NEW ZEALAND GOVERNMENT BILL. House of Commons, February 9,1848. [Concluded from our last.]

New Zealand Spectator and Cook's Strait Guardian, Volume IV, Issue 297, 3 June 1848, Page 3

NEW ZEALAND GOVERNMENT BILL. House of Commons, February 9, 1848. [Concluded from our last.]

Mr. Gladstone. — Whether the protest was addressed to the natives or to the Government? Mr. Labouchere. — No information hasbeen received by the Colonial-office on the subject

since be last addressed the house. But the bishop in sending this protest to tfie Government at home, did announce his intention to express his dissatisfaction to the natives of New Zealand as to the course adopted by the Government. He said he would do his utmost to acquaint them with their rights as British subjects, and he intimated his intention to assist them in maintaining those rights. Expressing the most sincere respect for the character and general conduct of the Bishop of New Zealand since his appointment to his present see, he (Mr. Labouchere) must adhere to the opinion that this was a most imprudent course on the part of the bishop, and the Secretary of the Colonies, on hearing that it was the intention of the bishop to agitate this question among the natives^ was bound expressly to state his opinions to the bishop. Mr. Gladstone. — He stated that the bishop addressed his protest to the natives. Mr. Labouchere. — An intention of that kind having been formally and officially communicated through the Governor of the colony to the Secretary of State for the Colonial Department, the Secretany of State would not have done his duty had he not told the bishop that such a course was very wrong. He (Mr. Labouchere) hoped that the right hon. gentleman would be satisfied that there was no intention on the part of the Colonial-office to do anything in regard to waste lands which was inconsistent with the rights guaranteed to i the natives under the treaty of Waitangi, with their true interests or with the most liberal and fair dealing. The house would do well to intrust Governor Grey, whose conduct showed how much confidence might be placed in his prudence and discretion, as well as firmness, with those ample discretionary powers which it was proposed to confer npon him. Placed as they were at a great distance from the community for which they had been called to legislate, it was better to confer such discretionary powers upon the Governor of the colony than to fix a precise period when the constitution should be brought into play. His ov\n persuasion was, that if the house, relying upon the prudence, circumspection, and vigilance of Governor Grey, gave him the necessary powers, there was the best prospect of seeing free institutions introduced into New Zealand, to be enjoyed both by the British settlers and the aboriginal inhabitants ; and they might cherish the hope that this valuable and important dependency of the British Crown would yet flourish as a united, happy, and free community. Sir E. Buxlon observed, that in presenting a petiiion on a former occasion he had been led to ask whether the manner in which the Bishop of New Zealand had acted was not amatI ter on which they were then unable to decide. He found, however, some incidental evidence that Governor Grey had not lost confidence in the bishop, the Governor having applied to tl c bishop in reference to the land grants for the missionaries of the Church of England, and propositions had been made which they had accepted. The views of the bishop as to the native claims were by no means singular. Letters had been received from the missionaries connected with the Wesleyan body, speaking in as strong language as could be used of the new charter ; but the expressions were so strong that the secretary of the Wesleyan body had requested him (Sir E. Buxton) not to lead the letters to the house. Other gentlemen of the highest consideration and of all classes concurred in putting a similar construction on the charter. The right hon. gentleman had expressed the wise determination of Her Majesty's Government that the treaty of Waitangi should be upheld fairly, and interpreted liberally. He trusted it would be carried out in the spirit in which it had been proposed by the Secretary of State on the one hand, and by th<? natives on the other. In a despatch dated August 14, 1839, from Lord Normanby, then Secretary for the Colonies, his lordship, addressing Governor Hobson, said, — " It will be your duty to obtain, by fair and equal contracts with the natives, the cession to the Crown of such waste lands as may be progressively required for the occupation of settlers resorting to New Zealand." " Waste lands !" — not cultivated, or occupied lands. Such were the views of Lord Normanby in 1840. In a despatch dated December 9, 1840, the opinion of Governor Hobson was stated, that — " the treaty must be regarded as the fundamental law of the country, and must be so interpreted as to harmonize with the other laws of New Zealand relating to like subjects." The fact, therefore, appeared that Lord Normanby expected that the Government should acquire no territory as claiming the sovereignty of New Zealand. Sir R. Peel, speaking in 1845, said, " There is no claim here to possession of territory in consequence of sovereignty." They had the sovereignty minus the land ; they gave up the land when they claimed the right of- sovereignty. He trusted, then, that in dealing with the natives the Government would deal with them according to the meaning which had always been attached to the treaty

of Waitangi. Lord Stanley, in proposing s land-tax of 2d. per acre, stated, that it was intended to apply to alllands ; but the Government was not likely to tax lands which belonged to itself, or to induce a forfeiture of that which was already theirs. Such was the construction put upon the treaty by the natives at the present time. From the papers just printed, it appeared that the greatest alarm had been created among the people, lest their lands should be taken from them, and, undeniably, their opinion was that there was a title on their part to the possession of all the lands in the northern island. It was notorious to those acquainted with the country that the New Zealanders do put a value on their land ; and, though they might use it only for " pigruns," they were ready to enter into war rather than give up what they considered their own. He trusted the Government would act fully on those excellent principles which the right hon. gentleman had enunciated, and according to the interpretation of the treaty now brought under their notice. He hoped, in spite of the influence of the New Zealand Company, that the Government would act on those principles. If they only did so, they would find that peace and security would be maintained in New Zealand. Mr. Aglionby was induced to rise partly by the allusion made by the hon. baronet in concluding his speech. He (Mr. Aglionby) belonged to the New Zealand Company, of which the hon. baronet expressed his fears. From the moment he had become connected with it he had seen nothing in its transactions except what had given him pleasure, and what he should have expected on the part of an association composed of men as distinguished for station, education, and good feeling as any in the country. He craved the hon. baronet's close scrutiny into all its proceedings. The hon. baronet would find that his fears had been excited by what had fallen from interested or turbulent persons, who had said many things of the company contrary to fact. All the information which could be supplied on the subject was at the disposal of the hon. baronet. The company wanted nothing? but publicity. The hon. baronet and he differed in their views of the treaty of Waitangi. The hon. baronet considered the whole lands, without distinction, in the island of New Zealand, to be the property of the natives, — their property against all the world, — for no other reason, it seemed, than that they happened to reside there or had eaten somebody who had lived in the same place. The expression " beneficial enjoyment" afforded a fair and liberal construction of the condition on which natives were to be confirmed in the possession of lands. There were, for example, portions of land connected with the sea and inland rivers which, as a people of fishers, the New Zealanders did beneficially enjoy ; and he did not believe that they would be deprived of the beneficial enjoyment which they had in any such instances. He had called attention to the construction of the treaty of Waitangi the very year in which it was signed. The treaty spoke of the lands which the natives " collectively and individually possess.'* What wasthe meaning of the word " possess," say in-, reference to the middle island, which, was as large as England, but which had not more than 1200 inhabitants? According to the hon. baronet, those 1200 natives possessed the whole island ; that opinion indeed, was advocated openly in the colony itself. But could the treaty be understood to confer upon ! those 1200 persons in virtue of the word " possess" the property of that island to the total exclusion of the discoverers ? Such an idea was not only contrary to the principles of political economy but to the principles of religion. What was the condition of those islands, which had led to their colonisation by this country ? The fact was, that from th& time of Captain Cook's discovery the nativeswere decreasing in numbers, owing to wars among themselves, which could not be contests for territory, because they did not want it, but which were carried on for the gratification of cruel and savage propensities. Tribes were destroyed and eaten by their conquerors. It was a matter of humanity to colonize that country for the advancement of civilisation and Christianity. The conquerors left the land unoccupied. s it to be said that, under such circumstances, the people of this country should be prevented from applying their enterprise and capital to those islands, due care being taken of the interests of the natives ? Much had been done to extend education and religion among them, and they were now becoming gradually absorbed in a. more civilised population. With reference to the construction of the treaty of Waitangi, it was important to look at the language used by Lord John Russell in November, 1840, — the treaty having been made in the beginning of that year. In an official document of that date (which the hon. member quoted) the noble lord used the expression, " grants of waste land to us belonging." The noble lord evidently did not understand the treaty as. recognising the whole land as the property of

the natives, because he lefeired to large poftions lying within the island as belonging to the Crown. He begged leave, also, to remind the house of a few remarks which he had > made in a former discussion respecting the distinction between the southern settlement and the northern settlement of New Zealand. Those remarks not having been reported at the time, he had been found fault with for not having alluded to the distinction, — which, however, he had done, — and he now begged leave to read Governor Grey's own words on that subject. Governor Grey in his despatch of October the 7th, 1846, says :—": — " lam not at present aware of any circumstance which need prevent the immediate introduction of representative institutions into that colony which would comprise the settlements in Cook's Strait and the Middle Island. All questions of a vexatious nature between the Government and the settlers in that part of the colony have now been finally set at rest ; and, with a considerable acquaintance with British settlements, I can have no hesitation in recording it as my opinion, that there never was a body of settlers to whom the power of local self-government could be more wisely and judiciously intrusted than the inhabitants of the settlement to which I am alluding." Mr. Cardwell said he would not attempt to accept the challenge of the hon. gentleman to enter into the long vexed question of the construction of the treaty of "Waitangi, having, ■ on a former occasion, had the honour to state his views on that subject at great length. He wished just to say, that no subsequent reflection tended to satisfy him that the iegal con- j struction which had been adopted by nearly i one-half of the committee of 1845 — although there had been a bare majority against them — was in any respect erroneous ; neither had the occurrences which had since taken place in the colony helped to convince him that the practical well-being of the colony bad been advanced by the construction wfiich had, unfortunately, been put upon the treaty by the majority of that committee. But, having said that, he did not. think it right in him again to occupy the time J of the house by a long legal argument, to which justice only rould be done when the house was piepared to come there for the express purpose of sitting upon the case judicially. At present it arose in a purely collateral shape. His right hon. friend (Mr. Gladstone) had only interrupted the Speaker leaving the chair for the purpose of obtaining satisfaction on two particular points ; the one being a purely personal question, in which it was of importance to see justice done to a most respectable individual ; the other being a great public question, affecting the destiny of the island of New Zealand. With respect to the first question, he (Mr. Cardwell) regretted that the answer of the right hon. gentleman the President of the Board of Trade was, to his mind, perfectly unsatisfactory. The question was, whether the right hon. gentleman did or did not charge the Bishop of New Zealand with having been guilty of agitating the island, and endeavouring to excite the minda of the" natives against the existing Government. The right hon. gentleman had read a passage from the bishop's letter, in.which he stated that he was " resolved to use all legal and constitutional measures befitting his station to inform the natives of New Zealand of their rights and privileges, as British subjects, and to assist them in asserting and maintaining them ;" but there he stopped short. He (Mr. Cardwell) begged to read the words which immediately followed, which were these, — " whether by petition to the Imperial Parliament, or other loyal and peaceable methods, but that in so doing I shall not forget the respect which I owe to your Excellency, nor do anything which can be considered likely to add to the difficulties of the colony." (Hear, hear). That was the whole question. The bishop — whether rightly or wrongly he would not then inquire, though he might argue the point some other day — felt it to be his duty, as the head of the whole missionary body, — for he believed that even those missionaries who were not under episcopal superintendence, and were not members of the Church of England, acted with great harmony in co-operating with him on this subject, — the bishop felt it to be his duty to represent the case to Government. If he had done so as an agitator among the natives, he {Mr. Cardwell) would *have been among the last to vindicate him. On this point the right hon. gentleman said that the Government had no information from the colony on the subject. He begged to say that they had very good negative information. The letter of the bishop was dated the Ist of July last, and we had the fullest information on the state of the colony on this paiticular subject down to the Ist of October last, three months afterwards, and not one word had been received from the Governor of the colony respecting the following up of the protest of the bishop. (Hear, hear). He considered this to be most conclusive testimony that the bishop had not been .guilty of the charge imputed to him. The other question which his right hon. friend

(Mr. Gladstone) had referred to was in what sense, and in what way, the Government meant to carry out the treaty of Waitangi 1 Were they going to observe that treaty in the sense put upon it at the time by those who made it, or were they going to break it, or explain it away, or gat rid of it by a side wind ? He might observe, in passing, that the right hon. gentleman had included the treaty of Waitangi as one of the acts of the executive Government of New Zealand, whereas that treaty was made prior to the existence of an executive Government there. In fact, the executive Government rested upon the provisions of the treaty itself. But he was happy to say that the answer of the right hon. gentleman, with respect to the construction of this treaty, was satisfactory in the main. He (Mr. Cardwell) had understood him as stating that, whatever might have been the instructions of Lord Grey in 1846, — whether they were consistent with the recognised interpretation of tbe treaty or not, — the Government entirely approved of the conduct of Captain Grey in reference to that treaty, and intended to act upon the principle he had laid down, and that an instruction to that effect would go out as a message of peace to the people of New Zealand. The anxiety, therefore, which according to the recent despatches seemed to be felt on this point in the island, might be taken to be set at rest. According to Captain Sotheby's report, there had been a great deal of excitement on the part of Kawiti, and many of the natives, owing to a report that the Government intended to take possession of all uncultivated land, but that Waka had eased Kawiti's mind by telling him there was no truth in such a report, which Captain Sotheby most fully corroborated. In the presence of Tomati Waka, through the interpreter, Capt. Sotheby gave Tupe (another chief) to understand, upon the authority of his Excellency the Governor, that such was not the intention or even the wish, if practicable, of the Government ; and that no land would be taken excepting with the will and consent of the chiefs, and then granting them a pension, but which kind of remuneration the natives did not seem to understand. Tupe said, if land was required, it must be paid for, but several times expressed his wish to live peaceably. Now, this was the point upon which the question ot peace or war with the natives would turn, and all he (Mr. Cardwell) wanted to know was, whether the Government were going to act in this spirit — and he understood emphatically that they were. (Hear, hear). If they were, then we should have peace in New Zealand, and then those improvements to which the right hon. gentleman (Mr. Labouchere) referred in the peroration of his speech might, he verily believed, be fairly anticipated. The bon. gentleman who had spoken last (Mr. Aglionby) had referred to the former conduct of the natives — reviving some of the old stories which they used to hear in former times about their titles to the land being derived from eating its former possessors. The papers lately received from New Zealand gave some evidence respecting the state of the natives. It appeared that they had been able to maintain themselves in making a gallant stand against the Queen's troops, and when they had unfortunately killed some of our troops, what did they do ? It was stated that the body of private Weller of the 58th regt. was found and carried away by the enemy, who read prayers over and buried him at Avamoho without degrading mutilation. (Hear, hear). With respect to the particular bill before the house, he was perfectly satisfied that it was necessary to do something in the matter ; and as the question was, whether the Speaker should then leave the chair, he did not think it right to occupy more of the time of the house, or offer any opposition to its going into committee. The Earl of Lincoln thought the right hon. gentleman (Mr. Labouchere) would see that the suggestion which .-he had made to the house two or three hours ago, in no unfriendly spirit, might have been wisely adopted. He (Lord Lincoln) had told him that it would be impossible to make any practical progress with the bill on that occasion, and that it would be absolutely necessary to have a discussion on it upon a future day. Now, they had had what he admitted to be an interesting discussion upon the affairs of New Zealand ; but, with the exception of some incidental observations, none whatever upon the bill. (Hear, hear). He had intended to address the house at some length in regard to the bill, but he certainly would not commence his address at 5 o'clock, knowing that the house must adjourn at 6 o'clock, according to the sessional order. He would suggest to the right hon. gentleman, whether it would not be expedient that the chairman should, proformd, take the chair, and then report progress ; and let the house take the discussion upon the bill at some future day. Mr. Labouchere was very far from accusing tbe noble lord of wishing to disturb the business of the house ; but he could not consent to postpone going into committee. He

was sorry to think that the noble lord meditated any opposition to the bill ; but he thought that any observations upon the question of the suspension of the abolition of the constitution could be made quite as well when discussing the clauses of the bill in committee. The Earl of Lincoln objected to raising the discussion upon which he wished the house to enter in committee. If it was the wish of the house to go into committee he would not oppose it ; but he thought it fair to give notice that, if they did so, he intended to raise the discussion to which he referred upon the bringing up of the report, and that he reserved to himself the right to move any amendments on the report which he should find to be necessary. Mr. F. Scott joined with the noble lord in expressing a wish that the Government would postpone going into committee upon this very important subject. If they were determined to persevere in colonising New Zealand, let them do it on the principles of equity and justice. What had been the consequences of their legislation already ? One act of Parlia- \ ment had been sent out, and no sooner had it arrived than the Governor was obliged to entreat the Colonial-office to pause before they enforced a measure which, he felt sure, would create difficulties and disturbance. Would it ' not be better, instead of attempting to go into committee now upon a subject of such great importance, to postpone the consideration of it until the house had had an opportunity of judging of the provisions of the bill, and of deciding whether the colony was in a fit state to receive such a measure* Mr. Adderley complained that the discussion of a matter of so much importance as the giving or suspending a constitution to New Zealand had been mixed up with subjects wholly foreign to it, such as the conduct of the bishop and the treaty of Waitangi ; and expressed the hope that the questiomwould be raised in a manner more fitting to its importance. Mr. Anstey observed, that it was too late for lion, members lepresenting the New Zealand Company to affect to doubt the existence of the native laws and usages in the colony, for they had themselves given to them an explicit recognition. The only title of the company to their lands was founded on the assumption that there was a law of real property among the natives, under which they had the power of transmitting the land. He had not made up his mind decidedly to vote against the bill, but he could not consent to proceed with the committee unless the government gave a distinct promise that this question of the occupation of property should b# determined with a due regard not only to the native laws and customs of New Zealand, but to the body of English law. The bon. member concluded by moving that the house do go into committee on this day week. No hon. member appearing as seconder, the motion fell to the ground. The Speaker then left the chair, and the house resolved itself into committee on the bill. On clause 1 being proposed, Mr. Gladstone intimated, as we understood, that if he had any amendment to propose relative to the duration of five years, he would give due notice of proposing it on the report. Mr. Hume objected to the term of five years, as too long. Mr. Labouchere thought that that term was not too long, considering the distance of the colony from the mother-country. All that the bill did was to fix five years as the maximum period during which the constitution might be suspended ; and the Governor, it should be remembered, had discretionary power to confer the constitution, orpartially confer it, before that period, should good grounds appear for so doing. Mr. Aglionby observed, that the original intention of the Government had been to grant to the southern portion of New Zealand a constitution immediately, and to the northern portion the same boon after the lapse of two years. The change in this view had been caused by the strong representations of Governor Grey ; but he (Mr. Aglionby) did not think that the recommendation of that officer would at all warrant the suspension of the constitution with regard to the south for so long a period as five years. There were no complaints whatever in respect to the conduct of the inhabitants of this part of the colony ; they were admitted to be peaceable and orderly, and it was not maintained that they were at all unfit for the exercise of the privileges which it had been proposed to entrust to them. (Hear, hear). He apprehended that, notwithstanding this bill, there would still be a discretionary power with the Governor to curtail the period of five years, so far as concerned the southern settlements, if he saw no danger in such a "course ; and it would further be in his power, if he (Mr. Aglionby) understood the measure aright, to make such alterations and modifications in the original charter as he might think necessary. There could be no question that Governor Grey would exercise such a power with great discretion, and he

begged to ask the right hon. gentleman if that power should not rest with the Governor ? Mr. Labouchere referred the hon r gentleman to the fourth clause, wherein it was stated, that the Governor of New Zealand would have the power, if he should think fit, to introduce a constitution to one while he withheld it from another portion of the colony. It had been thought advisable to intrust the Gevernor with this discretion, and it was a point on which it would be better to leave everything to his own judgment. It might be that the appearance of partiality would cause great excitement and be productive of very serious consequences to the peace of the colony ; but if, without danger, a constitution could be granted to the south within the period of five years, there would be no obstacle whatever placed in the way of the Governor making the concession. With regard to the other point adverted to by the hon. gentleman, the Governor would not have the power to altar the charter, but would be able, by an ordinance of the Legislative Council, to make those amendments which might be necessary to the good government of the colony. The Earl of Lincoln thought, as the right hon. gentleman had insisted on going into this piecemeal discussion, that he should at least not have given answers which were not borne out by the bill itself. He sincerely regretted, on every ground, that there was no representative of the Colonial-office in that house. The right hon. gentleman had taken his information from the Attorney-General ; but was he quite sure that the answer he had just given was accurate ? Was it a fact that under the fourth clause the Governor of New Zealand would have power to grant to the south provinces that constitution which it was the object of the first clause to suspend ? He (Lord Lincoln) apprehended there was no such power whatever ; under the fourth clause the Governor would be empowered to grant a legislative council ; but that was by no means the sort of constitution which they were about to suspend. The right hon. gentleman, therefore, was misrepresenting his own bill. If this bil! passed, the Queen in Council only would have power to renew the constitution. Mr. C. Buller considered that the reply of his right hon friend to the question put by the hon. member for Cockermouth was strictly correct. Undoubtedly the discretionary power of renewing the constitution was left to the Governor ; that was to say, that he would be able to do so by and through a legislative council nominated by the Crown. Under the fourth clause it would be in the power of the Governor, at any time, being so advised, or taking it on his own responsibility, or instruct ted by the Colonial Secretary, by and with the advice of the legislative council, to constitute, by ordinance, a provisional legislative council, "to be nominated, or elected." Supposing, therefore, at the end of two or three years, the Governor thought that the southern or the northern provinces were in a fit state to receive free representative institutions, under this clause, as he (Mr. Buller) took it, he would have power to propose an ordinance to his council, constituting provincial legislative councils to be nominated by him, or to be elected by the people or by the municipalities. The Earl of Lincoln — The right hon. gentleman (Mr. Buller) had answered the question of the right hon. member for Cockermouth (Mr. Aglionby) in a very lawyer-like way, by evading the main point altogether. He (Lord Lincoln) denied again that by the fourth clause the Governor would, as stated, have the power of renewing the constitution. The first clause suspended the constitution, as far as it related to separate legislative assemblies, for the period of five years ; and, by the second, third, and fourth clauses, they professed to provide a substitute, and a most sorry substitute it was. The Government bad insisted upon bringing on this discussion, and the house had a right to expect an accurate explanation of the bill. The explanation given by the right hon. gentleman was most inaccurate. The Attorney- General could not agree with the noble lord. His right hon. friend (Mr. Labouchere) had referred to him, but he had not spoken merely on the simple construction of the clause ; he had been aware of the intention in the wording, and he believed his right hon. friend had stated it accurately. The most unlimited confidence was placed in Governor Grey, and the Colonialoffice proposed to give to the Governor of the colony power, at his discretion, to increase the Legislative Council which, existed before the passing of the former act, and which was revived by this bill. The constitution could not be revived to the whole of New Zealand under five years, but it could be revived tothe southern provinces at any time at the- discretion of the Governor within that period. After some further conversation, the house resumed, and the Chairman reported progress, and^obtained leave to sit again.