New Zealand Constitutional Law Resources
Last Updated: 21 August 2017
Marquess Normanby to Captain Hobson.
Downing Street, 14th August, 1839.
Your appointment to the office of Her Majesty’s Consul at New Zealand having been signified to you by Viscount Palmerston, and His Lordship having conveyed to you the usual instructions for your guidance in that character, it remains for me to address you on the subject of the duties which you will be called to discharge in a separate capacity, and under my own official superintendence.
The acquaintance which your service in Her Majesty’s navy has enabled you to obtain with regard to the state of society in New Zealand relieves me from the necessity of entering on any explanation on that subject. It is sufficient that I should generally notice the fact that a very considerable body of Her Majesty’s subjects have already established their residence and effected settlements there, and that many persons in this Kingdom have formed themselves into a society, having for its object the acquisition of land and the removal of emigrants to those islands.
Her Majesty’s Government have watched these proceedings with attention and solicitude. We have not been insensible to the importance of New Zealand to the interests of Great Britain in Australia, nor unaware of the great natural resources by which that country is distinguished, or that its geographical position must, in seasons either of peace or war, enable it in the hands of civilised men to exercise a paramount influence in that quarter of the globe. There is probably no part of the earth in which colonization could be effected with a greater or surer prospect of national advantage.
On the other hand, the Ministers of the Crown have been restrained by still higher motives from engaging in such an enterprise. They have deferred to the advice of the Committee appointed by the House of Commons in the year 1836 to enquire into the state of the aborigines residing in the vicinity of our colonial settlements, and have concurred with that Committee in thinking that the increase of national wealth and power promised by the acquisition of New Zealand would be a most inadequate compensation for the injury which must be inflicted on this Kingdom itself by embarking in a measure essentially unjust, and but too certainly fraught with calamity to a numerous and inoffensive people, whose title to the soil and to the sovereignty of New Zealand is indisputable, and has been solemnly recognised by the British Government. We retain these opinions in unimpaired force, and though circumstances entirely beyond our control have at length compelled us to alter our course, I do not scruple to avow that we depart from it with extreme reluctance.
The necessity for the interposition of the Government has, however, become too evident to admit of any further inaction. The reports which have reached this office within the last few months establish the facts that about the commencement of the year 1838 a body of not less than two thousand British subjects had become permanent inhabitants of New Zealand; that amongst them were many persons of bad or doubtful character—convicts who had fled from our penal settlements or seamen who had deserted their ships—and that these people, unrestrained by any law, and amenable to no tribunals, were alternately the authors and victims of every species of crime and outrage. It further appears that extensive cessions of land have been obtained from the natives, and that several hundred persons have recently sailed from this country to occupy and cultivate those lands The spirit of adventure having been effectually roused, it can be no longer doubted that an extensive settlement of British subjects will be rapidly established in New Zealand, and that unless protected and restrained by necessary laws and institutions, they will repeat unchecked in that quarter of the globe the same process of war and spoliation under which uncivilised tribes have almost invariably disappeared, as often as they have been brought into the immediate vicinity of emigrants from the nations of Christendom. To mitigate, and, if possible, to avert these disasters, and to rescue the emigrants themselves from the evils of a lawless state of society, it has been resolved to adopt the most effective measures for establishing amongst them a settled form of civil government. To accomplish this design is the principal object of your mission.
I have already stated that we acknowledge New Zealand as a sovereign and independent State, so far at least as it is possible to make that acknowledgment in favour of a people composed of numerous dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act or even to deliberate in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty’s immediate predecessor, disclaims for herself and her subjects every pretension to seize on the Islands of New Zealand, or to govern them as a part of the dominions of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, shall be first obtained. Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious, and little more than nominal, and persuaded that the benefits of British protection and of laws administered by British Judges would far more than compensate for the sacrifice by the natives of a national independence which they are no longer able to maintain, Her Majesty’s Government have resolved to authorise you to treat with the aborigines of New Zealand for the recognition of Her Majesty’s sovereign authority over the whole or any part of those islands which they may be willing to place under Her Majesty’s dominion. I am not unaware of the difficulties by which such a treaty may be encountered. The motives by which it is recommended are of course open to suspicion. The natives may probably regard with distrust a proposal which may carry on the face of it the appearance of humiliation on their side and of a formidable encroachment on ours; and their ignorance even of the technical terms in which that proposal must be conveyed may enhance their aversion to an arrangement of which they may be (?) comprehend the exact meaning or the probable results. These, however, are impediments to be gradually overcome by the exercise on your part of mildness, justice, and perfect sincerity in your intercourse with them. You will, I trust, find powerful auxiliaries amongst the missionaries, who have won and deserved their confidence; and amongst the older British residents, who have studied their character and acquired their language. It is almost superfluous to say that, in selecting you for the discharge of this duty. I have been guided by a firm reliance on your uprightness and plain dealing. You will, therefore, frankly and unreservedly explain to the natives, or their chiefs, the reasons which should urge them to acquiesce in the proposals you will make to them. Especially, you will point out to them the dangers to which they may be exposed by the residence amongst them of settlers amenable to no laws or tribunals of their own, and the impossibility of Her Majesty extending to them any effectual protection, unless the Queen be acknowledged as the Sovereign of their country, or at least of those districts within or adjacent to which Her Majesty’s subjects may acquire lands or habitations. If it should be necessary to propitiate their consent by presents, or other pecuniary arrangements, you will be authorised to advance at once to a certain extent in meeting such demands, and beyond those limits you will refer them for the decision of Her Majesty’s Government.
It is not, however, to the mere recognition of the sovereign authority of the Queen that your endeavours are to be confined, or your negotiations directed. It is further necessary that the chiefs should be induced, if possible, to contract with you, as representing Her Majesty, that henceforward no lands shall be ceded, either gratuitously or otherwise, except to the Crown of Great Britain. Contemplating the future growth and extension of a British colony in New Zealand, it is an object of the first importance that the alienation of the unsettled lands within its limits should be conducted from its commencement upon that system of sale of which experience has proved the wisdom, and the disregard of which has been so fatal to the prosperity of other British settlements. With a view to those interests it is obviously the same thing whether large tracts of land be acquired by the mere gift of the Government or by purchases effected, on nominal considerations from the aborigines. On either supposition the land revenue must be wasted, the introduction of emigrants delayed or prevented, and the country parcelled out amongst large land holders, whose possession must long remain an unprofitable or rather a pernicious waste. Indeed, in the comparison of the two methods of acquiring land gratuitously, that of grants from the Crown, mischievous as it is, would be the less inconvenient, as such grants must be made with at least some kind of system, with some degree of responsibility, subject to some conditions, and recorded for general information. But in the case of purchases from the natives, even these securities against abuse must be omitted, and none could be substituted for them. You will, therefore, immediately on your arrival announce, by a Proclamation, addressed to all the Queen’s subjects in New Zealand, that Her Majesty will not acknowledge as valid any title to land which either has been or shall hereafter be acquired in that country which is not either derived from or confirmed by a grant to be made in Her Majesty’s name and on her behalf. You will, however, at the same time take care to dispel any apprehensions which may be created in the minds of the settlers that it is intended to dispossess the owners of any property which has been acquired on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community.
Extensive acquisitions of such lands have undoubtedly been already obtained; and it is probable before your arrival a great addition will have been made to them. The embarrassments occasioned by such claims will demand your earliest and most careful attention.
I shall in the sequel explain the relation in which the proposed colony will stand to the Government of New South Wales, From that relation I propose to derive the resource necessary for encountering the difficulty I have mentioned. The Governor of that colony will, with the advice of the Legislative Council, be instructed to appoint a Legislative Commission to investigate and ascertain what are the lands in New Zealand held by British subjects under grants from the natives; how far such grants were lawfully acquired and ought to be respected; and what may have been the price or other valuable consideration given for them. The Commissioners will make their report to the Governor, and it will then be decided by him how far the claimants, or any of them, may be entitled to confirmatory grants from the Crown, and on what conditions such confirmations ought to be made.
The propriety of immediately subjecting to a small annual tax all uncleared lands within the British settlements in New Zealand will also engage the immediate attention of the Governor and Council of New South Wales. The forfeiture of all lands in respect of which the tax shall remain for a certain period in arrear would probably before long restore to the demesne of the Crown so much of the waste land as may be held unprofitably to themselves and the public by the actual claimants.
Having by these measures obviated the dangers of the acquisition of large tracts of country by mere land jobbers, 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. All such contracts should be made by yourself, through the intervention of an officer expressly appointed to watch over the interests of the aborigines as their Protector. The resales of the first purchases that may be made will provide the funds necessary for future acquisitions, and beyond the original investment of a comparatively small sum of money, no other resource would be necessary for this purpose. I thus assume that the price to be paid to the natives by the local Government will bear an exceedingly small proportion to the price for which the same lands will be resold by the Government to the settlers; nor is there any real injustice in this inequality. To the natives, or their chiefs, much of the land of the country is of no actual use, and in their hands it possesses scarcely any exchangeable value. Much of it must long remain useless, oven in the hands of the British Government also, but its value in exchange will be first created, and then progressively increased by the introduction of capital and of settlers from this country. In the benefits of that increase the natives themselves will gradually participate.
All dealings with the aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith as must govern your transactions with them for the recognition of Her Majesty’s sovereignty in the islands. Nor is this all: they must not be permitted to enter into any contracts in which they might be ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory the retention of which by them would be essential or highly conducive to their own comfort, safety, or subsistence. The acquisition of land by the Crown for the future settlement of British subjects must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves. To secure the observance of this rule will be one of the first duties of their Official Protector.
There are yet other duties owing to the aborigines of New Zealand, which may be all comprised in the comprehensive expression of promoting their civilisation, understanding by that term whatever relates to the religious, intellectual, and social advancement of mankind. For their religious instruction, liberal provision has already been made by the zeal of the missionaries and of the missionary societies in this Kingdom, and it will be at once the most important and the most grateful of your duties to this ignorant race of men to afford the utmost encouragement, protection, and support to their Christian teachers. I acknowledge also the obligation of rendering to the missions such pecuniary aid as the local Government may be able to afford, and as their increased labours may reasonably entitle them to expect. The establishment of schools for the education of the aborigines in the elements of literature will be another object of your solicitude; and until they can be brought within the pale of civilised life, and trained to the adoption of its habits, they must be carefully defended in the observance of their own customs, so far as these are compatible with the universal maxims of humanity and morals. But the savage practices of human sacrifice and cannibalism must be promptly and decisively interdicted; such atrocities, under whatever plea of religion they may take place, are not to be tolerated in any part of the dominions of the British Crown.
It remains to consider in what manner provision is to be made for carrying these instructions into effect, as for the establishment and exercise of your authority over Her Majesty’s subjects who may settle in New Zealand, or who are already resident there. Numerous projects for the establishment of a Constitution for the proposed colony have at different times been suggested to myself and my immediate predecessor in office, and during the last session of Parliament a Bill for the same purpose was introduced into the House of Commons, at the instance of some persons immediately connected with the emigrations then contemplated. The same subject was carefully examined by a Committee of the House of Lords. But the common result of all inquiries, both in this office and in either House of Parliament, was to show the impracticability of the schemes proposed for adoption, and the extreme difficulty of establishing at New Zealand any institutions, legislative, judicial, or fiscal, without some more effective control than could be found amongst the settlers themselves in the infancy of their settlement. It has, therefore, been resolved to place whatever territories may be acquired in sovereignty by the Queen in New Zealand in the relation of a dependency to the Government of New South Wales. I am, of course, fully aware of the objections which may be reasonably urged against this measure, but after the most ample investigation I am convinced that for the present there is no other practicable course which would not be opposed by difficulties still more considerable, although I trust that the time is not distant when it may be proper to establish in New Zealand itself a local legislative authority.
In New South Wales there is a Colonial Government possessing comparatively long experience, sustained by a large revenue, and constituted in such a manner as is best adapted to enable the legislative and executive authorities to act with promptitude and decision. It presents the opportunity of bringing the internal economy of the proposed new colony under the constant revision of a power sufficiently near to obtain early and accurate intelligence, and sufficiently remote to be removed from the influence of the passions and prejudices by which the first colonists must in the commencement of their enterprise be agitated. It is impossible to confide to an indiscriminate body of persons, who have voluntarily settled themselves in the immediate vicinity of the numerous population of New Zealand, those large and irresponsible powers which belong to the representative system of colonial government. Nor is that system adapted to a colony struggling with the first difficulties of their new situation. Whatever may be the ultimate form of government to which the British settlers in New Zealand are to be subject, it is essential to their own welfare, not less than that of the aborigines, that they should at first be placed under a rule which is at once effective, and to a considerable degree external.
The proposed connexion with New South Wales will not, however, involve the extension to New Zealand of the character of a penal settlement. Every motive concurs in forbidding this, and it is to be understood as a fundamental principle of the new colony that no convict is ever to be sent thither to undergo his punishment.
The accompanying copy of my correspondence with the Law Officers of the Crown will explain to you the grounds of law on which it is concluded that by the annexation of New Zealand to New South Wales the powers vested by Parliament in the Governor and Legislative Council of the older settlement might be exercised over the inhabitants of the new colony. The accompanying Commission under the great seal will give effect to this arrangement, and the warrant which I enclose, under Her Majesty’s sign manual, will constitute you Lieutenant-Governor of that part of the New South Wales Colony which has thus been extended over the New Zealand Islands. These instruments you will deliver to Sir George Gipps, who, on your proceeding to New Zealand, will place them in your hands to be published there. You will then return it to him, to be deposited among the archives of the New South Wales Government.
In the event of your death or absence, the officer administering the Government of New South Wales will provisionally, and until Her Majesty’s pleasure can be known, appoint a Lieutenant-Governor in your place, by an instrument under the public seal of his Government.
It is not for the present proposed to appoint any subordinate officers for your assistance. That such appointments will be indispensable is not indeed to be doubted. But I am unwilling at first to advance beyond the strict limits of the necessity which alone induces the Ministers of the Crown to interfere at all on this subject. You will confer with Sir George Gipps as to the number and nature of the official appointments which would be made at the commencement of the undertaking, and as to the proper rate of their emoluments. These must be fixed with the most anxious regard to frugality in the expenditure of the public resources. The selection of the individuals by whom such offices are to be borne must be made by yourself from the colonists either of New South Wales or New Zealand, but upon the full and distinct understanding that their tenure of office, and even the existence of the offices which they are to hold, must be provisional and dependent upon the future pleasure of the Crown.
Amongst the offices thus to be created the most evidently indispensable are those of a Judge, a Public Prosecutor, a Protector of Aborigines, a Colonial Secretary, a Surveyor-General of Lands, and a Superintendent of Police; of these, the Judge alone will require the enactment of a law to create and define his functions. The Act now pending in Parliament for the revival, with amendments, of the New South Wales Act will, if passed into a law, enable the Governor and Legislative Council to make all necessary provision for the establishment in New Zealand of a Court of justice and a judicial system separate from and independent of the existing Supreme Court. The other functionaries I have mentioned can be appointed by the Governor in the unaided exercise of the delegated prerogative of the Crown.
Whatever laws may be required for the government of the new colony will be enacted by the Governor and Legislative Council. It will be his duty to bring under their notice such recommendations as you may see cause to convey to him on subjects of this nature.
The absolute necessity of the revenue being raised to defray the expenses of the government of the proposed settlement in New Zealand has not of course escaped my careful attention. Having consulted the Lords of the Treasury on this subject, I have arranged with their Lordships that until the sources of such a revenue shall have been set in action, you should be authorised to draw on the Government of New South Wales for your unavoidable expenditure. Separate accounts, however, will be kept of the public revenue of New Zealand and of the application of it; and whatever debt may be contracted to New South Wales must be replaced by the earliest possible opportunity. Duties of import on tobacco, spirits, wine, and sugar will probably supersede the necessity of any other taxation; and such duties, except on spirits, will probably be of a very moderate amount.
The system at present established in New South Wales regarding land will be applied to all the waste lands which may be kept by the Crown in New Zealand. Separate accounts must be kept of the land revenue, subject to the necessary reductions for the expense of surveys and management, and for the improvement by roads and otherwise of the unsold territory, and subject to any deductions which may be required to meet the indispensable exigencies of the local government. The surplus of this revenue will be applicable, as in New South Wales, to the charge of removing emigrants from this Kingdom to the new colony.
The system established in New South Wales to provide for the religious instruction of the inhabitants has so fully justified the policy by which it was dictated that I could suggest no better means of providing for this all-important object in New Zealand. It is, however, gratifying to know that the spiritual wants of the settlers will, in the commencement of the undertaking, be readily and amply provided for by the missionaries of the Established Church of England and of other Christian communions, who have been so long settled in those islands. It will not be difficult to secure for the European inhabitants some portion of that time and attention which the missionaries have hitherto devoted exclusively to the aborigines.
I enclose, for your information and guidance, copies of a correspondence between this Department and the Treasury, referring you to Sir George Gipps for such additional instruction as may enable you to give full effect to the views of Her Majesty’s Government on the subject of finance. You will observe that the general principle is that of maintaining in the proposed colony a system of revenue, expenditure, and account entirely separate from that of New South Wales, though corresponding with it as far as that correspondence can be maintained.
The accompanying volume of Rules and Regulations for the Colonial Service will place you in possession of many details for the guidance of your official conduct. You will, however, understand that so much of that volume as relates to correspondence with this Department will not be strictly applicable to your situation. Your correspondence with myself will, as far as may be practicable, be carried on through the Governor of New South Wales. You will, in fact, be one of the officers of that Government; and you will apply to the head of it for instructions in all those cases in which he would himself address a similar reference to Her Majesty’s Government in this country. This rule, however, is not to be so strictly construed as to prevent your transmitting to me direct reports of every occurrence of which Her Majesty’s Government should be informed as often as opportunities may occur of communicating with this country more rapidly than such communications could be made through Sydney, and whenever the occasion shall appear to you of sufficient importance to justify this deviation from the general rule. It will, however, be your duty to transmit to the Governor copies of all despatches which you may thus address directly to this office. He will also convey to me transcripts of all his correspondence with you by the first opportunity which may present itself after any branch of that correspondence has reached its close.
I have thus attempted to touch on all the topics on which it seems to me necessary to address you on your departure from this country. Many questions have been unavoidably passed over in silence, and others have been adverted to in a brief and cursory manner, because I am fully impressed with the conviction that in such an undertaking as that in which you are about to engage much must be left to your own discretion, and many questions must occur which no foresight could anticipate or properly resolve beforehand. Reposing the utmost confidence in your judgment, experience, and zeal for Her Majesty’s service, and aware how powerful a coadjutor and how able a guide you will have in Sir George Gipps, I willingly leave for consultation between you many subjects on which I feel my own incompetency at this distance from the scene of action to form an opinion.
I have, &c.,
Captain Hobson, &c., &c.