LORD LYTTELT ON
then rose to move for "certain papers relating to New Zealand;" and to call the attention of the House to the proceedings of the Governor of New Zealand in giving effect to the Act for granting a representative constitution to that Colony. The subject had already been discussed in the other House of Parliament, and as he considered the defence of the conduct of the Governor quite unsatisfactory, he felt bound, in deference to 244 the wishes of many of the colonists, to bring the matter under the notice of their Lordships. He admitted that in many respects Sir George Grey had shown himself not only an able but a good and successful Governor. He had been so financially beyond all question. He had maintained peace, discipline, and order—and although there had been some exaggeration in this respect on the part of his admirers, he was willing to admit that he had dealt successfully with the native population. But he had shown himself unfitted for the introduction of a constitutional system for the English people, and it was much to be regretted that the inauguration of that system had been intrusted to his hands. The noble Duke was aware that there were many complaints against the Governor of New Zealand; but on the present occasion he proposed to confine his remarks to the proceedings of Sir George Grey under the Constitution Act of New Zealand, chiefly as to his mode of dealing with the waste lands of the Colony, and his delay in summoning the General Assembly. It had been said that it was not likely Sir George Grey could have mismanaged affairs under the Act, when ho himself had framed and suggested it. That statement was inaccurate; but even if accurate it would not be relevant. It was not correct to say that the measure suggested by Sir George Grey was substantially in all respects the same as the Act which passed. Sir George Grey proposed that the Legislative Councils should be formed on the old model, and that one-third should be nominated by the Crown. He did not propose to give the colonists the control over their own land—he did not propose to give the colonists the power to vary their own constitution, nor to vary the sums paid under the civil list. He (Lord Lyttelton), however, did not dwell upon this, because, in any case, it would only show, assuming that mismanagement could be proved, inconsistency between the professions and the acts of the Governor. Now he had always felt that the late Government, whatever their other merits and demerits, was entitled to lasting gratitude from all persons interested in colonial affairs, for the Constitutional Act of New Zealand. Well, "corruptio optimi pessima;" and the more welcome and the more suitable was that great gift to the colonists, the worse was the case that it should have been marred and embittered in the giving. He said "welcome and 245 suitable," and he dwelt more on the latter than the former; for the question was, not what the colonists wished for, but what duties they ought to be required to perform. He did not doubt that the acts of Sir George Grey were acceptable to many persons in the Colony. They were acceptable not only to all the land sharks and speculators in the community, but to those who entertained a strong opinion as to the necessity of a reduction in the price of land, and who, provided they could obtain what they required, cared very little about the means employed for that purpose. The question for the consideration of their Lordships was, what were the intentions of Parliament on the subjects to which he was now directing their attention? He would first take the price of land. The distinguishing feature of the constitution of New Zealand was that Parliament conceded to the colonists the control over their waste lands; and considering the circumstances of the case, he admitted that to have been a wise and a just concession. The concession was made to the colonists themselves, in their own constitutional assembly. The complaint against Sir George Grey was, that upon that great concession being notified in the Colony, he took upon himself to exercise that great authority, given not to him, but to the colonists; that he issued, almost immediately, a proclamation on his own authority, making the most sweeping changes in the whole system of the price of waste land, lowering the price one-half in some cases, and three-fourths in other cases. He did not wish to dwell further on the detail, but to direct the attention of their Lordships to the principle. No doubt Sir George Grey might have done worse, for ho might in strict law have followed the example of his predecessor, and brought down the price of land to a penny per acre. Now, what was the justification offered for Sir George Grey? There were two clauses in the Constitution Act of New Zealand bearing on this point. One of them gave power to the General Assembly to make laws for regulating the sale and disposal of waste lands, providing that, until the Assembly should otherwise enact, it should be lawful for Her Majesty to regulate such sale by instructions issued under the royal sign manual. The justification of the Governor was founded on a subsequent clause, which provided that it should be lawful for Her Majesty, by letters patent or signified through one of the principal Secretaries 246 of State, to delegate to the Governor any of the powers reserved to Her Majesty respecting the regulation and sale of waste lands; and the case of the Governor, founded on the clause, was contained in the preamble of his proclamation, stating that such power had been "delegated to the Governor by instructions received from Her Majesty's principal Secretary of State for the Colonies." Now, the question was whether these words were literally correct or not. So far as we were informed they were not even literally correct, for no such instructions were to be found. Certainly he was almost compelled to believe that such instructions had been issued, because he had been told so by the highest authority, and therefore he had moved for them; but he was bound to say that he suspected there was some confusion of memory on the subject, and that what was really referred to was a document which did appear, and which did not by any means bear out the conclusions founded upon it. Two despatches were written by Sir J. Pakington shortly after the passing of the Act, the first of them dated the 16th July, the second dated the 21st July, 1852. The latter despatch informed the Governor that he had the power to deal with the price of these lands, but stated that it was by virtue of the despatch of the 16th of July. Now, that despatch contained no such power. He found, too, from a statement in a colonial newspaper, that the civil secretary at Wellington stated that no such instructions had been received since 1850; and he presumed that no one would argue that either a general transmission of an Act providing for the conveyance of such a power, or an erroneous reference in a subsequent despatch, as if such a power had been given, would be enough for the purpose. Nevertheless, he would assume that such instructions had been given; but he denied that they could go beyond the powers of the Act itself, and he contended that it did not give the Governor the power of dealing with the price of waste lands. The first clause of the Act conferred an unreserved power on the Assembly to make laws for regulating the sale of waste lands, but the power which it conferred on the Crown was to regulate them by instructions under the royal sign manual, that is, according to the existing law; and the reduction of price was in direct contravention of the Act of 1851. It was not a simple delegation of power, but the powers were to be delegated or issued under the 247 Royal sign manual. The instructions which he wished to see were the instructions so issued. There was a strong presumption that the powers were not so conferred, because in the papers on the table it would be found that Sir John Pakington did delegate the power of dealing with the land in Canterbury without any instructions under the sign manual. Next, if it was allowed that the Governor had an unlimited discretion to deal with the price of land, he contended that what he did was a gross abuse of that discretion. He could conceive the possibility of cases in which it might have been expedient to give the Governor an unlimited discretion in dealing with waste land. There might be cases of individual hardship and peculiar dealings with the natives which might make the use of such an authority desirable; but any such power ought to be exercised with the greatest jealousy and care, and only in exceptional cases, instead of universally. There were also grave faults of detail in the proclamation, such faults as that of throwing open, contrary to established rule, great masses of land without any survey, of placing an uniform price on land in settlements of most various circumstances—the necessary instability of an arrangement which must needs soon come to be reviewed and perhaps reversed by the Assembly, and the absence of any proper provision for priority of choice in the selection of land. He would now pass to another point, and state a fact which would startle those persons who took an interest in the subject. The view which he had taken was taken also in the Colony, and was submitted as a strict point of law to the Supreme Court. That Court twice over, after deliberate argument, decided that the proclamation was illegal, and a solemn injunction was issued by the Court declaring that illegality, and restraining all parties from acting on the proclamation; but the Governor took no more notice of that injunction than if it had been mere waste paper, and the Supreme Court an entire nullity. What would have been the course followed by the Court of Queen's Bench in this country under its present or still more its late head, if its injunction had been dealt with in such a manner? The persons disobeying it would have been committed. Assuredly there was no danger of any such proceeding being taken in New Zealand. From the system that had been pursued in our Colonies, they 248 were in many of these respects some one hundred years behind this country. It was just 100 years since, in this country, the Crown had been put on that great reform in our constitutional system, the judicial independence of our tribunals. Such was not the case in any colony, and a judge was there liable to be suspended and his salary stopped by the executive authority. The answers which had been given to the charge were so strange as to be almost unintelligible. Some persons had even questioned the issuing of such an injunction; he could only say that the fact was quite notorious. It had also been said that the Governor was not aware of the existence of such an injunction. Such an excuse could in no case be admitted, for the Governor was bound to know of the proceedings of his own Supreme Court. But besides this, in the blue book it would be seen that the Governor himself sent home copies of letters, distinctly informing him that the injunction had been issued. Another defence set up was, that Chief Justice Martin had reviewed and reversed the decision; but that was both untrue and impossible, for he had no such power of reviewal nor reversal. Then, again, it was said that the Governor received information that the injunction was not to be prosecuted by its promoters; but that was a bitter mockery, for if so it was because the Court was too weak to act upon its authority. But it was beside the question, for the fact that the opinion of the Court had been pronounced was alone material. Assuming, next, that the Governor had acted perfectly right, that he felt it his duty to take into his own hands the power which was given as a permanent authority to the colonists, could there be a stronger argument for his calling into existence, at as early a period as possible, the General Assembly, on whom the power of dealing with land had been conferred? The Act arrived in the Colony on the 22nd of December, 1852. The Governor, who was intrusted with the power of carrying it into operation, left the Colony about the 6th of January, 1854, and the General Assembly met, or was to meet, on May 24th last. This delay was enormous and excessive, and could not possibly be justified. In answer to that charge, it was said that the Governor had used all possible expedition, and that it was not possible to call the Assembly together earlier. He did not desire to impute wilful misrepresentation to any one, but as to this alleged 249 fact of a physical impossibility, he must say, credat Judæus. Such an excuse never could have been made in the Colony; neither the Governor nor any of his officials ever hinted at any such difficulty or impossibility; nor had any friend or opponent conjectured it. Addresses from the councils of Wellington and Nelson—one of them, at least, drawn in a spirit friendly to the Governor—said they could not conceive any reason for the delay. He had recently seen a colonist, just arrived from New Zealand, who told him such a plea was never set up in the Colony, and if it had it would utterly have been scouted; and lastly, he had the evidence of the Governor himself. He himself said, in December, 1852, and again in February, 1853, that the Assembly could meet on the 30th of September, 1853; but he made it impossible by his own acts. He took nearly the full time before he proclaimed the Act—he took the full time to the last minute before he caused the writs to be issued for the return of the Members to the Legislative Assembly—and he did not name any time at which the writs were to be returned. In his own former ordinance he had specified sixty days for the northern province, ninety days for the southern, as the utmost time needed for the return of the writs. The returning officers were his own servants, and he should have required the returns by a certain day. It was then said, that the Governor was unable to convene the General Assembly until the writs had been returned. But there was no such proviso in the Act. And the same ships that brought back the writs might have brought the Members also; so that the Assembly might have met as soon as the writs had been returned. It was said, further, that he could not issue the writs until he knew who the electors were to be. But why was it necessary that the electors should be known before the writs were issued, and their return in due course called for? It was said, also, that the Governor had so much to do under the Act that it was impossible for him to proceed with greater despatch than he had done. With respect to this, he must say that he did not think the friends of Sir G. Grey acted very wisely in calling attention to his proceedings under the ordinance for the establishment of provincial councils; for, although it was quite true that in some important respects the two Acts were very different, in many minor points they were precisely the same; and provisions had been made with respect to 250 electoral districts, to the qualifications of electors, to polling places, and to other matters of detail, a year or two before the Governor was called upon to put this Act into operation. He had, therefore, nothing to do but to reprint what was ready to his hand. There were one or two consequences of this delay to which he would call the attention of the House. It had caused an entirely illegal appropriation during several months of the revenue of New Zealand. The Governor had said before that he saw no difficulty whatever in the General Assembly being called together by the 30th of September; and, accordingly, under the provisions of the old constitution, he had caused an appropriation ordinance to be passed, which expired upon that day. After that time, from the 30th of September until May, there was no legal authority in the Colony for the appropriation of the public money. It was said that that was an unfortunate dilemma—that it was the fault of the Act of Parliament, which only enabled the General Assembly to deal with the revenue raised by itself. But it was not the habit of the Parliament of England to leave important matters of that kind to the chances of an unfortunate dilemma, and if there was a difficulty in convening the General Assembly at the time which had been named for its meeting, there was at all events a power of calling the old council together, to which the power in such a case was distinctly continued in the Act. It was said that he acted in the spirit of the Act; but there was no difficulty in acting both in its spirit and its letter. The Governor appropriated two-thirds of the revenue to the provincial councils and one-third to general purposes; but that was according to his sole judgment, whereas it was a matter reserved for the General Assembly. The Act provided that the General Assembly should take whatever portion of the revenue it required, and should give the surplus to the provincial councils. By such proceedings as these the proceedings of Parliament had been set at nought. But let their Lordships observe the effect on the provincial councils. It had almost compelled them—at all events had strongly tempted them—to become participators in this illegal appropriation of the revenue of the Colony. Some of them had yielded to the temptation, while others, refusing to receive what the Governor had given, had been obliged to raise a revenue themselves within their own limits, contrary, no doubt, to the ge- 251 neral intention of the Act of Parliament, but in the exercise of their general legislative powers, and in an inevitable choice of difficulties. It was a cruel addition to their ordinary duties to impose upon them a responsibility of this kind. But another effect of the delay was obviously to cripple these provincial assemblies in dealing with their own resources. Their Lordships were aware that in this Act, as in all similar Acts, several important matters were reserved to the General Assembly, and the provincial councils were forbidden to deal with them. Still, although they were forbidden to deal with them, they were matters of great importance as affecting the interests of the provinces, who naturally looked to the General Assembly to know to what extent they were to have power to deal with those subjects, or what the General Assembly would do for them. He need only enumerate some of the questions to which he was referring. They included, among other things, the regulation of the post office, the law of bankruptcy, the regulation of marriages, and, above all, the dealing with waste lands. Now, how could the provincial councils properly discharge the important functions which devolved upon them until they knew whether or how far they were to have power over their own resources—over the waste lands within their own limits? Yet the provincial councils had not known—and for aught he knew they did not know to this day—whether they were to have this power or no. So much for the Governor's proceedings with respect to the representative part of the General Assembly; but, besides that, he was called upon by Sir John Pakington to proceed without delay to the selection of the no-mince part of that Assembly; and instead of obeying those instructions, he had not selected them at all. He believed the only answer upon this point was, that he had waited to see what Members would be elected; but this was no answer, for the proper course for the Governor to have pursued would have been to have at once selected those whom he thought most fitting to be nominated; and if they had subsequently been elected also, they must have done what was always done in the case of a double election in England, and have made their own choice as to the character in which they would serve. He had moved for a paper upon another subject, which was not of so great importance, but which still he was anxious to see. It concerned the leave of absence given to the Governor; 252 for he (Lord Lyttelton) would not believe, until he saw it, that it was ever intended he should leave the Colony, until the General Assembly had been called together, and he had seen the constitution in operation. In spite of all this, Sir George Grey had been rewarded and promoted; but, notwithstanding his reward and promotion, he could hardly think the noble Duke would defend him with respect to the conduct to which he had referred. It was a right principle to uphold and defend as far as possible the colonial Governors, but there were things which were more important still—the rights and interests of the colonists, obedience to Parliament, and respect for the law. He well knew the immeasurable insignificance in which such subjects appeared at home, and if these matters of which he had been speaking were matters which should properly he left to the colonists themselves, he should be very glad if the people of this country cared even less for them than they did. But when political franchises were given, as in the case of New Zealand, some time after a Colony bad been established, they must needs be given definitely and exactly through the supreme executive authority in the Colony, acting in behalf of the Crown; and the matter was one which ought, above all others, to be carefully watched at home. He knew how hopeless it was that this should be the case now; but he thought it might be a satisfaction to the colonists of New Zealand that one voice at least in that place—and that voice one to which from circumstances they had perhaps some reason to look—should be raised against proceedings he really believed as arbitrary and indefensible as had ever been brought under the notice of Parliament. The noble Lord concluded by moving—.That an humble Address be presented to Her Majesty, for Copies of any Instructions not already laid before Parliament from the Secretary of State to the Governor of New Zealand, with reference to the Regulation of the Price of Waste Lands during the Time previous to the first Meeting of the General Assembly of the Colony: And also, a Copy of the Letter from the Secretary of State to the Governor of New Zealand giving him leave of absence.
§ THE DUKE or NEWCASTLE
My Lords, I most sincerely deplore the present state of this House; for I cannot but feel that not only is it difficult in addressing a House, with such an attendance as the present, to enter at that length into the answer to my noble Friend which I feel is due to the gentleman who has been at. 253 tacked; but I regret it, also, because I do think that when the character of an eminent man, and one who has rendered great public service, is attacked, it would be desirable for his sake, and for the sake of the public, that a greater number of your Lordships should be present, and should hear both the attack and the defence. My Lords, my noble Friend began his statement by saying that he had many causes of complaint against Sir George Grey, but that he would confine himself to only two or three. Now, though undoubtedly it may seem inconsistent with what I have just said as to the state of the House, nevertheless, I cannot help deploring that my noble Friend did not mention in detail the whole of the causes of complaint which he feels to exist against the late Governor of New Zealand, because undoubtedly it is not altogether fair—I am sure my noble Friend did not intend to act unfairly—but it is not quite fair that, in attacking the character of a public servant, he should begin that attack by stating that there are many causes of complaint, and yet only enumerate a few of them;—for the public, being left in the dark as to what those other causes of complaint are, may be led to believe that they are of a very important and serious character; whereas I am myself inclined to think that my noble Friend has not brought them forward to-night because he has himself, by subsequent events, become convinced of the exceedingly trivial and insignificant character of those complaints, and feels that they are not worthy to be laid before your Lordships' House. I can only say I have attended carefully to those other causes of complaint as I have heard them, or as they have been laid before the other House of Parliament, and I came down here this evening fully prepared to meet every one of them if my noble Friend had brought them forward: at the same time, it would undoubtedly be unbecoming in me to enter upon any answer to attacks which have not been made here, and which, therefore, I am not called upon and should not be justified in entering on. But my noble Friend proceeded to concentrate his attack principally under two heads, branching collaterally into one or two matters of detail, to which I will call the attention of your Lordships by and by. These were—the conduct of the Governor in reducing the price of the waste lands, and the delay in bringing the constitution into operation. Now, my Lords, my noble Friend said that this great boon 254 of a constitution to New Zealand had been impaired and embittered by the way in which it had been given by Sir George Grey. These are undoubtedly strong words, and I think they require more startling facts, even if these facts could be substantiated, than my noble Friend brought forward to justify them. But I hope I shall be able to show your Lordships that those statements of my noble Friend cannot be substantiated, and I will take, first, the price of the waste lands, as that was the first in order in my noble Friend's speech.
My noble Friend says that this reduction of the price of land by the Governor was at variance with his duty and with all sound principle, and that he thought he might just as well have reduced the price of land to one penny an acre, as was done by the gentleman whom he succeeded in the Government—[Lord LYTTELTON: I said as regarded the strict legality of the act.] My noble Friend says now as regards the strict legality of the act. I shall come to that question presently; but I certainly misunderstood him; for I thought he was referring to the policy as well as to the legality of the transaction. However, I will first take the legality of this proceeding; and I must remind my noble Friend, when he throws this great doubt on the legality of the conduct of the Governor, that he was one with a great number of other gentlemen who did me the honour of waiting upon me at the Colonial Office some time ago to remonstrate against this and other acts of Sir George Grey. At that time the despatches had not been received from New Zealand, and, therefore, I was not in possession of that full information on this subject which I possess now. My noble Friend stated npon that occasion, that the deputation which came with him to make that remonstrance had differed most widely upon all other subjects up to that moment—[Lord LYTTELTON: That shows how bad the case was.] My noble Friend says now, that shows how bad the case was, but I am not by any means sure of that. It is capable of two different constructions. It may mean that gentlemen who have been thwarted by the Governor, combining together to attack him, have agreed to sink their differences for the time for the purpose of promoting their own views, and of thwarting his. But my noble Friend said that this proceeding of the Governor in reference to the waste lands was an illegal act, both as contrary to the Constitutional Act, and as 255 not being justified by the instructions which were given to the Governor by the Secretary of State. I at that time expressed extreme astonishment at this statement; but it was followed by another still more astonishing—that the deputation came with the authority of Sir John Pakington, who had been Secretary of State at the time when these proceedings had taken place, and who informed them that it had never been intended that any such act should be done by the Governor, and that no such instructions had been issued. I expressed astonishment at these statements, because there was an express clause in the Constitutional Act empowering the Secretary of State to give certain instructions to the Governor, and because I had seen, in my own office, a despatch from Sir John Pakington, giving to Sir George Grey the instructions which the Constitutional Act enabled him to give, for the purpose of carrying out this very power in reference to waste lands. My noble Friend says that at that time he made a mistake. Well, then, if my noble Friend made a mistake then, how is it that he comes down now, and, after admitting that it was a mistake, assures your Lordships that the Governor had no such powers granted him, and that he acted illegally? If he made a mistake then in telling me that no such powers had been granted, why does he repeat that statement now? [Lord LYTTELTON made an observation which was inaudible.] He stated then, that no such instructions had been given; he now states that there was no power given by the Act to issue them. My noble Friend may be a very good lawyer—but a lawyer drew this Bill; he was instructed so to draw it as to give such powers; he believed that he had given them; others, who have examined the Bill since, believe that it gives those powers; and with all respect for the opinion of my noble Friend, I am entitled to attach greater weight to the opinion of the lawyer who drew and of those lawyers who have since examined it, when they say that those powers are contained in it. This, at all events, I can positively say—that it was intended by the Government to give those powers, and that instructions, in accordance with those powers, were issued by Sir John Pakington. Well, so far as regards the legality of this transaction. Of course there remains another consideration. If it was legal, was it politic or wise? My noble Friend proceeded to say that even if 256 the legality of the conduct of Sir George Grey could be substantiated, he considered this one of the grossest abuses of discretion which any Governor had ever exercised. Now, I must say, from what has passed this evening, and from what I have heard elsewhere, that I believe my noble Friend was entirely ignorant of the circumstances under which this power was exercised. At the time when the instructions reached the Colony there was an uniform price of 1l. per acre upon all lands. And Sir George Grey had to consider what would be the effect of leaving the price of waste lands to be dealt with by the General Assembly. The whole power over waste lands having been conferred upon the General Assembly by the Constitutional Act when they met, he had to consider what it might be necessary for him to do in order to guard against the inconveniences which might possibly arise out of the exercise of that power. If this had been a case in which the Governor had proceeded to act in reference to these lands before the General Assembly met, for the purpose of depriving that Assembly of the power and privilege of dealing with them, I should have thought—and I so stated to my noble Friend when he called upon me—that there had been an improper exercise of discretion. But such was not the case. How, then, did the matter really stand? With respect to land then in possession of the Crown, with which the Assembly would have had the right to deal, it was of a very limited character indeed. The powers of the Assembly, therefore, with respect to waste lands, would have been of a most minute description. But there was another class of lands, over which the natives held rights, pertaining to them, not as individuals, but as tribes, which would have been a fertile source of discord between the English colonists and the natives. The natives had always, heretofore, refused to part with those privileges and rights except to a very limited extent, for various reasons, which I shall come to by and by. But I wish, first of all, to point out the position of the English colonists, and the state of opinion among them. There had been two parties among the colonists, holding, upon the land question, very different views. There was one party who held the opinion—which I must say appeared to me most just—that we had only a right to such lands as we could obtain from the natives by purchase. There was another party which maintained 257 that the Crown had a right, by virtue of its prerogative, to all lands to which no counter right could be substantiated by the natives. Your Lordships will see that such a proposition involved very dangerous questions, supposing it came to be disputed in the General Assembly; and it was under such circumstance that Sir George Grey, who had acquired an influence and a power over the natives which no English Governor had ever before possessed, employed that influence successfully in inducing them to do what I am confident, and I defy my noble Friend to dispute it, no other Governor could have persuaded them to do—he induced the natives having rights over a vast tract of land to abandon those rights which they had exercised, to turn over the whole for a very insignificant sum, and to expend the money which they so received in the purchase of so much of the land as they desired for their individual purposes. Thus by this means a most important part of the colony of New Zealand—the middle island—was almost entirely cleared of the rights of the tribes, and except those small portions which were purchased by the natives as individuals, the whole of the middle island became vested in the Crown—and it devolved on the General Assembly to deal with it. So far, therefore, from depriving the General Assembly of any rights or privileges which they would have possessed over the waste lands of the Colony under the powers of the Constitutional Act, he has not only handed over to that body the small district which then belonged to the Crown, but he has handed over with it the whole of the middle island, cleared of those rights and privileges which had been previously exercised by the tribes. The benefit, therefore, is far greater than it would have been if Sir George Grey had failed to act as he had done. But then, my noble Friend asks, why was it necessary, in order to carry out this arrangement, that he should lower the price of land? My answer is, that if my noble Friend had watched these matters more narrowly, he would have known that one reason why the natives had so obstinately persisted in refusing to dispose of their land at all, was the high price at which it was retailed to the colonists, and the immense advantages which were supposed to accrue to those who purchased it and then resold it to others. I dare say my noble Friend will say that the advantages at 10s. per acre were so enormous that 1l. per 258 acre, although double, will not affect the question. That may be so to our judgment, but we cannot deal with the native intellect or with native prejudices as we would do with Europeans; and in transactions with native tribes, whatever their whims and fancies, we must humour them to a certain extent—we must deal with them as we find them. There is no doubt they had refused to sell the lands up to that time, and there is no doubt that they did sell them at the time to which I have referred; and coupling these facts together, with another to which I have before alluded—that no other man than Sir George Grey could have accomplished this object—I say that, instead of blame, he deserves the thanks of the colonists. But my noble Friend said—and it did astonish me very much—that he could not conceive how the Governor could deal, upon one uniform plan, with all waste lands of the colony, considering the very different circumstances in which the settlements are placed. He did not deal with them upon one uniform plan. He did not reduce the price where he had reason to believe, from what had passed before, that such a proceeding might be detrimental to the interests of the settlement; and in that particular part of the Colony in which my noble Friend is more particularly interested—the settlement of Canterbury—he never attempted to introduce it in any way whatever; on the contrary, the proclamation which was issued expressly exempted Canterbury from its operation. Why, then, does my noble Friend say that Sir George Grey attempted to introduce a uniform system in the Colony when the proclamation shows he did nothing of the kind? But even if he had, he would only have been substituting a uniform price of 10s. per acre for what was before a uniform price of 20s. Well, now, my noble Friend proceeded to lay a very grave charge against Sir George Grey, for he stated that his conduct was so strongly disapproved that an injunction was obtained from the Supreme Court to prevent his carrying his intentions into effect. In the first place, I do not admit the fact that any great discontent prevailed with respect to the conduct of the Governor. I am aware that two gentlemen with whom I had been long on terms of intimacy, and for whom I feel the greatest possible respect, having just arrived from England, and knowing very little of the Colony but what they had 259 heard in England, did apply for an injunction to the Supreme Court against the Governor. But my noble Friend, I have no doubt unintentionally, and without weighing very well the force of the terms which he employed, stated that that injunction was issued against Sir George Grey. Now, my Lords, I deny that. The injunction never was issued. It was undoubtedly applied for, and was granted, but it never was issued. I am speaking in the presence of a noble and learned Friend who can set me right if I am wrong, but I think my noble and learned Friend will bear me out when I say that there is the greatest possible difference between the one and the other. My noble Friend says the injunction was treated as waste paper by the Governor. If it had been issued, that statement might have been justified; but I have said that issued it was not. Why, then, was not the Supreme Court moved to further action in the matter? My noble Friend—speaking not quite so broadly as some other people have done, but still with sufficient significance—says that the Court would not have dared to do so. Now, I must say that on such facts as are before us, on such evidence as my noble Friend possesses, it is a little too bad to imply—for it is an implication—such a charge against the late Governor of New Zealand. I do not know whether from the words of my noble Friend I should have understood its meaning, if this charge had not been made more specifically by others. What is it? Clearly that the Court did not dare to issue the injunction, although it was applied for and granted, because, under the rules affecting the Colony, the Governor had the power of superseding the Judges—a power granted whether rightly or wrongly we are not here to discuss—but granted, undoubtedly, to meet great cases of exigency and great cases of delinquency on the part of those Judges, and not for the purpose of vindicating any supposed privileges of the Governor. It is, therefore, to be supposed that no further action was taken—these gentlemen did not call on this Court to issue the injunction—out of consideration for the Judges, because they were under the impression that the Judges would be superseded by the Governor if they took that course, which they were bound to take, supposing their judgment to have been correct. My Lords, I say that to put forward such a subterfuge on the part of those gentlemen 260 who applied for the injunction, is unworthy of them. At the risk of all hazards to the Judges—if they really believed Sir George Grey would be so forgetful of his duty as to attempt anything so monstrous—I say without question, that these gentlemen, if they thought that this proceeding of the Governor ought to be prevented, were bound to have proceeded. Having applied for and obtained the injunction, they ought to have gone on to issue it, and then the legality of the matter might have been tried. My Lords, they did no such thing; the matter was permitted there to stand; and I say that Sir George Grey was not only justified under all the circumstances of the case, in proceeding as he did, but he had no other course to take.
But, my Lords, my noble Friend then proceeded to the other part of his case, to the delay on the part of the Governor, and the difficulties he threw in the way of the meeting of the General Assembly. Now, my Lords, to what does this charge amount? Does it mean that the Governor evaded the Act of Parliament? No, but that he literally fulfilled it. Does my noble Friend, or do those who have followed up this attack on Sir George Grey, intend to say that in any one instance the Governor exceeded the time within which each separate act was to be performed? No, they do not; but they say that he waited until the last day authorised by the Act of Parliament. Now, my Lords, supposing this to be true, which I am bound to say it is not, a more frivolous charge against a public man was never made. What was the meaning of Parliament giving this discretion, but that the Governor might be able to choose, within the prescribed limit, what might be, in his judgment, the best possible time for taking the necessary steps? You may say he judged rightly or wrongly; but to make it a matter of grave accusation, does indeed surprise me, and I think it will surprise your Lordships and all who look at the facts. I doubt whether, in any other instance, in bringing a constitution into operation, the latest day allowed by Parliament has not been uniformly taken, and I believe that in the case of the Cape of Good Hope—although I have not looked back to see—every single step in the proceedings was taken on the last day. But my noble Friend is wrong as to the fact; for the most important step towards setting the machinery in motion—the procla- 261 mation of the new constitution—was issued in three weeks after it reached the Colony, whereas the Act of Parliament allowed six weeks. Sir George Grey, therefore, on the very first opportunity that was afforded him, showed that his animus was not delay. Is it unfair to suppose that in the other cases there were good reasons for choosing the last instead of an earlier day? I have gone through all the various steps connected with this matter, and I must say that the twelve months for the whole transaction, from the beginning to the end, originally given by the Act, was a short time; but within that time everything was done. But the powers given to the Governor by the Act were in fact to frame a constitution; and to him were left all those matters of detail which in other cases have been carried out by the Secretary of State at home, or by some legislative authority in the Colony. He had to define the provinces, to define the electoral districts, to decide of how many Members the Legislative Councils should consist—of how many the General Assembly; to determine how many of these should be elected, and how many should be nominees; to decide who the nominee Members should be, and, in short, he would not say frame a Reform Bill, but to work out a vast number of preliminary details before the constitution could be brought into operation, requiring a great deal of local information, and necessarily occupying time. And when, in addition to these circumstances, you come to consider the great distance of these settlements from one another, and that the only means of communication is by water, and that, too, at uncertain times, I must say I see no reason for charging Sir George Grey with delay in bringing the constitution into operation, even if the Act of Parliament did not sufficiently shelter him from any accusation of that sort. So far from setting at nought the provisions of the Act of Parliament, I think I have shown that he has executed them at every step. My noble Friend said that it was intended by the Act that the six Legislative Councils of the provinces and the General Assembly should be brought into operation together. I do not know what clause in the Act he can quote to substantiate that statement. I can only say I know of no such provision; and having attended to the passing of the Bill through this House, I never heard anything in the course of its pro- 262 gress which indicated such an intention on the part of the framers of it. And of this I am certain, there were good reasons why such an attempt should not be made—why the Legislative Councils of the six provinces ought to meet before the meeting of the General Assembly. In the first place, it was desirable that each of the Legislative Councils of the provinces should have the opportunity of considering their local interests, and passing many laws of considerable importance, before the meeting of the General Assembly; and they availed themselves of that opportunity. But must it not be palpable to your Lordships, and to every one who considers the subject, that in a colony of small population like New Zealand, where you have to find persons to represent each province in the Legislative Council, and moreover to find competent parties for representatives in the General Assembly, that, as regards the composition of the General Assembly, if it is to be formed of the best materials, it must include many individuals who are also Members of the Legislative Councils of the provinces? And so, undoubtedly, is the fact. One of two results must have followed their meeting at the same time. Either the Legislative Councils could not have been brought into work in consequence of the absence of so many at the meeting of the General Assembly, or the General Assembly would be deprived of the advantage of such Members as belonged to the Legislative Councils. The whole machinery, therefore, in the first year would be brought to a dead lock, instead of into harmonious operation, by the fact of the Legislative Councils not having met in sufficient time before the meeting of the General Assembly. My noble Friend says that the defence made on the part of the Governor, that the writs were not returned for calling the General Assembly, is invalid because there is no provision in the Act which requires it. I must take the liberty of saying, that I think if he refers to the 44th clause of the Act, he will find it was required that these writs should be returned before the General Assembly is called together. But I say the Governor was justified in studiously watching every possible requirement to see that he kept within the letter of the law, because, on the part of many who are now complaining of the delay in bringing the constitution into operation, there was an indication of an intention to render the whole constitution null and void if the Governor failed in 263 acting legally in every step which he took.
My noble Friend then branched off into another topic—what he called the illegal appropriation of the revenues which stood over from the collections under the old system, to the Legislative Councils. Again I must dispute the illegality of this transaction. It has been held by lawyers, to whom the question has been referred, that the transaction was legal, and I believe there is nothing in the accusation of my noble Friend beyond the question, whether it was politic or right he should do so. I admit there is considerable perplexity in that part of the Constitution Act in which the Governor is called on to apply these revenues, and certainly it is no fault of the Governor that it was not made clear; for precisely the same provision was found in the old constitution, which the House will remember was suspended for four or five years, and at that time the Governor called the attention of the Secretary of State to the position in which he was placed by the perplexity attaching to that part of the Act; notwithstanding which remarks, precisely the same clause was introduced into the Act which passed two years ago, and, therefore, the Governor is not responsible for any consequent difficulty. As regards the appropriation being illegal, that can easily be tested. But I believe on the whole the Governor acted not only legally, but rightly, in the difficulty in which he was placed. The balance of the revenue, after meeting the charges specially cast upon it, had to be appropriated in some way. He felt that, with the old legislative body extinct, and the new one coming into operation (the Legislative Councils being assembled, and the General Assembly not yet called together), it was more in accordance with instructions on a former occasion—though there were no instructions which would quite meet this case—to band over the balance, divided equally, to the Legislative Councils, as it would place them in funds at a moment when it was impossible they could have any other funds at their disposal, and when it would, of course, cause considerable embarrassment if they were obliged to proceed either by borrowing money or without any money at all.
My noble Friend says that he considers that Sir George Grey's conduct in coming away at the time he did is most reprehensible, and he should be glad to see the terms in which my leave of absence was 264 couched. I say at once, Sir George Grey did not act at variance with the permission given by me in that despatch. When Sir George Grey applied for leave of absence, which I received within a fortnight of my appointment, I wrote, in reply, giving him leave of absence, but upon two conditions, that he should wait until the whole of the arrangements were made for bringing the Constitution Act into operation, and that he should be assured the state of the native population was sound, and that there was no apprehension of insurrectionary proceedings, as on a former occasion, in consequence of these free institutions being given to the Colony. Sir George Grey attended literally to these instructions. He waited until the last stage in bringing the Constitution Act into operation was reached, and he left the Colony in a state of profound peace and contentment, receiving addresses expressing regret at his departure, not only from the inhabitants who had proceeded from this country to colonise it, but from the natives; and those addresses, which I have seen, were of the most affectionate and interesting description. It is somewhat hard to charge Sir George Grey with culpability in leaving the Colony at the time he did. What were the circumstances under which he asked for leave of absence? Seventeen years of colonial services he could show, out of which he had been in England three months only—thirteen years and a half of continual service, during which he had never revisited this country. At the time he was serving in South Australia, and the colony of New Zealand was in the greatest possible difficulty and danger, he was earnestly requested by the then Secretary for the Colonies, the present Lord Derby, to proceed from South Australia to New Zealand as a means of saving that latter colony. Lord Derby pressed it on him as a matter of duty, and I must beg to read only a small portion of that despatch intimating the opinion the noble Earl then entertained of the services of Sir George Grey. Lord Stanley writes—After the repeated testimonials I have borne to the value of your public services in administering the government of South Australia, it would be very gratifying to me to prove my esteem of your public spirit and great ability, by proposing to you other offices of greater rank and superior emoluments; still I trust it will be a most welcome proof of the confidence Her Majesty reposes in you by inviting you to undertake duties more arduous and responsible, though recommended by hardly any other consideration. The necessity of a vigorous head in the government of 265 New Zealand is the single apology. To a man of your character, it will be ample apology for calling on you without previous notice, at some sacrifice and inconvenience, to proceed immediately to relieve Captain Fitzroy from that office.In a subsequent portion of the despatches the noble Earl shows what were his anticipations of Sir George Grey, from what be had accomplished. "I know," he says, "he will meet difficulties with a firm disregard of any responsibility in which evident duty may involve him." I say Sir George Grey has justified the favourable expectations on the part of Lord Derby; and now he is accused of coining home too soon. He has fulfilled the duties which devolved on him, and he has stayed at great inconvenience to himself. It may not be delicate to allude to the domestic concerns of any man, but when a public servant is attacked I feel I am justified in referring to them. What were the circumstances which induced Sir George Grey to apply for leave of absence at all? I knew them not at the time, but I have learnt them since Sir George Grey arrived in this country, and the circumstances are these:—Sir George Grey had left in England one relation, and, so far as I know, one only, whom he was most anxious to see again before death should preclude that possibility. He had left a mother in England, and he was desirous of coming home to see her, and for that purpose, and that alone, he applied for leave of absence. Sir George Grey knew she was in an infirm state of health, and that every month was precious. He nevertheless fulfilled the duties I had imposed on him. He remained twelve months to carry out the constitution in a manner which I confidently anticipate will be most advantageous. He remained to his own bitter cost. If he had come away earlier, he would have attained his object. Sir George Grey arrived in England to hear, before he landed, that that mother whom he had come 16,000 miles to see lay on her deathbed, and before he reached her residence she had departed this life; and is it not cruel that he should be accused of coming home at an inopportune moment, when he remained and fulfilled all the duties imposed on him, knowing he was running the risk of the sad event which occurred? What was the first act of Sir George Grey? Having attended to those melancholy duties, he came up to town. He had left the Colony in profound peace. 266 He found the mother country involved in a fearful and perhaps protracted war. He thought, under the circumstances, it was the duty of every man to be at his post, and on his first visit to the Colonial Office he told the permanent secretary, if it was thought desirable for the public interests, he was ready to return to New Zealand without a day's delay. That is the characteristic of the man, and of the public spirit which attaches to him. I do deprecate attacks on a man of that description, unless they can be borne out thoroughly by the facts. I have no doubt the noble Lord believes what he has been told, but I am confident further inquiry in the Colony will show there has been the greatest possible misrepresentation, and I say it is cruel that a man under such circumstances should have his hopes and his prospects blighted. I hope I am not departing from proper delicacy in divulging a private communication, but I must add to this that Sir George Grey has said to me, alluding to one of my last acts as Colonial Secretary—the appointment of him as Governor of the Cape of Good Hope—I feel the disadvantage under which a Governor must go to a new colony whose conduct has been brought in an adverse way before both Houses of Parliament. I know that imputations attach, or are likely to attach, even if they can be disproved, which in many instances they cannot without subsequent events. All I can say is, you have proved your good opinion of me by asking me to do further service to the country. I am gratified with that proof of approbation on the part of a public servant of the Crown, my superior in office, who has had the opportunity of judging of my conduct; but if, in consequence of these attacks, my means of usefulness are diminished, I hope you will press on your successor to reverse the proposal made to me, and to cancel it.This is the man whose part I have taken, and for doing which I have incurred the censure of my noble Friend. I will not defer to my noble Friend, or to any other man, in friendliness to free institutions; but at the risk of being considered as having departed from principles which I hold dear, I will not be a party to sacrificing an able public servant, who, I believe, has acted with proper discretion, and with a due sense of the responsibility attaching to him, and I rejoice that the last act of mine at the Colonial Office was to reward and promote such a man. My noble Friend says he can hardly believe that I will defend the conduct of Sir George Grey. I have defended it in all the points 267 which my noble Friend has attacked, and, as I have said before, I am ready to discuss every other accusation which may be brought against him. I have spoken specifically of Sir George Grey; but on behalf of the service generally I must say I cannot believe those are really the best friends of colonial government who bring accusations and charges against those who have performed the arduous duties of a Governor, without the clearest and most distinct proofs that everything they advance can be substantiated. Does my noble Friend really believe that it is for the advantage of the public service to bring public accusations against an able, disinterested, and honourable man like Sir George Grey? Our witty neighbours have taunted us with occasionally shooting an admiral pour encourager les autres. My noble Friend selects a Governor to attack, and he chooses, not one of inferior character, but one in high station, who is carrying out a plan which will be of great advantage to this country. That is the principal reason that I promoted Sir George Grey to be the Governor of the Colony of the Cape of Good Hope. It was because I had watched events in that Colony, I knew we had been involved in wars of long duration, and that on each separate occasion the main cause of those wars had been the ill-treatment of the native population—a spirit of encroachment on them which they would not endure—a want of dealing with the natives in an equitable and satisfactory manner. To save one or two millions more being spent in another Kafir or Zulu war was my paramount duty, and instead of selecting a man possessed only of great capacity to deal with constitutional government, it was my duty to find one possessing these requisites, and, moreover, possessing the power of dealing with native tribes and treating them with kindness. I confidently look forward to the career of Sir George Grey to justify my selection. I feel confident he will deal with the natives of the Cape of Good Hope as he has dealt with the natives of New Zealand; and if the result be as I anticipate, though I receive blame now, I shall be amply rewarded by the satisfaction of seeing the success of that man whom I have chosen in his conduct of Governor, and I feel certain my noble Friend on some future occasion will be the first to come forward with manliness and candour to express his regret that he should ever 268 have said one word to derogate from the high character of Sir George Grey.
After a few words from Lord LYTTELTON in reply,
§ On Question, agreed to.
§ House adjourned to Monday next.