Chapter XVII.
Land Regulations and Constitution of 1852.

The despatch which accompanied the Act suspending the Constitution gave to Sir George Grey the fullest powers, and threw upon him the gravest responsibilities. His discretion was left unfettered. "I am fully aware," writes Earl Grey, "and much regret that the course which I have taken, both in introducing this measure and in the instructions which I have given upon it, imposes upon you a great amount of responsibility. It may be necessary for you to refuse to exercise to such an extent as the settlers may desire the powers which you will be known to possess of extending to them the advantages of representative government."

The land laws in New Zealand and the disposition of the waste lands of the Crown exercised the mind of the Governor greatly. The Australian law as to the purchase of waste lands had been continued in New Zealand when that colony severed its connection with New South Wales. The Otago and Canterbury settlements had charters regulating the disposal of large areas of Crown lands granted to them. All land held by the Crown beyond the limits of the Canterbury and Otago grants was subject to the ordinary Australian law.

To promote small settlements, Sir George Grey caused the Hundreds Ordinance to be passed, under which Crown lands could be proclaimed, and, being laid off in small and moderate allotments, made available for persons of limited means. The inhabitants of page 130the hundred formed a municipal body. Wardens were to be elected by them, whose duties and powers were sufficiently comprehensive to afford an efficient system of local self-government to the community.

The Hundreds Ordinance was only brought into force in localities and districts by proclamation, which proclamation also extended to certain lands surrounding the hundred to such an extent in area as the Land Department deemed advisable. All other waste lands of the Crown were subject to depasturing licenses, which gave their holders a right to depasture sheep and cattle upon the Crown lands, but afforded no fixed tenure. Such licenses could be recalled on notice.

No fixed regulations had been made for the general management and sale of the waste lands of the Crown. One pound per acre was the nominal price of the fee simple of all such lands.

The Canterbury Association and the Free Church Settlement in Otago were established with a view to the endowment of the Church of England and the Free Church of Scotland respectively within the colony. The Free Church of Scotland had the right to appropriate ten shillings per acre of the price of Crown lands sold within a certain district of Otago; while in Canterbury the English Church was endowed by Act of the Imperial Parliament with power to levy one pound per acre on 2,500,000 acres of land in that province.

The following is Sir George Grey's own statement on this subject:

"Early in the year 1851, I became alarmed at reports which reached me that it was contemplated by the members of the Canterbury Association to inflict a serious wrong upon the inhabitants of New Zealand in reference to the public lands of this colony. I feared from what I heard that a State Church with vast endowments was about to be established in this country without the local Government or the inhabitants of New Zealand having received any information upon the subject, and without their wishes having been in any way ascertained.

"If this was done, it might take a long period of time before the public could free itself from an encumbrance of this kind, and the system under which this wrong act was to be perpetrated was one page 131which was designedly contrived to throw difficulties in the way of the poor in their efforts to secure lands for themselves and their families.

"This system, moreover, secured to an absentee body and their agents in this country the means of disposing of the funds, obtained from the sale of public lands, almost at their pleasure, by removing from the control of the local Government and the people of this country (New Zealand) all power of interference regarding the salaries of the officers of the Land Department or of the agents of the Company. Indeed it was difficult to see how any form of free government could be established or exist in New Zealand while such powers over the most prolific source of revenue in the country could be exercised by a distant body of absentees, who would have had this vast fund at their disposal, subject only to what, in fact, were worthless limitations.

"Whilst I was thus alarmed by rumours which seemed to indicate that undoubtedly what has been above mentioned was likely to be accomplished, although no intimation on the subject had reached me from Great Britain, the Resident Agent of the Canterbury Association waited upon me and read to me the draft of letter which, in so far as he understood, contained a recommendation to the noblemen and gentlemen who formed the Canterbury Association that they should apply to the Home Government and! to Parliament for an extension of the block of 2,500,000 acres of land which was already, by Act of Parliament, made subject to the Regulations of the Canterbury Association, one of which was that no rural land should be sold for less than three pounds per acre. One-third of this purchase-money was, by arrangement, to be expended for Church and school purposes.

"Thus the arrangements existing with the Association in 1851 provided that a sum of £2,500,000 should be expended upon religious and educational purposes.

"Being asked to give my assent to the recommendations as contained in the letter, I declined so to do, and stated that I would, by all means in my power, oppose the carrying of such recommendations into effect. Accordingly, upon the meeting of the Legislative Council of New Zealand, in June, 1851 (of which Council I was by law constituted the President), I made a speech upon the 18th of that month, the intention of which was to make manifest my objections page 132to the designs of the Canterbury Association and of the New Zealand Company. I also hoped that so strong, and, as I believed, so just an exposition of my views on this subject, would have the effect of detaching from the Canterbury Association influential friends of my own who had joined it.

"My great difficulty was that I appeared to have no objection to what was being done, for I represented the British Government, and that Government was aiding the Canterbury Association, although I was left in ignorance of the steps that they were taking.

"It was fortunate I adopted the course I did. At the very time I made this speech an Act of Parliament was being passed with the full assent of the British Government, upon the provisions of which I had not been consulted. Indeed I was quite ignorant of them. This Act provided as follows:—

"'Sect. II. And if at any time during the continuance of the powers of the said Association, Her Majesty, her heirs or successors, shall authorize the Governor, for the time being, of the Colony of New Zealand, to grant under the Public Seal of the said colony any other waste lands in the said colony, or shall otherwise declare such declaration to be signified by writing under the hand of one of Her Majesty's principal Secretaries of State, that any other lands therein situate shall be added to the lands comprised in the said settlement, all such lands shall thereupon become part and parcel of the said settlement; and the said Association shall thenceforth have over all such lands the same disposing, and all other powers and authorities, as they shall have over the lands then comprised in the said settlement, and all such lands shall be thereupon dealt with and disposed of by the said Association in the same manner and under the same restrictions, and considered in all respects as if the same had originally formed part of the settlement, and had been included in the provisions of the said recited Act and of this Act.'

"My speech was received by my friends in England and by some of them at once acted upon,"

Towards the end of 1852 Sir George Grey received the Constitution Act as it had passed the English Parliament. At this time the Canterbury Association was selling land at £3 per acre. The theory propounded by Mr Wakefield of the "sufficient price" still prevailed. Land was made dear that labour might be made cheap. page 133It became evident to Sir George Grey that an oppressive system of exclusion from the public lands was brought into operation in Canterbury, and might possibly be extended through the whole colony at the will of any Secretary of State in England who could be influenced by the selfish arguments of interested parties.

Accompanying the Constitution and Charter of 1852, Sir George Grey received a delegation of Her Majesty's powers to form regulations for the sale and disposal of the waste lands of the Crown in New Zealand. Instructions, imperative and distinct, were forwarded to him to frame such regulations without delay. The affairs of the New Zealand Company were finally wound up, and it became necessary that the Crown itself should take the management and disposal of its own lands.

And now the Governor found himself in possession of the power which he coveted to throw open the waste lands of the Crown to all the people, to destroy that monopoly which prevented men without capital from becoming freeholders, and to break down the oppressive system of Church establishments and Church endowments in New Zealand.

He did not fail to see that the effects of such blows would be felt far beyond the limits of these islands, but he rejoiced at the probability of a wide-spread reform, which might possibly reach to the most distant parts of the Empire.

With great care the Governor proceeded to frame the regulations. He reduced the* price of public land at one stroke from three pounds to ten shillings, and in the case of inferior lands, five shillings per acre. All lands were divided into three classes—first, the hundreds; second, the rural proclaimed lands surrounding the hundreds; third, Crown lands unproclaimed. Rights of pasturage were conferred both within and without the hundreds on the inhabitants; and the rural lands surrounding the hundreds were to be divided into allotments of not less than eighty acres nor more than six hundred and forty acres in extent. These lands were to be sold by auction under fixed regulations. But where squatters who had held depasturing licenses were dispossessed, in order that their lands might be thrown open for settlement, such persons had the right to purchase an allotment at ten shillings or five shillings per acre according to value.

The unproclaimed Crown lands could be applied for under certain conditions, but when so applied for they were to come under the general provisions of the proclaimed rural lands. Wherever land was fit for agricultural settlement, the. Hundreds Ordinance could be proclaimed, and such land be settled in accordance with its, provisions.

These regulations were gazetted on the 14th of May, 1853. They raised a storm of disapprobation from that class which desired land speculation and not land settlement. During the eight months in which they were in force prior to Sir George Grey's departure from New Zealand, the small-farm settlements of Greytown, Masterton, and Cartertown, were successfully established; and in the Province of Auckland lands were dealt with in the interests of the great body of the people.

Not only did the regulations themselves, properly interpreted, ensure the bonâ fide settlement of the lands, but Sir George intended, as a part of his plan, to impose a land-tax, to prevent the acquisition of large areas of unoccupied land. But he had no power to frame such an Act, and could but leave it with his recommendation to public men in New Zealand.

As soon as Sir George Grey's back was turned his intentions were frustrated and his wishes neglected, The Hundreds Ordinance was never brought into existence by proclamation; the Regulations were altered; the General Assembly gave over the control of the waste lands to the provincial bodies; and the provincial bodies framed such ordinances and regulations as enabled those in power to possess themselves of large portions of the public estate in different places. Dr. Featherstone did indeed propose a land tax to the Wellington Provincial Council, but it was not pushed.

It has been said that Sir George Grey's Regulations are responsible for the acquisition of the large estates which now exist in New Zealand. Satan can quote Scripture to prove his own case to be correct. Only in this distorted and untruthful sense is it possible to charge Sir George Grey's Regulations with the giving of large estates to speculators and monopolists.

The following is the account given by Sir George Grey himself of the motives which actuated him:—

"Parliament, acting on reports of Committees got up by the New page 135Zealand Company, had identified itself fully with the system of selling land at such a price as to place it beyond the reach of the poor—£3 per acre—and had established churches with enormous endowments, making the poor contribute as much as £1 per acre to the endowment of a Church which might be hateful to them. They then authorised the Secretary of State to make a land law. He lawfully delegated his powers to me, and required me to issue a land law. I never sought these powers; but, being ordered to execute them, determined to do it in a way beneficial to my fellowmen. I, therefore, issued Regulations, and made a law, which gave to all a privilege from which they had been shut out, that is, of acquiring homes for themselves and their families such as had never been offered to them before.

"I raised a host of enemies who persecuted me through life; but I knew the true mind of the British Parliament. Both Houses of Parliament adopted my action, and tyrannical land laws were put an end to. It should be borne in mind that the New Zealand General Assembly which was to meet was not the Assembly I had intended. A nominated Upper House destroyed the glorious fabric which I had been privileged to frame.

"Having received my orders, and being endowed with powers which perhaps no single man had before exercised, I used them for the benefit of the poor of every European nation. And having thus done my duty, Australia was benefited as much as New Zealand.

"An opportunity had been given me of largely benefiting mankind. I accepted it. An end was put to closing the lands against the poor, and established churches, with numerous endowments, were got rid of. Because of the cruel system of land laws which prevailed being broken down in one part of the Empire, all other places would necessarily follow, and indeed they did.

"The British Parliament endorsed what I had done, thus showing that they did not wish to perpetuate injustice. My work being accomplished I went forth to meet the enemies I knew I had to encounter."

During the five years for which period the English Government had suspended the operation of the Constitution Act, Sir George Grey proceeded to initiate reforms, all of which had for their object page 136and their tendency the increase of the popular voice in the government of the country, and the steady extension of popular rule. During that period he was in constant though confidential communication with Earl Grey upon the terms of the new Constitution which he proposed to grant to this colony. Although desiring to give complete power into the hand of the people, Sir George Grey was at this time peculiarly fettered by the existence of contemporaneous facts.

In the early days of English colonisation, when as yet there was no separate Secretary of State for the Colonies, various questions regarding colonial matters of importance both to Crown and people had from time to time arisen. To advise upon all such matters a body had been created within the Privy Council called "The Committee of Council for Trade and Foreign Plantations." To this Committee were relegated all important matters relating to the colonies. When, however, the colonial questions had become so grave as to necessitate the existence of a Minister responsible for their management, the functions of the Committee fell into disuse. The failure of the New Zealand Constitution in 1846, and the clamour arising in all the great dependencies of the Empire for constitutional and representative government, directed the attention of British statesmen to the existence and possible utility of the almost forgotten "Committee for Trade and Foreign Plantations." Canada, South Africa, Australia, and New Zealand, but especially Australia, were upon the eve of great constitutional changes. While in the great North American Dominion confederation of separate colonies then in existence seemed imminent, in the vast territory of Australia the breaking up of the great colony of New South Wales was almost an accomplished fact.

The six years from 1846 to 1852 formed the period of transition in which the power of government was practically transferred from Downing Street to the capital cities of the great colonies.

In 1848 Earl Grey revived the "Committee for Trade and Foreign Plantations," and submitted to that Committee the consideration of the best mode of making constitutional changes in Australia. In re-constructing the Committee, to the members of the Board of Trade—who formed, in fact, the old committee—were added Lord Campbell, Chancellor of the Duchy of Lancaster, Sir page 137James Stephen, formerly Permanent Under-Secretary for the Colonies, and Sir Edward Ryan. On the first of May, 1849, their report on the Australian Constitution was presented; they then proceeded further to consider the proposed Constitution for South Africa, and reported upon that on the 30th January, 1850. These reports form exhaustive and luminous dissertations upon the questions submitted, worthy of the great names appended to them, and sufficient to supply the historical foundations on which should be built up the political constitutions of free nations. It is worthy of remark that the New Zealand Constitution was not submitted to this Committee, nor was the question of Canada considered by it. The form of Government for New Zealand, as left perfect and complete by Earl Grey on his retirement from office in 1852, was the work of Sir George Grey, and to his correspondence and his suggestions some of the best features of the Canadian Constitution owe their existence.

While, therefore, the Committee of the Privy Council was deliberating upon the form of representative constitutions to be granted to the Australian colonies, Sir George Grey felt himself bound by every sentiment of honour to Her Majesty's Government not to propose publicly any measure of government for New Zealand which might seem to extend the limit of popular power in these islands beyond that which the English Parliament was granting to the Australian colonies, lest dissatisfaction might there have been created at the superior advantages enjoyed by the colonists of New Zealand. In a despatch from the Governor to Earl Grey, dated August 30th, 1851, he clearly points out the position which he considered himself to hold, and the reasons which actuated him.^*

"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."^*

Sir John Pakington, who succeeded Earl Grey, found the heads of the Bill already prepared. The new Secretary for the Colonies immediately invited Mr. (now Sir William) Fox, then in England, to wait upon him at the Colonial Office, and to confer and advise with him upon the proposed Constitution. Mr. Fox gladly consented. And it must be presumed that it was upon Mr. Fox's advice that the perfect character of the Bill as left by Lord Grey was destroyed and its whole nature altered for the worse.

New Zealand was saddled with a debt of £268,000, in favour of the New Zealand Company, a claim which the Crown Commissioner on the Company's Board, Mr. Cowell, states was, in the first place, established "by gross frauds, concealments, and misrepresentations, practised chiefly on Earl Grey and Sir Charles Wood, Chancellor of the Exchequer."^*

Other great advantages were proposed by Sir George Grey, such as the creation of hundreds and boroughs, which were, unfortunately, never properly adopted, by reason of the ignorance or misapprehension as to their advantages which existed in the minds both of English and colonial legislatures, and through the selfishness of those who desired to use political power for their own advantage.

Doubts having been on many occasions suggested as to the authorship of the New Zealand Constitution proposed by Earl Grey, it may be well to summarise the whole of the evidence upon the subject which is to be found in the despatches, blue books, and public speeches of the parties concerned. The only claimant to the responsibility of having framed that Act is Sir George Grey. Not one of the many antagonists who opposed him in New Zealand and in London, nor all combined, assert that they framed this measure, that they developed its principles, or that they submitted it for the consideration of the Imperial Government.

It is difficult to understand how any doubt can be entertained on this question after the perusal of Sir George Grey's despatch to Earl Grey of August 30th, 1851.^* Sir George Grey has never ceased to claim the original Constitution as his own work, his expression of ideas and of hopes for the self-government of a free people.

Earl Grey, having finally determined upon the form which the Bill should take, wrote in answer to the despatch of Sir George Grey just quoted:

"It has been of great service in preparing the enclosed heads of a Bill which it is the intention of Her Majesty's Government to introduce into Parliament in the present session for the purpose of establishing the legislative institutions of New Zealand on a permanent footing."^*

Before Earl Grey's Government could pass this Bill they were ousted from office. Sir John Pakington became Secretary for the Colonies in the new Ministry. As we have seen, the elective Council became a nominee body, and a debt of £268,000 in favour of the New Zealand Company was saddled upon the colony of New Zealand. How far Sir William Fox may be responsible for either or both of these it is impossible to say, but it is certain that the colonists of New Zealand had no opportunity of being heard on either of these points, and that great indignation was felt in the colony at the large debt with which it was burdened for the benefit of the New Zealand Company.

On the 1st of July, 1852, the Constitution Act as passed was transmitted by Sir John Pakington to Sir George Grey, with a despatch containing the following paragraph:

"Her Majesty's Government have had abundant opportunities of recognising in the correspondence which has taken place on this subject between yourself and their predecessors your strong attachment to liberal institutions, and the able manner in which you and your Council have both prepared the way for their introduction, and urged upon the Imperial Government the necessity of speedily creating them as soon as the temporary difficulties which induced you at first to advise the suspension had passed away. They are, in fact, fully aware that the measure itself, now reduced into a law, owes its shape in a great degree to your valuable suggestions."^†

Thus Sir John Pakington, Secretary for the Colonies, adds his testimony to that of Earl Grey, the late Secretary, as to the authorship of the Constitution Act.

While Sir George Grey was in confidential correspondence with Earl Grey upon the proposed Constitution, his lordship, who was deeply interested, wrote to the Governor, asking whether he had considered the method in force in the United States as to the election of the Second Federal Chamber, and, if he thought that plan advisable, whether it would not be wise for him to propose it formally to Her Majesty's Government as a proper provision for New Zealand. So great was the encouragement given by Earl Grey to the Governor upon this subject, and so evident his desire to afford all assistance towards framing the most liberal form of government, that it is difficult to limit the extent of participation in the final result which can fairly be credited to his lordship.

Sir F. Peel, Under-Secretary of State, speaking in reply to Mr. Adderley, when that gentleman attacked Sir George Grey, said "he was astonished to hear Sir George Grey represented as having been accustomed to exercise undivided rule, and become wedded to autocratic power, and as having consequently endeavoured to prevent the colonists of New Zealand from getting the benefit of free institutions. Was the honourable gentleman not aware that the Bill which was passed through Parliament to give them free institutions was framed, except in one particular, by Governor Grey himself, and that it was to him that the colonists were indebted for the Constitution which Parliament had granted them?"^*

On Sir George Grey's arrival in England he received letters from Sir John Pakington and Lord Lyttelton, warning him of intended attacks in Parliament, while notice was given in the House of Commons by Mr. Adderley that he should bring before the House several points of complaint against the Governor of New Zealand. A part of Lord Lyttelton's letter is as follows:—

"I also feel it my duty to inform you that I have felt bound to give

^* English "Hansard," June—July, 1854, p. 710.

page 143notice of my intention to bring under the notice of the House of Lords, on the 13th inst, the same points (generally) which Mr. Adderley recently brought before the House of Commons."^*

In his reply, dated July 6th, 1854, Sir George Grey fully stated and answered the various charges brought against him. So triumphant was his vindication of himself, and so complete the answer given by the papers and despatches as known to the Colonial Office and Parliament, that Sir John Pakington withdrew his attack; Mr. Adderley's motion in the House of Commons failed to find a seconder; and Lord Lyttelton's in the House of Peers only drew from the Duke of Newcastle, among other refutations of the charges against Sir. George, the following statement:—

"It is somewhat hard to charge Sir George Grey with culpability in leaving the colonies at the time he did. What were the circumstances under which he asked for leave of absence? Seventeen years of colonial service 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 re-visited this country. 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 that she was in an infirm state of health, and that every month was precious. He, nevertheless, fulfilled the duties I had imposed upon 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 sixteen thousand miles to see, lay on her death-bed, and before he reached her residence she had departed this life; and is it not cruel he should be accused of coming home at an inopportune moment, when he remained and fulfilled all the duties imposed upon him, knowing he was running the risk of the sad event which occurred?"^†