The constitution of New Zealand: despatch from Sir George Grey to the Right Hon. Earl Grey online

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Great Britain

Colonial Office

The Constitution of New
Zealand




THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES



5SI!i




THE CONSTITUTION



OF



NEW ZEALAND.



Despatch from Sir George Grey



TO THE



Right Hon. Earl Grey,



aurfelanli, Nrbj 2talanli:

H. BRETT, GENEEAL PRINTER, SHORTLAND & FORT STREETS.

1891.



THE CONSTITUTION



OF



NEW ZEALAND



Despatch from Sir George Grey



Right Hon. Earl Grey.



"auchlauD, Xrio Scalauti :

II. CkETT, GkNEUAL PklNTKR, ShuRTLAND AND FoRT STREETS.

1S91.



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PREFACE.



The subject of colonial federation having again
come to the front, it has been thought desirable to
republish a despatch written more than forty years
ago upon this question.

The result of that despatch was the enactment
by the British Parliament of " An Act to grant
a Representative Constitution to the Colony of
New Zealand/' This was the most liberal con-
stitution which had at that time been conferred
upon any British Colony, and formed the basis of
the constitution given to Canada.

The Colonial Minister, Sir John Packington, in
transmitting to the (Governor the New Zealand
Constitution Act, July 16th, lHo'2, informed him as
follows : — "They (Her Majesty's Government; are,
in fact, well assured that the measure itself, now
reduced into a law, owes its shape in great degree
to your valuable suggestions. It has been thought
advisable that the Provincial Councils should
consist of a single Chamber, consisting wholly of
elected members.

'' Her Majesty's Government determined on
submitting to Parliament another suggestion,
originated by yourself, although not actually
reduced by you into practice, that of rendering the
Superintendents of Provinces elective. They are
aware that this is an innovation on ordinary usage.
. . . But they have not, on this account, thought
it necessary to withhold what they have every
reason to believe will be regarded by the colonists
as a valuable concession, whilst they feel a confident
hope that the electors will form the best judgment
as to the persons qualified to serve the public
interest in offices for which a knowledge of the
wants and circumstances of each locality is
peculiarly necessary.



1296411



4 PREFACE.

" Another point in which you will observe that
your own sugg-estions have been adopted is the
leaving the power ot allowance and disallowance of
Provincial Ordinances in the Government, instead
of in the Crown."

Notwithstanding these concessions on the part of
the Home Government, Sir J. Packington refused to
allow the Legislative Council, or Upper House, to
consist of elected members, as had been recom-
mended. The Imperial Parliament therefore
decided that the members of the Council should be
nominated by the Crown for life. This change
destroyed the balance of the proposed New Zealand
Constitution.

The objects specially contemplated in drafting
that constitution had been to do away with various
restrictions upon freedom of election and legislation,
which at that date prevailed. To do away with the
necessity for any special rank, or money, or
property qualifications, to enable a person to enter
a legislative body. To secure what was then
regarded as a low rate of franchise. To establish
Provinces with the most ample powers of real local
self-government. To enable the people of such
Provinces to elect their own Lieut. -Governors
(Superintendents). To show in practice that at
least in populations which were not numerous one
Chamber was sufficient to insure good legislation.
To enable the Provinces to alter their form of
government as they might desire, without reference
to any outside authority, and generally to prevent
such external authority from interfering with the
internal legislation of New Zealand. To secure the
equitable application of the revenues of the entire
colony throughout its whole extent. To provide for
the payment of members.

It was thought necessary to place one restriction
on the powers of the Provinces. When the United
States federated, each State claimed to be a
Sovereign State, independent in every respect of
any other authority. The States then agreed to
divest themselves of the power of legislating on
certain subjects of common interest, and to vest the
power of legislating on these in the General
Congress, The legislative powers of Congress



PREFACE. 5

were thus shut up within well-defined boundaries,
which could only be extended by the unanimous
•consent of all the States. Hence, in the event of
any question of paramount interest arising — such
as slavery — if the majority of the States and people
desired a general law, modifying or abolishing such
an institution, the minority might refuse the
Congress the power of making such a law. It was
difficult to see how such an emergency could be
met without recourse to arms. It appeared, there-
fore, to be prudent to make some provision for
meeting such a possible contingency. These views
were acquiesced in by the British Government and
Parliament. The General .Vssembly of New
Zealand, which was composed of the representative
of the Queen, the Legislative Council, and House
of Representatives, was therefore regarded as the
sovereign power, which had devolved certain of its
powers of legislation on the Superintendents and
Legislative Councils of Provinces, on the condition
that it could resume any of these powers if it
deemed it necessary for the common good to do
so.

By clause 10 of the New Zealand Constitution
Act, it was therefore enacted that it should not be
lawful for the Superintendent and Provincial
Council to make or ordain any law or ordinance
relating to certain named special purposes of
general interest, which concerned the welfare of the
entire colony, and in the fifty-third clause of the
same Act a further provision to the following
effect was enacted : — " The laws so to be made by
the General Assembly shall control and supersede
any laws or ordinances in anywise repugnant
thereto, which may have been made or ordained
prior thereto by any Provincial Council, and any
law or ordinance made or ordained by any Pro-
vincial Council in pursuance of the authority herein
conferred upon it, and on any subject whereon,
under such authority as aforesaid, it is entitled to
legislate, shall so far as the same is repugnant to,
or inconsistent with any Act of the General
Assembly, be null and void."

Extensive as were the then unusual powers
gfiven by their constitution to the Provinces of New



6 PREFACE.

Zealand, and to its people, it is universally ad-
mitted that they used them well and wisely ; that
they so governed themselves that they prospered in
no ordinary degree, and were truly loyal and
contented, whilst in the Provincial Councils were
educated that class of statesmen who have ruled
New Zealand almost to the present time.



DESPATCH FROM SIR GEORGE GREY TO
THE RIGHT HON. EARL GREY.



No. 121 — Legislatwe.

Government House, Wellington,
August 30, 1851.

M\ Lord, — Adverting to my despatch, No. 123^
of the 24th October, 1S.")0, in which I transmitted,
for your Lordship's information, the draft of a Bill
for constitution of Provincial Councils which I in-
tended to introduce into the General Legislative
Council of these islands, I have now the honour to
enclose that Ordinance in the form in which it
passed the Council and received my assent.*

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

•S. In doing so it will however be necessary for
me to advert to what took place in 184G, when
Parliament passed an Act to make further provision
for the government of the New Zealand islands, in
conformity with the provisions of which a Charter
was issued, and a Constitution conferred upon these
islands, regarding the general provisions or details
of which, it was, from want of time, not found prac-
ticable to afford me any opportunity of making a
report or offering any opinion.

4. When that Constitution and the Instructions
which accompanied it arrived in the colony, very
serious disturbances prevailed ; and the native
population having for some time previously been
in a state of great excitement and rebellion, I
thought it would be imprudent to attempt imme-
diately to introduce certain provisions in the
Charter, Constitution, and Instructions, which had
been sent out to me, and I reported to your Lord-
ship accordingly. With a promptitude and gene-
rous confidence in my prudence and judgment for

' Provincial Councils Onlinance, Sess. XI., No. 6.



8 THE NEW ZEALAND

which I shall always feel grateful, your Lordship
acceded to my views ; and upon your recommenda-
tion Parliament passed an Act in 1848, suspending
for five years the constitution which had been be-
stowed upon these islands, and further authorizing
me, during those five years, to constitute in Xew
Zealand Provincial Councils, to be composed either
wholly of elected, or partly of appointed and partly
of elected members, as might be thought most de-
sirable.

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

0. I also felt that I had a peculiar and very deli-
cate duty to perform towards Parliament, because
the powers with which I was intrusted by the Act
1 1 \^ict., cap. .")., of constituting Provincial Councils,
were very great powers, such as I believe had
before that time rarely, if ever, been entrusted to a
Colonial Governor ; and Parliament, at the same
time that it had intrusted me with these ample and
unusual powers of legislation on such important
subjects, was itself legislating upon the same
subjects, with reference to colonies in the immediate
vicinity of these islands. I judged therefore that it
was my duty, as an officer of a great Empire, in-
trusted with high powers, not to attempt rashly to



CONSTITUTION ACT. 9

set up my judgment against the opinions of the
tnajoritv of the great council of that Empire, and
by legislating in a manner different from that which
they thought proper to pursue in immediately
neighbouring colonies, create, perhaps, great em-
barrassment and m.uch discontent. But I thought
it rather my duty, in any Ordinances which I might
pass for the creation of local legislatures, to act, in
as far as the circumstances of this country would
permit, in perfect accord and harmony with the
system which Parliament might pursue ; and then,
in reference to any other changes I might deem
necessary, to make recommendations on the subject
to your I^ordship, in order that they might be sub-
mitted for the consideration of Parliament.

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

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

0. In making such a report as I have above indi-
cated, I shall assume, in conformity with the terms
of your Lordship's despatch. No. 23, of the l!)th



lO THE NEAV ZEALAND

February, 1851, that (although they have not yet
reached me) Instructions have been issued to me
by her Majesty, leaving me unfettered discretion
as to the number of provinces into which New
Zealand should be divided ; and I shall further
report fully the mode in which I intend temporarily-
to give effect to those instructions and to the en-
closed Ordinance, so that my proceedings may, in
as slight a degree as possible, interfere with any
arrangements which Her Majesty Government may
see fit to make regarding the form of constitution
for New Zealand, whether they may either adopt
in whole or in part, or entirely reject, the plan of
institutions embodied in the enclosed Ordinance
and this report.

10. In order that the present state of these
islands, and the condition of the several races in-
habiting them, for whom representative institutions
are to be provided, may be clearly understood, and
that the subject may stand in a complete form, it
will be necessary for me to incorporate into the
present despatch, with such modifications as carry
the subject up to the present time, several of the
first paragraphs of a despatch, number 93, which I
addressed to your lordship upon the 0th of July,.
184!).

1 1 . The group ol colonies comprised in the New-
Zealand islands are composed at present of what
may be termed nine principal European settlements,
besides smaller dependencies of these. The largest
of these settlements contains about nine thousand
(9,000) European inhabitants ; and their total
European population may be estimated at about
twenty-six thousand souls. These settlements are
scattered over a distance of about nine hundred
miles of latitude ; they are separated from each
other by wide intervals ; and communication, even
for persons on horseback, exists only between three
of them. Their inhabitants are chiefly British sub-
jects, but there are amongst them many Americans,
French, and Germans. The majority of them have
never been trained to the use of arms. The settlers,,
both in the main colonies and the subordinate de-
pendencies, have occupied the country in so scat-
tered and irregular a manner, that it would be found



COXSTITUTIOX ACT. I I

impossible to afford them efficient protection. They
are generally without arms, and would probably
be deprived of them by the aboriginal population if
they possessed them at any remote stations.

VI. The wide intervals between these European
colonies are occupied by a native race, estimated
to consist of one hundred and twenty thousand
(120,000 souls, a very large proportion of whom
are males capable of bearing arms. These natives
are generally armed with rifles or double-barrelled
guns ; they are skilled in the use of their weapons^
and take great care of them ; they are addicted to
war, have repeatedly in encounters with our troops
been reported by our own officers to be equal to
any European troops, and are such good tactitians
that we have never yet succeeded in bringing them
to a decisive encounter, they having always availed
themselves of the advantages afforded by their
wilds and fastnesses. Their armed bodies move
wdthout any baggage, and are attended by the
women, who carry potatoes on their backs for the
warriors, or subsist them by digging fern-root, sa
that they are wholly independent of supplies, and
can move and subsist their forces in countries where
our troops cannot live.

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



12 THE NEW ZEALAND

this country, even better equipped than our own
troops.

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

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

IG. With these characteristics of courage and
warlike vagrancy, the Maories present, however,
other remarkable traits of character. Nearly the
whole nation has now been converted to Chris-
tianity. They are fond of agriculture, take great
pleasure in cattle and horses ; like the sea, and form
good sailors ; have now many coasting vessels of
their own manned with Maori crews ; are attached
to Eurbpeans, and admire their customs and man-
ners ; are extremely ambitious of rising in civiliza-
tion and of becoming skilled in European arts ; they
are apt at learning ; in many respects extremely



CONSTITUTION ACT. 1 3

conscientious and observant of their word ; are
ambitious of honours, and are probably the most
covetous race in the world. They are also agreeable
in manners, and attachments of a lasting character
readily and frequently spring up between them and
the Europeans. Many of them have also now, from
their property, a large stake in the welfare of the
country ; one chief has, besides valuable property
of various kinds, upwards of five hundred pounds
(£500) invested in Government securities ; several
others have also sums of from two to four hundred
pounds (200 to £400! invested in the same securi-
ties.

17. A consideration of these circumstances will, I
think, lead to the conclusion that any attempt to
form, in those portions of these islands which are
densely peopled by the natives, an ordinary Euro-
pean settlement, the inhabitants of which produced
all they required, and were wholly independent of
the native race, must end in failure. The natives
in the vicinity of such a settlement, finding them-
selves excluded from all community of prosperity
with the inhabitants, would soon form lawless
bands of borderers, who, if they did not speedily
sweep away the settlement, would yet, by their
constant incursions, so harass and impoverish its
inhabitants that they would certainly soon with-
draw to the neighbouring Australian settlements,
whefe they could lead a life of peace and freedom
from such incursions. Upon the other hand, how-
ever, it would appear that a race such as has been
described could be easily incorporated into any
British settlement, with mutual advantage to both
races ; the natives supplying agricultural produce,
poultry, pigs, and a constant supply of labour
(although yet for the most part rude and unskilled) ;
whilst, upon the other hand, the Europeans would
supply the various manufactured goods required by
the natives, and provide for the manifold wants
created by their increasing civilisation. Such a
class of settlements might easily grow into pros-
perous communities, into which the natives, with
characters softened by Christianity, civilization, and
a taste for previously unknown luxuries, would
readily be absorbed. This process of the incorpora-



14 THE NEW ZEALAND

tion of the native population into the European
settlements, has, accordingly, for the last few years,
been taking place with a rapidity unexampled in
history. Unless some sudden and unforeseen cause
of interruption should occur, it will still proceed,
and a very few years of continued peace and pros-
perity would suffice for the entire fusion of the two
races into one nation.

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

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

20. The central mountain range throws off also
spurs or ridges of very difficult mountainous country
in various directions to the coast, the valleys be-
tween 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 Rangi-
tikei, 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 exist-
ing between the several principal settlements.

21. In the plains in the Northern Island through



CONSTITUTION ACT. 1 5

which the above named rivers flow, and at points
where the coast line indents these plains with road-
steads or harbours, are situated the principal
European settlements ; whilst the Maori population
inhabit the central mountain range, or are distri-
buted in the small villages scattered along the