had gathered strength as time advanced. The natives, while watching our proceedings with the utmost jealousy, did not fail to avail themselves of every advantage which we could afford them. They were desirous "to be taught the law, as the missionaries taught them the Gospel;" but the majority of them had no idea of submitting to it. The attempt to set up a King, which their apologists represented as "feeling after a better state of things," was, by the confession of some of their leading men, an endeavour to unite their tribes into a Maori nationality. It was not intended by them all as hostility to the Queen, but it was nevertheless a repudiation of her sovereignty over the territory where the natives had not sold the land. At the bottom of all lay the "incurable suspicion" of the intention of the Government to deal with their lands as the Government had dealt with the lands which the native proprietors had sold to the Queen's native-born subjects. The advocates of the natives have altogether failed to make out any case of ill-treatment of the

natives themselves which could justify rebellion; on the contrary, the more the subject may be investigated the more clearly it will appear that the natives have been treated with a tenderness and liberality which has no precedent in the dealings of a civilised nation with savage or barbarous tribes; and that if they have not enjoyed all the privileges enjoyed by others of the Queen's subjects, it is because they have refused to submit to the conditions upon which alone those privileges could be enjoyed – a submission to the law.

24 See Parliamentary Paper of 8th April, 1840, where these Acts and their objects are specified at large, as well as the diplomatic proceedings in relation to the appointment of a Resident.

25 Draft Report of the minority of the Committee of the House of Commons on New Zealand of 1841; and speech of Lord John Russell in the House of Commons.

26 See two letters to Sir H. E. Inglis, Bart., M. P., from D. Coates, Esq., Secretary to the Churoh Missionary Society, London, April, 1845.

27 Report on New Zealand, 1840: Evidence of John Ward, Esq., pp. 71, 72, 73

28 But New Zealand was not a Convict Settlement; which circumstance necessitated in the cases of the other Australian colonies a departure from the fundamental rule.

29 Papers ordered by the House of Commons to be printed, 11th May, 1841, pp. 24, 25.

30 Papers of 12th August, 1842, p. 123.

31 A law is, in its very nature, prospective. Legis virtus (hoec) est, imperare, vetare, permittere, punire. – Digest Lib. I., Tit, iii, "To ordain, prohibit, permit, punish, is the essence of law."

32 Parliamentary paper of 8th April, 1840, p. 37.

33 Parliamentary papers of 8th April, 1840, p. 39.

34 Ibid, p. 28.

35 Hansard's Debates, June 17, 1845, page 736.

36 Appendix to Report of 29th July, 1844, page 334.

37 Appendix D to the Journal of the House of Representatives of New Zealand, Session 1862, page 6.

38 Appendix D to the Journals of the House of Representatives of New Zealand, Session 1862, page 6.

39 Ibid, page 8.

40 Parliamentary paper of 8th April, 1840, p. 4.

41 Parliamentary Paper of 12th August, 1842, p. 93.

42 Rewa was a Bay of Islands chief, who accompanied M. Pompallier, the French Roman Catholic Bishop to the meeting for the Treaty of Waitangi, and earnestly urged his countrymen to "send the man away," and not to sign the paper – that if they did, they would before long be slaves breaking stones on the road.

43 Report on New Zealand, 29th July, 1844. Appendix, p. 125.

44 Report of 1844, p. 126.

45 Parliamentary Papers of 21st May, 1846, p. 127.

46 Heke's Letter to Governor Fitzroy in Papers of 2lst May, 1846, p. 150.

47 Papers in continuation of Papers presented 26th August, 1846.

48 Papers of 14th March, 1845, p. 21.

49 Papers of 22d April, 1845, p. 152.

50 Papers of 12th June, 1845, p. 29.

51 Papers of 21st May, 1846, p. 137.

52 While the Company were under the belief that their agents had acquired ten millions of acres to which the natives would acknowledge their title, they held a different language. The following is an extract from the evidence of William Hutt, Esq., a member of the House, given before the Committee of the House of Commons of 1840, 24th July, 1840: – "In consequence of having understood that I was likely to be examined before this Committee, I expressed to the Directors a wish that they would consider the points most likely to form the topics of my examination, and let me understand their opinions respecting them. They assembled for that purpose this morning, and came to several resolutions, of which I have a copy here, and which, with the permission of the Company, I will read: 'The Court of the Directors of the New Zealand Company having understood that it is the intention of the Select Committee of the House of Commons on New Zealand to examine a member of the Court with respect to the views of the Company in relation to its property in New Zealand, to the general colonisation of the Islands, and to the prospect of raising a loan in this country for defraying the present expenses of Government in New Zealand, resolved: – That the proclamation of the Governor of New South Wales, bearing date the 14th January, 1840, by which authority is claimed by the Crown alone to interfere with private rights of property in a country which the Crown itself declares to be an independent sovereign State (and which rights were previously acquired by purchase and cession from chiefs, or others, having equally valid powers with those through whom the Crown has since acquired sovereign rights), are so contrary to international law, and so repugnant to justice, as to require that this Company should employ every legitimate means of resistance to their taking effect.'"

53 Papers of 21st May, 1846, p. 73.

54 Papers of June, 1847, p. 7.

55 Papers of 21st May, 1846, p. 73.

56 Papers of June, 1847, p. 68.

57 Ibid.

58 Ibid, p. 30.

59 This notice does not appear in the Parliamentary Papers.

60 See New Zealand Government Gazette, No. 17, August 10, 1847.

61 It is believed that under the influence of the Aborigines Protection Society, to whom her case became known, some compensation was afforded to this native woman; but to what extent is not known; for since the introduction of what is called "responsible government" the former custom of publishing in the Government Gazette all grants made in the colony has fallen into disuse.

62 Papers in continuation of Papers presented in December, 1847, and February, 1848, page 10.

63 Papers presented July, 1849, p., 36.

64 Papers in continuation of papers presented in December, 1847, and February, 1848.

65 Papers in continuation of papers presented in December, 1847, and February, 1848, p. 123.

66 Papers of June, 1847, p. 74.

67 Papers in continuation of papers presented in December, 1847, and February, 1848, page 98.

68 Ibid, page 99.

69 Papers of July, 1849, page 85.

70 The judgment of the Privy Council was as follows: –
"This is a case in which a grant has been made by the Governor of New Zealand under an Ordinance passed to give effect to the report of a Commission issued in pursuance of a previous Ordinance. That report was admitted by the judges to be inconsistent with the Ordinance under which it was made, and that so far, therefore, as the grant professed to be in confirmation of that report, it would necessarily fall to the ground. They were of opinion that, inasmuch as there is a provision in the Statute 3 and 4 Vict., c. 62., under which the charter was granted, that it shall not affect the prerogative of the Crown, the grant might take effect under the general authority on the part of the Governor to make grants. But we are clearly of opinion that whatever the authority of the Governor might be, this is not a grant professing or intended to be made as a matter of bounty or grace from the Crown, but is only intended as a confirmation of that report which was made under the authority of the Ordinance. The grant is founded upon the report, and the report is founded upon the Ordinance. It is clearly contrary to the terms of the Ordinance, and therefore the grant must fall, and the judgment upon the scire facias must be for the Crown." The respondent did not appear, and the case was heard ex parte. – Moore's Privy Council Cases, Vol. VII.. page 84.

71 13th Vict., Session X, No. 4.

72 Papers of December, 1847, p. 64.

73 Papers of l4thMarch, 1845, p. 55, 56.

74 Papers of 21st May, 1846, p. 93.

75 Papers of June, 1847, p. 1.

76 Mr. David Hay, who subsequently authorised the use of his name.

77 Parliamentary Papers of 8th April, 1840, page 30.

78 Appendix to the Proceedings of the House of Representatives for 1862, D, No. 10, p. 6.

79 Ibid.

80 Appendix to the proceedings of the House of Representatives for 1862, D, No. 10, p. 8.

81 Parliamentary Paper of 23d May, 1864, p. 7.

82 Papers of 23d May, 1864.

APPENDIX.

APPENDIX.

No. 1.

COPY OF A PETITION FROM THE PROVINCIAL COUNCIL OF AUCKLAND TO THE QUEEN, DATED NOVEMBER, 1858, THE SAME, mutatis mutandis, HAVING BEEN MADE TO BOTH HOUSES OF PARLIAMENT. 83

TO THE QUEEN'S MOST EXCELLENT MAJESTY.

May it please your Majesty, –

WE, your Majesty's faithful and dutiful subjects, the Members of the Provincial Council of Auckland, elected under and by authority of an Act passed in the fifteenth and sixteenth years of your Majesty's reign, desire to approach your Majesty with the expression of our unfeigned attachment to your Majesty's person and Government.

1. Your Majesty's petitioners would most humbly represent that the Provincial Council of Auckland, on being first established under the New Zealand Constitution Act, did by petition, in December, 1853, humbly represent to your Majesty and both Houses of Parliament, that no colony which was ever planted by British subjects was more completely separated and distinct, physically and socially, from all other colonies than is the colony of Auckland from each of the other five colonies which have been planted by your Majesty's subjects in different parts of the islands of New Zealand; and that the union of these six colonies under one Government and Legislature was incompatible with the good government of the respective colonies; and praying, accordingly, that your Majesty and Parliament

would be pleased to grant a separate Govemment and Legislature to the colony of Auckland.

2. That the Provincial Council did by petition, in April, 1855, renew their representations to your Majesty and Parliament, setting forth the results of experience in the working of the Constitution, as further grounds in support of the prayer of their petition.

3. That, as long as the colonies of New Zealand continue to be dependencies of the British Crown, they have not, and cannot have, any general interests which the Government of a confederacy of the separate colonies is competent to administer and protect – the regulation of all other than simply domestic interests belonging to the Government of your Majesty and the Imperial Parliament; and being inconsistent with the very nature of a dependency, or confederation of dependencies, which are incapable of external or foreign relations.

4. That your Majesty's petitioners consider that the power given to a majority of the representatives from six distinct colonies to levy uniform duties in each of the colonies, whether such duties are required by each of the colonies or not, is a more serious grievance than the attempt by the British Legislature to tax the American Colonies, which led to the separation of those colonies from the mother country; inasmuch as the American Colonies did derive protection from the naval and military forces, and from the sovereign authority of the mother country; whereas, the general Government of New Zealand is incapable of any functions which could not be better performed by each of the six colonies for itself, or of affording to them any protection whatever.

5. That the confederation of a group of colonies under one general Government and Legislature is not a greater novelty than it is an anomaly in colonial polity. That in only one previous instance – that of the Leeward Islands – was a group of colonies having, like the colonies of New Zealand, each its separate Government and Legislature, placed under one general Legislature, which general Legislature was finally dissolved in the year 1832, having during the long period of ninety-three years only enacted one law; thus proving that it was an unnecessary and useless institution. (Clarke's Colonial Law, p. 126.)

6. That the power given to the general Government and Legislature of New Zealand to interfere with the local and domestic concerns of its several members, is absolutely without precedent in the history of ancient or modern confederacies;

that this power has, in fact, been exercised to such an extent as to show that it is incompatible with the proper objects of government; the laws passed by the general Legislature over-riding and conflicting with the laws passed by the local Legislature, and rendering it impossible for the colonists to provide for their local wants and interests without their measures being liable to be overruled – such measures having actually been overruled – and rendered nugatory by the interference of persons who have no interests in common with their interests, but many interests which may be served by a sacrifice of theirs.

7. That this novel Constitution has created a governing class throughout the New Zealand Colonies entirely disproportioned to the number of their inhabitants; and has enabled this governing class to raise a revenue of such amount as to be oppressive to the inhabitants; the greater part of it being spent, not in promoting the true objects of good government, but in maintaining and extending the powers of those who, for the time being, may have obtained the direction of public affairs; the general Legislature having during its last session passed no fewer than eighty laws, the object of at least thirty of which was to provide for exigencies arising out of the complicated Constitution under which the New Zealand Colonies are governed; or to remedy defects in previous legislation, traceable to the same cause; or otherwise arising from the abnormal state of affairs in colonies having two conflicting Legislatures.

8. That in praying for a separate Government and Legislature your Majesty's petitioners only require for the inhabitants of the colony of Auckland such a share of self-government as is consistent with their rights and free customs as British subjects; and without which it is impossible for them to conduct their affairs with efficiency and economy. That they are able and willing to provide liberally for every Governmental establishment which is necessary for the good government of the colony of Auckland. But that they are unable and unwilling to bear the burden of two Governments and two Legislatures, whose separate functions – the one over-riding the other – have proved to be incompatible with the proper objects of government.

9. Your Majesty's petitioners, therefore, humbly pray that your Majesty will take the case of the colony of Auckland into your Royal consideration, and, with the aid of Parliament, graciously afford relief to its inhabitants by establishing in their behalf such a system of government as may be consistent with their rights as British freemen, and such as has always, in times

past, been enjoyed by your Majesty's subjects in British colonies of freemen.

And your Majesty's petitioners will ever humbly pray that your Majesty may long continue to reign in the affections of an united and happy people.

No. 2.

EXTRACTS FROM A DESPATCH ADDRESSED BY GOVERNOR SIR G. GREY, K. C. B., TO THE SECRETARY OF STATE, DATED August 30, 1851.

20. The central mountain of the Northern Island 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.

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.

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 colonisation, 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 betwixt 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 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. Individuals who inhabit one colony rarely have property or agents in another. Personal acquaintance or intercourse between the inhabitants of the various settlements can scarcely be 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.

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 colonics, 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 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.

No. 3.

COMMISSION OF HIS EXCELLENCY SIR G. GREY, K. C. B.

Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to our trusty and well-beloved Sir George Grey, Knight, Commander of our Most Honourable Order of the Bath, greeting: 1. Whereas we did by certain letters patent, under the Great Seal of our United Kingdom of Great Britain and Ireland, bearing date at Westminster, the ninth day of February, one thousand eight hundred and fifty-five, in the eighteenth year of our reign, constitute and appoint our trusty and well-beloved Thomas Gore Browne, Esquire, Companion of our Most Honourable Order of the Bath, colonel in our army, to be Governor and Commander-in-Chief in and over our islands of New Zealand, as upon relation being had to the said recited letters patent will more fully and at large appear. Now know you, that we have revoked and determined, and by these presents do revoke and determine, the said recited letters patent, and every clause, article, and thing therein contained. And further know you, that we, reposing especial trust and confidence in the prudence, courage, and loyalty of you the said Sir George Grey, of our especial grace, certain knowledge, and mere motion, have thought fit to constitute and appoint, and by these presents do constitute and appoint you to be our Governor and Commander-in-Chief in and over our said colony of New Zealand and its dependencies, for and during our will and pleasure; and we do hereby authorise and command you to do and execute all things in due manner that shall belong to your said command, and the trust we have reposed in you, according to and in pursuance of the Act of the Session holden in the fifteenth and sixteenth years of our reign, intituled "An Act to grant a Representative Constitution to the Colony of New Zealand;" and according to the several powers and directions granted or appointed you by this our present Commission, and

the instructions and authorities herewith given you, or by such further powers, instructions, and authorities, as shall at any time hereafter be granted or appointed you under our Sign Manual and Signet, or by our Order in our Privy Council, or by us through one of our principal Secretaries of State, and according to such reasonable laws as are now in force in our said colony, or hereafter shall be made by the General Assembly of our said colony. 2. And whereas it is expedient that an Executive Council should be appointed to advise and assist you in the administration of the government of our said colony: Now we do declare our pleasure to be that there shall be an Executive Council for our said colony, and that the said Council shall consist of such persons as you shall, by instruments to be passed under the Public Seal of our said colony in our name and on our behalf, from time to time nominate and appoint to be members of the same. And we do hereby authorise you, should you deem it necessary for the public service, to remove or suspend by such instrument as aforesaid any of the members of our said Council. But we do hereby expressly enjoin and require that you do transmit to us, through one of our principal Secretaries of State, exemplifications of all such instruments as shall be by you so issued for appointing, suspending, or removing the members of the said Council. 3. And we do hereby authorise and empower you to keep and use the Public Seal for sealing all things whatsoever that shall pass the seal of our said colony. 4. And we do hereby authorise and empower you to make and execute in our name, and on our behalf, under the Public Seal of our said colony, grants of any lands legally granted by us within our said colony. 5. And we do further authorise and empower you to constitute and appoint Judges, and in cases requisite Commissioners of Oyer and Terminer Justices of the Peace, and other necessary officers and Ministers of our said colony of New Zealand for the better administration of justice and putting the laws into execution. 6. And we do hereby give and grant unto you full power and authority as you shall see occasion in our name and on our behalf to remit any fines, penalties, and forfeitures, which may accrue or become payable to us. 7. And we do hereby give and grant unto you full power and authority as you shall see occasion in our name and on our behalf to grant to any offender convicted of any crime in any Court, or before any Judge, Justice, or Magistrate within our said colony and its dependencies, a free and unconditional pardon, or a pardon subject to such conditions as in conformity with any law in force in the said colony may be thereunto

annexed. 8. And we do hereby give and grant unto you, so far as we lawfully may, full power and authority upon sufficient cause to you appearing to remove from his office, or to suspend from the exercise of the same, any person exercising any such office within our said colony and its dependencies, under or by virtue of any commission or warrant granted or to be granted by us, or in our name, or by our authority. And we do hereby strictly require and enjoin you, in proceeding to any such removal or suspension, to conform to such instructions as may from time to time be communicated to you under our Sign Manual and Signet, or through one of our principal Secretaries of State. 9. And whereas it has been represented to us that the necessities of our service in our said colony occasionally require that you should absent yourself from the seat of government in the province of Auckland, whereby the affairs of the said province might be exposed to detriment if there were no person in the place who should be authorised to exercise the powers and authorities which we have by our said Commission given and granted to you our Governor: Now we do hereby authorise and empower you from time to time, as occasion shall require, by an instrument under the Public Seal of our said colony, to assign, constitute, and appoint any person to be your deputy in the said province of Auckland, and in that capacity to exercise, perform, and execute during your pleasure, but no longer, all such powers, directions, and authorities, as are vested in you by this our Commission and the Instructions under our Sign Manual and Signet herein referred to. Provided, nevertheless, that by the appointment of a deputy as aforesaid, your power and authority as Governor of our said colony shall not be abridged, altered, or in any way affected, otherwise than we may at any time hereafter think proper to direct. 10. And in case of the death, incapacity, or absence of you from the said colony and its dependencies, our will and pleasure is that this our Commission and the several powers herein, and by our aforesaid Instructions vested in you, shall be exercised by such person as may be appointed by us under our Sign Manual and Signet, to be our Lieutenant-Governor of our said colony of New Zealand and its dependencies, or to administer the government of the same. But if at the time of such your death, incapacity, or absence, there shall be no person within our said colony appointed by us as aforesaid to be our Lieutenant-Governor or administrator of the government thereof, then our pleasure is and we do hereby provide and direct that in any such contingency the senior officer for the time being in com-

mand of our land forces within our said colony shall take upon himself the administration of the government thereof, and shall execute this our Commission and the several powers herein and in the aforesaid Instructions contained. 11. And we do hereby require and command all officers, civil and military, and all other inhabitants of the said colony and its dependencies, to be obedient, aiding, and assisting unto you, or to the officer administering the government for the time being, in the execution of this our Commission, and of the powers and authorities herein contained. In witness whereof we have caused these our letters to be made patent. Witness ourself at Westminster, the twelfth day of August, in the twenty-fifth year of our reign. By warrant under the Queen's Sign Manual,

C. ROMILLY.

Instructions to our trusty and well-beloved Sir George Grey, Knight, Commander of our Most Honourable Order of the Bath, our Governor and Commander-in-Chief in and over our colony of New Zealand and its dependencies, or, in his absence, to our Lieutenant-Governor, or the officer administering the government of our said colony for the time being. Given at our Court, at Osborne House, Isle of Wight, this twelfth day of August, one thousand eight hundred and sixty-one, in the twenty-fifth year of our reign.

First. Whereas by our Commission under the Great Seal of our United Kingdom of Great Britain and Ireland, bearing even date, herewith constituting and appointing you to be our Governor and Commander-in-Chief in and over our colony of New Zealand and its dependencies, for and during our will and pleasure, we have required and commanded you to do and execute all things in due manner that shall belong to your said command, and the trust thereby reposed in you according to and in pursuance of an Act of the Session holden in the fifteenth and sixteenth years of our reign, intituled "An Act to grant a Representative Constitution to the Colony of New Zealand," and according to the several powers and directions granted or appointed you by our said Commission, and the instructions therewith given to you, or, according to such further powers, instructions, and authorities as should at any time hereafter be granted to or appointed for you under our Sign Manual and Signet, or by our Order in our Privy Council, or by us through one of our principal Secretaries of State. Now, therefore, we do, by these our Instructions under our Royal

Sign Manual and Signet, being the Instructions so referred to in and accompanying our said Commission, declare our pleasure to be that you shall, with all due solemnity, cause our said Commission to be read and published in the presence of the Chief Justice of our said colony for the time being, and of the members of the Executive Council thereof, and you shall then and there take the oath of allegiance, as prescribed by the Act of the first year of the reign of King George the First, statute 2, chapter 13, section 2; and likewise that you do take the oath for the due execution of the office and trust of our Governor and Commander-in-Chief in and over our said colony, and for the due and impartial administration of justice, which said oaths the Chief Justice for the time being of our said colony, or in his absence any Judge of the Supreme Court of our said colony, shall and he is hereby required to tender and administer unto you.

Second. And we do hereby authorise and require you from time to time, and at any time hereafter, by yourself or by any other person to be authorised by you in that behalf, to administer to all and to every person or persons, as you shall think fit, who shall hold any office or place of trust or profit, or who shall at any time or times pass into our said colony, or who shall be resident or abiding therein, the oath commonly called the oath of allegiance, save only in cases wherein any other oath or oaths is or are prescribed by the statutes in that behalf made, or by any of them, in which case it is our pleasure, and we do hereby direct, that you do administer, or cause to be administered, to such persons such other oath or oaths as aforesaid.

Third. And whereas by the said recited Act of Parliament of the fifteenth and sixteenth years of our reign, it is, amongst other things, enacted that it shall be lawful for us by any instrument under our Sign Manual to authorise you in our name to summon to the Legislative Council of the said colony such person or persons as we shall think fit. Now, therefore, in pursuance of the said recited Act, and in the exercise of the powers thereby vested in us, we do by these our instructions under our Sign Manual authorise you, in our name, to summon to the Legislative Council from time to time such person or persons as you shall deem to be prudent and discreet men, either in addition to the present members of the said Council or for supplying any vacancies which may take place therein by death or otherwise, but so that the whole number of the said Council shall not at any time exceed twenty. Provided

always that in accordance with the provisions of the said Act no person shall be summoned by you to such Legislative Council who shall not be of the full age of twenty-one years, and a natural born subject of Her Majesty, or a subject of tier Majesty naturalised by Act of Parliament or by an Act of the Legislature of New Zealand.

Fourth. And for the execution of so much of the powers as are vested in you by the said recited Act passed in the fifteenth and sixteenth years of our reign, for assenting to or dissenting from or reserving for the signification of our Royal pleasure, bills which have been passed by the said Legislative Council and House of Representatives: We do, by these our Instructions under our Sign Manual and Signet, enjoin and require you to be guided by the following rules, directions, and instructions; that is to say:

Fifth. You are as much as possible to observe in the passing of all laws that each different matter be provided for by a different law without intermixing in one and the same law such things as have no proper relation to each other, and you are more especially to take care that no clause or clauses be inserted in or annexed to any bill which shall be foreign to what the title of such bill imports, and that no perpetual clause be part of any temporary law.

Sixth. When any bill is presented to you for our assent, of either of the clauses hereinafter specified, you shall (unless you shall think proper to withhold our assent from the same) reserve the same for the signification of our pleasure thereon, subject, nevertheless, to your discretion, in case you should be of opinion that an urgent necessity exists requiring that such bill be brought into immediate operation, in which case you are authorised to assent to such bill in our name, transmitting to us by the earliest opportunity the bill so assented to, together with your reasons for assenting thereto; that is to say:

1. Any bill for the divorce of persons joined together in holy matrimony.

2. Any bill whereby any grant of land or money, or other donation or gratuity, may be made to yourself.

3. Any bill whereby any paper or other currency may be made a legal tender, except the coin of the realm or other gold or silver coin.

4. Any bill for raising money by the institution of public or private lotteries.

5. Any private bill whereby the property of any individual may be affected, in which there is not a saving of

the rights of us, our heirs and successors, and of all bodies politic or corporate, and of all other persons excepting those at whose instance or for whose especial benefit such bill may be introduced, and those claiming by, from, through, and under them.

6. Any bill imposing differential duties.

7. Any bill, the provisions of which shall appear inconsistent with obligations imposed upon us by treaty.

8. Any bill interfering with the discipline or control of our forces in the colony by land and sea.

9. Any bill that shall purport to be enacted for a time less than one year.

10. Any bill of an extraordinary nature and importance whereby our prerogative or the rights and property of our subjects not residing in the colony, or the trade and shipping of the United Kingdom and its dependencies, may be prejudiced.

11. Any bill containing provisions to which our assent has been once refused, or which have been disallowed by us.

Seventh. You shall take care that all laws assented to by you in our name, or reserved for the signification of our Royal pleasure thereon, shall, when transmitted by you, be fairly abstracted in the margins, and be accompanied with explanatory observations upon each of them; and you are also to transmit a statement of the reasons, and of the occasion for proposing such law, together with fair copies of the journals and minutes of the proceedings of the said Legislative Council and House of Representatives, which you are to require from the clerks or other proper officers in that behalf of the said Legislative Council and House of Representatives.

Eighth. You are to communicate forthwith to our Executive Council for our said colony these our Instructions, and likewise all such others from time to time as you shall find convenient for our service to be imparted to them.

Ninth. And we do hereby declare, and it is our pleasure, that our said Executive Council shall not proceed to the dispatch of business unless duly summoned by your authority, and unless two members at the least (exclusive of yourself or the member presiding) be present and assisting throughout the whole of the meetings at which any such business shall be despatched.

Tenth. And it is our pleasure that you do attend and preside at the meetings of our said Executive Council, unless when prevented by some necessary or reasonable cause. And you

are hereby further authorised to appoint, by an instrument under the Public Seal of the province, one member of the said Executive Council to preside in your absence, and to remove him and appoint another in his stead; and if, during your absence, the member so appointed shall also be absent, then the senior member of the said Executive Council actually present shall preside at all such meetings, the seniority of the members of the Council being regulated according to the priority of their appointments as members of the said Council.

Eleventh. And we do further direct and command that a full and exact journal or minute be kept of all the deliberations, acts, proceedings, votes, and resolutions of our said Council, and that at each meeting of the said Council the minutes of the last meeting be read over, confirmed, or amended, as the case may require, before proceeding to the dispatch of any other business. Twelfth. And it is our further will and pleasure, and we do hereby command you, that in the execution of the several powers and authorities granted and committed to you by our said Commission and these our Instructions, or by any additional instructions hereafter to be given to you by us, you do in all things consult and advise with our said Executive Council, and that you do not exercise the powers and authorities aforesaid, or any of them, except by and with the concurrence and advice of our said Council, save and except only in such cases as are hereinafter saved and excepted. Provided always that nothing herein contained shall extend to prevent your exercising, without the advice and consent of our said Council, the several powers and authorities, or any of them, which may be of so urgent and pressing a nature as not to admit of the delay unavoidably incident to the deliberations of our said Council. It is, nevertheless, our pleasure that the measures adopted by you, without the advice of our said Council upon any such emergency, shall, with all convenient speed, be by you brought before our said Council for their revision and sanction. Provided also that nothing herein contained shall prevent your exercising the several powers and authorities aforesaid, or any of them, without the advice and concurrence of our said Council, in any case or upon any occasion which may not appear to you to be sufficiently important to require their assistance and advice, or which may be of such a nature that, in your judgment, our service would sustain material prejudice by consulting our said Council thereupon.

Thirteenth. And we do authorise you in your discretion, and if it shall in any case appear right, to act in the exercise of the power committed to you by our said Commission, in opposition

to the advice vrhich may in any such case be given to you by the members of our said Executive Council. Provided, nevertheless, that in any such case you do fully report to us, by the first convenient opportunity, every such proceeding, with the grounds and reasons thereof.

Fourteenth. Whereas by the Act passed in the fifteenth and sixteenth year of the reign of her present Majesty, and intituled "An Act to grant a Representative Constitution to the Colony of New Zealand," it was among other things provided that at any time during the continuance of the office of any Superintendent of a province, it should be lawful for Her Majesty to remove him from such office, on receiving an address signed by the members of the Provincial Council of such province praying for such removal: And whereas it was by the said Act further enacted that it should be lawful for Her Majesty, in and by any letters patent to be issued under the Great Seal of the United Kingdom, from time to time to constitute and establish within any district or districts of New Zealand one or more municipal corporation or corporations, and to grant to any such corporation all or any of the powers which, in pursuance of the statutes in that behalf made and provided, it is competent to Her Majesty to grant to the inhabitants of any town or borough in England and Wales, incorporated in virtue of such statutes, or any of them, and to qualify and restrict the exercise of any such powers in such and the same manner as by the statutes aforesaid, or any of them, Her Majesty may qualify or restrict the exercise of any such powers as aforesaid in England: Provided always that all provisions of such letters patent and all bye-laws or regulations made by any such corporation should be subject to alteration or repeal by any Ordinance or Act of the Provincial Council for the province in which any such Corporation may be established, or of the General Assembly, according to their respective powers hereinbefore declared.

And whereas it was by the said Act further enacted, that whereas it might be expedient that the laws, customs, and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves in all their relation to and dealings with each other, and that particular districts should be set apart within which such laws, customs, or usages should be so observed: it should be lawful for Her Majesty, by any letters patent to be issued under the Great Seal of the United Kingdom, from time to time to make provision for the purposes aforesaid, any repug-

nancy of any such laws, customs, or usages to law of England, or to any law, statute, or usage in force in New Zealand, or in any part thereof, in any wise notwithstanding. And whereas it was by the said Act further enacted that it should be lawful for Her Majesty, by any such letters patent as therein mentioned, or instructions under Her Majesty's Sign Manual and Signet, or signified through one of Her Majesty's Principal Secretaries of State, to delegate to the Governor any of the powers thereinbefore reserved to Her Majesty respecting (amongst other things) the removal of Superintendents of provinces, the establishment of municipal corporations, and the preservation of aboriginal laws, customs, and usages.

And whereas it was by the said Act further provided that it should not be lawful for any person other than Her Majesty, her heirs and successors, to purchase, or in anywise acquire or accept from the aboriginal natives, land of or belonging to, or used or occupied by them in common as tribes or communities, or to accept any release or extinguishment of the rights of such aboriginal natives in any such land as aforesaid, and that no conveyance or transfer, or agreement for the conveyance or transfer of any such land, either in perpetuity, or for any term or period, either absolutely or conditionally, and either in property or by way of lease or occupancy, and no such release or extinguishment as aforesaid should be of any validity or effect unless the same were made to, or entered into with and accepted by Her Majesty, her heirs or successors. Provided always that it should be lawful for Her Majesty, her heirs and successors, by instructions under the Royal Sign Manual and Signet, or signified through one of Her Majesty's Principal Secretaries of State, to delegate her powers of accepting such conveyances or agreements, releases or relinquishments, to the Governor of New Zealand, or the Superintendent of any province within the limits of such province: Now we do hereby delegate to you all and every of the said powers, by the said Act reserved to us, which are hereinbefore recited.

Fifteenth. And whereas, in and by our said Commission, we have granted unto you full power and authority in our name and on our behalf, to grant to any person convicted of any crime in any of the tribunals of our said colony an absolute or conditional pardon: Now we do enjoin and require you, in every case where you shall be applied to for any such pardon, and in any case whatever in which sentence of death shall have been passed, to obtain from the judge who presided at the trial of any such offender a report in writing of the proceedings upon

any such trial, and of the evidence then adduced, and of the opinion of such judge whether the conviction of any such offender was obtained in due course of law, and whether any reason exists for the total or partial remission or commutation of any such sentence.

Sixteenth. And we do strictly command that you do not upon any occasion permit any such kind of punishment to be inflicted as can in no case be inflicted by the law of England.

Seventeenth. And whereas great prejudice may happen to our service and to the security of our said colony by the absence of the Governor, you shall not, upon any pretence whatever, quit the said colony, excepting for the purposes contemplated in our said Commission to you, without having first obtained leave from us for so doing under our Sign Manual and Signet, or through one of our Principal Secretaries of State.

83 Similar petitions were forwarded to the Queen and both Houses of Parliament from the Provincial Council of Auckland in 1853, 1855, and 1862. The petitions of 1865 were to the Queen only. One of these was signed by nearly every male adult in the province.

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These texts can potentially be used as the basis for additional TEI tagging or for some other etext or ebook project, but we ask that you let us know before you start, so that we can coordinate work on that text and make sure that we are not working on it simultaneously. We would like a copy of the improved text for our collections.

Request for permission form