THE PORIRUA CASE.

Press, Volume LX, Issue 11551, 6 April 1903, Page 3

THE PORIRUA CASE.

THE STORY OF THE TRUST. THI-i JUDGMENT OF THK PRIVY COUNCIL. (FRO— AN OCCASION.U. CONTRIBUTOR.) The case of Wall's and others against the Solicitor-General of New Zealand, wliich ha* recently been decided by the Judicial Committee of the Privy Council, Ls of far greater importance —legally, politically, and ecclesiastically—than the value of tbo property irn mediately concerned would 1-ead a casual reader to suppose. In order to understand tho question, it is neoe.sf.nr>' to go hack to tha. very beginning of the history of the- colony. As all our readers tire awj.ro, tho Treaty of Waitxingi, whereby tbo native chiefs ceded the sovereignty of the islands to her Majesty Queen Victoria, wa« executed in 1840, and soon afterwards a. proclamation was issued declaring New Zealand to bo a separate colony. By an important clause in the Treaty, the natives were oonfirm-ed in the full, exclusive, and "undisturbed possession of their lands and estates, and her Majesty obtained tho exclusive right of pre-emption over such lands as the proprietors might wish to alienate. This clause has been the subject of many judicial decisions. To put the matter shortly, it has been decided that the effect of tho clause was to establish a radical title in the Crown, which was the basis of the natives' title of occupancy or possession. In the Crown was vested the right of pre-emption; the native title could not be extinguished otherwise- than by the free consent of the native occupiers; but on the. other hand, onoe the Crown had assented to the alienation of native land, and had completed the transaction by issuing a Crown grant, the native title was extinguished, and the land became the absolute property of the person to Whom it was granted. The manner in which the native title was investigated has differed at different periods of the history of .the colony; in the early days, whilst New Zealand was still a Crown colony, each case was inquired into by the Governor personally; at a later date, special Courts were set up for tlie purpose.

In 1841,. Dr. Selwyn was appointed Bishop of New Zealand, tinder Jetterß patent from the Crown. These letters patent fixed the bounds of his jurisdiotion to the north of the 34th parallel of latitude north. This word "north" was copied from a previous proclamation, and was probably originally a milstake of tho copying clerk; but it had an important effect at a later date; The errorgetio Selwyn regarded it as bringing the natives of Melanesia within his flock. Tho cause of education was taken up vigorously by tbo Bishop. Ho at once started his college at Auckland for the education of Europeans and Maoris from all parts of Now Zealand; to whom, as soon as he could, he added -Melanesjan boys brought from their island homes. But not content with a single school, he had from tho first the idea of obtaining pieces of land in various other districts, and opening schools as settlement extended and opportunity offered. Amongst his students at St. John's College, Auckland, were some young chiefs from tho West Coast. They told their friends of tlie education they had received; and (no doubt under the influence of the Bishop) tho West Coast chiefs wrote to the Governor stating that they wished to give a piece of land near Porirua fully and finally to the Bishop, and to those Bishops who should follow and fill his place, for a college, to the end that religion and faith in Christ might grow, and that the college might be a shelter against the evils of the world.

The matter was investigated by Sir George Grey, who was at that time Governor of New Zealand. It exactly fitted in with his dream of making New Zealand a sort of head of a South Pacifio Confederacy. The Governor approved the cession of the land to tho Bishop, and the Crown grant was mado out according to the form used by Sir G. Grey hi several other grants of land for educational purposes. It ran as follows: — " Whereas a school is about to be established at Porirua, in the Province of New Munster, New Zealand, under the superintendence of the Right Reverend George Augustus Lord Bishop of New Zealand, for the education of childiren of our subjects of all races, and of children of other poor and destitute persons being inhabitants of islands in the Pacific ocean. And, whereas it would promote the objects of the said institution to set apart a certain piece or parcel of land in the neighbourhood thereof for the use and towards the maintenance and support of the same, which piece or parcel of land has, by a deed from the natives, been ceded for the support of the said school, now know ye that we, for us, our heirs and successors, do hereby grant unto the said George Augustus Bishop of New Zealand" [here follows a description of the land] " together with the renta, issues and proceeds thereof, to hold unto the said George Augustus Lord Bishop of New Zealand and his successors in trust, nevertheless, and for the use and towards the maintenance of the said school, so long as religious education, industrial training, and instruction in the English language shall be given to the youth educated thereia or maintained thereat."

Bishop. Selwyna plan for the education of tbe three races together never met with the success which he expected. The New Zealand winters proved to be too cold for Melanesia— lads, hence another College was founded for them in Norfolk Island. Most of the school- which he had planned in New Zealand were opened one after the other, aa soon as it was possible in each case; but some, each as Te Ante in Hawke's Bay. an filled entirely with natives; others, such as Wanganui, with Europeans. The intended school at Porirua, however, has never been built. Wars and e_rthqu_kes retarded the progress of the Wellington settlement. The land granted turned out to be of little value; part of it was mountainous, the rest covered with forest; it

acres in all. Bishop Selwyrj. soon after taking formal possession of the land, 'sent a schoolmaster to the spot to see what could be done, but he found that in the existing circumstances it was. impossible to establish a school with success, and returned. The Bishop, therefore, after expending a large «im of money in clearing and fencing the lar.d, let it as a farm, resolving to hoard the rents carefully until they, with any other money that might be given to him, should be sufficient, to build and endow such a school as he had eet his heart upon cst.ib'ishing.

Meanwhile a serious difficulty had arisen about all lands which had been acquired as chnritab'e endowments. Many of the Crown grama had been made out in the numes of the heads of avligjous bodie* " and their successors." But those individuals were _oti legally corponttio—s; hence, in tbe eye of the law, they had no "iKictepsor.s." the word which should hay-? been used -was "heirs." To meet the cw=r, au Act was passed in tbo year 1856, by which it. w:ts provided that whenever any inich grant, bad been made to any person (not a corporation) and his successors, the grant should be deemed to have, been made to the grantee and his heirs in fee simple, subject, of course, to the trusts set. out in the grant. But, although this Act settled the question as to Roman CV.th.i'ie .uvl Wc'cyan charities, it left l-lifi Anglican charities untouched for the Bi:liop of New Zealand had by his letteis patent been mad? a " corporation sole." Ii rmm became apparent, however, that ere long the corporation of the Bibhop of New Zealand would cease to exist, as the t»y«tern, of appointing colonial Bishops by letters ]vtterlt was posing 'away; colonial Chirrohvs were already beginning to form tli'-irw.dve-i into separat,- bodice. Hence in 13b8 another Act was passed enabling B>hop Se'.wyn to convey to trustees appointed by the General Synod tho parcel* of lard which had from time to time been granted to him in trust for religious, edti::".ri<iiul. uinritab'o or other purposes. In that way. the Porirua land became vested ii. tbo present trustees.

Tho fund *.thich the tw-itcs w<v.v .iccumulatiitg grew slowly, ar. 1 no donations were fori booming' to add to it. But by 1895 it-amounted to £6C00; nut enough fc- tli? c.vtabl:*.!irnertt. of a college, but enough to do something with. The Maori population i:v the audghbomhood of IVrirua. whk'h v a.s nover large:, had ere that time dwindled away. The idsn of the tvusttet was tint, the interest from tho acnimulatiora and t">.<s rant derived from the farm (which had considerably increased) should h;- devoted to a .scholarship fund for tho ed'tieaitiwi of -Maoris from? tihe.district (or, failing tkein, of other Maoris) at similar schools, in other parts of the country. They had already ma-dc .some tentative efforts in that direction by -paying ithcf «_p<.'ns\.s of a few Porinia. boys nt tho Mirsion Scihoo.l o.t Otaki; by.it a. 1 ? that was a departure from the strict wording of the 'Prnsb Deed, the consent both Jtf the General Sytnod and of tilie Supremo Court was nece«_ry beforo amyifahing could be dkwio. on a large scale. Tlie. consent of the General Synod was obtained! at 'their session in 1898. The ordinary way in which theconsent of the Supreme Court is obtained to tho carrying out of a trust according to the> spirit, but not, "according to the strict letter of hbe deed: (or, as it 'sJecbnicaUy called, "tho administration of the trust cy pres) is by an information filed irt the name of the Solicitor-General. Tibe trusitots accordingly wrote to tlie SolicitorGeneral for his consent; and, after a delay of three months, received an answer to the effect that Hh* Government declined to act, as they bad resolved! 'to bring the nv.i titer before Parliament!

The importarocc of this may not at first sight appear clrar to the ordinary reader. But it really amounts fo a revolution in tho long"-establishedi practice with regard to iihad'itablo trusts. In En gland, if a Bill is introduced into Parliament to alter a charitable trust, -the first tiling that Parliament considers is whether tlie proposed alteration, is within itho general purpose of the trust; if it is, they decline to df—cms the matter, on tlie ground that it is within the jurisdiction of tho Court of Chancery; if it is not, they enquire whether the Court haa first been consulted, and lias decided that in is advisable that the trust should be departed from. In. this way, care is taken to prevent political feeling being brought into ohaiuty matters; New Zealarvd has now {started on an opposite course.

The Bill was intjroduced by tho Govem- | ment, but never went beyond the first reading. The trus'-ies accordingly commenced proceedings in the Supreme Court, making tihe. Solicitor-General a defendant. They | asked for the approval of ftthe Court to a | scheme which they said would carry out as nearly as possible itho trusts of the j Crown grant, which could not be acted upon according to their strict letter. The Government adopted! a new position, and by their statement of defence claimed that the land had, in oo_sequence of the school I not having been opened, reverted to tho Crown without any trust attached to it, and therefore that the Court hod no jurisdiction to approve any sclteme at all. As a second string to their bow, they added that if the Court had jurisdiction, the Government objected to the scheme proposed by the trustees, om_ propounded another scheme. This new scheme, which was the same aa that contained in the abandoned Bill, was, in effect" that part of the money should be devoted; to the establishment of a. purely ■ secular school at some place within the provincial district of Wellington approved by iltho Government, at which preference should be given to members of tho Ngatitoa tribe and Maoris resident within tho provincial district, and the balance applied to scholarships at tho Victoria College. After Hhe pleadings had been filed, it occurred to the Government that there was yet another device by which the land might bs got possession of. They attempted to amend their defence by claiming that the grant was null and void, as Sir George Grey had issued it without any statutory authority. Tlie Court, however, refused to allow this amendinenfc to be made. The case was heard by Sir James Prendergast, who was at tbat'time Chief Justice. His judgment was not satisfactory to either party, because whilst holding that there was a general charitable object (namely, the establishment of a school for the religious education and industrial training of youths, especially of the Maori race), and that therefore the Court might approve a scheme for carrying it out, although the particular object—a school at Porirua— had become impracticable; and, further, that the school should be of a. religious character—a Church of England school, though open to others, yet he did not feel satisfied on the evidence that the funds were insufficient to establish a school at Porirus., and he did not approve of the scheme proposed by the trustees, which he described as "maintaining youths at a Church of England grammar school." Before the case was brought on again, Sir James Prendergast had retired from the Bench, and his place had been taken by Sir Robert Stout. The trustees came armed not only with evidence which the Court held to be conclusive in showing that the funds were insufficiant to start a school at Porirua, but also with a fresh scheme. There were two pieces of land in the Wairarapa which were held on trust precisely similar to those to which the Porirua land was subject, and which were similarly circumstanced—no schools had been opened, but the rents of schools' c_rcfully accumulated in the hope of schools being opened at some future date. The trustees proposed to amalgamate all these funds, and, with them, to establish one school in tue Wairarapa. The Court, however, considered that the proposal to absorb the Porirua moneys for the support of an institution in the Warrarapa went beyond what was necessary, and suggested that a college should be built In the Wairarapa with the Wairarapa moneys, and that the Porirua moneys should be devoted to the maintenance of scholars at that institution, a preference being given, in awarding the sc-olanships, to Ngatitoa children, or, failing them, to children of the West Coaat tribes, the system of education being in *x»rd_ace with tbe original trust, and no religious tests being applied to the candidates for scholarships. The trustees accordingly modified their scheme in obedience to tbe suggestions of the court. On the 15th day of October the seel of the Court

so far a* the Supreme Court was concerned, the matter was ended.,. .- Thereupon an extraordinary incident occurred. The GoYerniaemy having been beaten in the Supremo Court, brought a Bill into Parliament to restrain the Court from carrying out it* order. This remarkable ~Jill commenced by saying thsA the trustees had alleged that they were unable to give effect to the original trusts according to the true spirit and intention thereof, and that by an order dated th<: 7th day of .September, 1900, tha Court had provisionally approved a scheme varying the original trusts; whereas what the; trustees had really said was that the trusts could not be acted upon according to their strict letter (which is a very different thing), and there had been no provisional order of the 7th of September at all, the only erder had been the one of the 15th of October, and that was „ final one! Some of the members of Parliament realised the dangerous char»cter % of the legislation proposed to them. Quite apart from the merits of this particular case, the liberty of the subject is gone if it in open to tha Government of the day to tamper with the ordeis of the Supreme' Court. Once the precedent is set, it may be followed, in any case, in which v. claim against the Crown is -successful. Parliament may by a short Act declare that the order is not to be carried out. We are taken back to the days of the Tudors. But the session was moribund, and there was no time for the Bill to be passed. Thereupon the Government turned to the Court of Appeal. The next act of the comedy was the filing, on behalf of the Government, of a number of affidavits signed by different Maoris to the effect that they had always understood that the school was to bo for the benefit not of Maoris' generally, but only for these belonging to certain tribes. In other words an attempt was made to alter the plain words of a deed fifty years old by traditional evidence .showing that the parties intended something quite different from what they stated. Yet on this shadowy foundation the Government build up a new claim that- the land had reverted to them on trust; but whom the trust was for was left uncertain.

During the argument in the Court of A'.pe.-il, tho counsellor the fc'oikitor-Gencrai made a statement which was subsequently embodied in his defence by way of a_ler.ument. It was in the following words: — "'lhat tlie terms of cession to the Crownby the aboriginal natives of the lands comprised in the grant wero such as to preclude the Crown from consenting to the application of tho said lands and the rents and profits thereof to any other purposes or objects than those expressly mentioned in the grant, and that the Crown has a duty to observe the terms of the cession to itself and the trust thereby confided by the aboriginal natives in the Crown, and that the Executive Government has xletennined so far as the matter is one for the determination of the Crown tnat any departure from the precise terms of the grant by tho application cy pres of the said land and funds without the assent of the Parliament of the colony would contraverse the terms of the said cession and be a breach of the trust thereby confided in the Crown." In order to understand the judgment of the Court of Appeal, one has to refer to musty stories of medi—val history. In former times in England, justice, in the sense that we understand; it, between the sovereign and a subject, was unknown. Under the specious phrase "Prerogatives of the Crown, special privileges were given to the King which were denied to ordinary sailors. These have been quietly dropped since the Revolution of 1688, but are still to be found in anticruated text-books. Amongst these is a maxim that if the King makes a grant, and is deceived in the consideration for the grant, the grant is void. In' this case, the grant commences with the words "Whereas a school is about to be established." Therefore the object of the erant was that scholars should be taught. By a little straining of language, an object might bo called a consideration. - The word consideration carries with it certain legal results. 'No school had been established. Therefore the consideration had failed. Therefore the King haa\ been deceived. Therefore the grant was. void. It is true that a charitable object and a consideration are quite different things; that tho very maxim referred to speaks of "the consideration which is for the benefit of the King," that the textbooks go on to say that tie maxim applies only when the misrepresentation is made by the grantee and not when the King is deceived by his own surmises, whereas in this case there is no evidence that Bishop Selwyn made any represent--

tions at all, or that Sir Q. Grey did not enquire into the circumstances for himself; that there was not the slightest suggestion that there was any intention to deceive, and that the House of Lords had long since exploded the idea that there can be such a thing as deceit in law when there is no deceit in fact; all these were trivial details to be slurred over; the Government of New Zealand to-day must be treated like the King in the days oi the Tudors; the Crown grant was declared void. But tho judgment did not end there. The Court of Appeal argued that os tiiere is rio school now at Porirua, therefore if one had ever been started, it must have come to an end, and the estate of the Bishop must have ended with it, as the grant said "In trust for the said school so long _* religious education, etc., shall be given therein." Seeing thai no one had ever suggested that the school had been established, what this part of the judgment has to say to the case is hard to understand. One may remark in passing, however, that if the Crown grant is thus to be construed according to- tlie strict rules of conveyancing, its effect- is exactly tho opposite; the gift to the Bishop is absolute; it is only the trust for the benefit of the school which is limited to tho time during which religious education, etc., is given therein; and so, if that ceased, the Bishop would be absolute owner. Then the Court went on to intimate that even if the grant were valid, and there were a general charitable trust which the Court could direct to be carried out cy pres after tlie failure of the particular object of a school at Porirua., yet the Court would decline to exercise its jurisdiction, bacause the counsel for the Grown had stated that the Crown objected on the ground of some ill-defined "duties" or "obligations" on its part to the natives who ceded the "and. Have wo then come to this: That the Courts of New Zealand will refuse to perform their duties and enforce the rights of parties if the Government of the clay objects to their doing so? ' The Trustees naturally resolved to appeal to tho Privy Council. By the pleadings filed by the parties, not only were all the questions raised, • which had been argued in tlie colonial Courts, but | the Solicitor-General'revived the old conI tention Mmt the Crown grant w_s void, j having been issued without statutory au- [ thority. The case was heard on the 2nd of December, the members of the Judicial I Committee present being Lord Macnaghton, Lord Lindley, Sir Ford North, and Sir i Arthur Wilson, Mr Levett, K.C., and Dr. Penncfather appeared for the appellants; Mr Haldane, K.C., and Mr Northoote for the respondent. It may be said, therefore, that it was argued before an exceptionally strong tribunal,, by two of the most eminent members of the English Bar, afisisted by counsel who had special knowledge of New Zealand law. The proceedings were considerably sliortened by the fact that the counsel for the respondent realised that, they must abandon' as untenable all tho grounds on which the Court of Appeal had based their judgment, and take the desperate course of arguing that the judgment might still be supported for totally different, reasons. Their Lordships did not even call on the uppeJlants to reply! Judgment was delivered <m the 10th of February, 1903. )[_ may be doubted whether tlie Privy Council have ever couched a judgment in terms so scathing. Their Lordships point "out that in refusing to bring an information tha Solicitor-General declined his proper duty, and express surprise that (he should have thought it consistent with the traditions of his high office to attack a charity which it was prima facie his duty to protect. Tlie scheme propounded by the Government they describe as one in which the original trusts of the charity are apparently ignored altogether. When their Lordships come to discuss the judgment of the Court of Appeal, they dismiss the. second ground on which it was based—namely, that the trust must have come to an end, as it was only to last so long as religious education, etc., was given —in a sentence, by, saying "As it is common ground that no school was ever established at or in the neighbourhood' of Porirua, it would seem to follow that the occasion on which the trust, according to the

construction placed on the grant by the Court of Appeal, vis to cease and determine, never arose and never could havo —risen." The other ground—namely, that the Crown was deceived —is e___i_ed with more dctau, but with even more severity. ' There, too," say their Lordships, " the Court has recourse to an assumption wh eh has no basis in fact What evidence is there that the Crown was deceived? Absolutely none The evidence is entire ly tbe other way." Tho Governor did not wait to communicate with Bishop Selwyn; it » not suggested that he communicated with anybody else; to found a charge of misrepresentation on the, letter of the native donors would ha absurd. Even it the recital in the Cro*gnuit could be taken as evidence, it doe* not imply that the school was to be established within any fixed and definite period of time. ' Why," their lordships add, "should the Court attribute to tho Government of the past more than childlike, aimplicity in order that the Govern* ment of to-day may confiscate and appropriate property which never belonged to tho Crown?" The judgment then, having dealt "briefly with the arguments by which the conneel for the respondent sought to eatatihsh the judgment of the Court of Appeal on other grounds, goes on to point out that the , whole order was improper tor » different reason., A olaim to have the trusts of * deed carried out cy pres is one thing, —u_ * may raise an issue ac to the propriety of the suggested scheme, or*tho like. Bot a claim to set. aside a settlement aad hare it declared null and void, is quite different!. It is really an action for the recovery oi land, in which the claimant, whether he be the Crown or a private, person, jm_t J. prove his case or fail altogether} to allow J such a. claim, to be put forward as a defehicrj dn thjs fsctoa wao endfemari-g and unfair. The amendment added bjjr the f - Solicitor-General at tha last moment is _e« - , scribed by their Lordships as *'a-wdley c* allegations incapable of proof and rate* \ * merits derogatory to the Court." * " v _ y But the most severe language of aU,4i reserved for the oriticaun of th* coarse* r"i v taken by the Court of Appeal in fatia&mg f*£ that even if they had not been able to -JKt satisfaotory reasons for deciding in farour of the Crown, this amendment would ■- of itself _aye provented their -Mtkinjt an order in fnvpur of tho trnsteee. Their " Lordships show plainly tlw.t it was per- ,*■ fectly clear that the Court had jarf-oHc- * tiop, and had no right to decline to exer> cisc it. The proposition advanced on be* half of the Crown was not flattering to ~ the dignity or the of tho highest Court in Now Zealand, or even to the intelligence of tbe Parliament. When .-, there is -a- suit properly constituted and ' lipe for decision, -nay should justice bo ,>, denied or delayed at the bidding ol the » Executive? Their Lordships conclude by v \ sayiiig that in their opinion the reaper.id__! *£> ban been wrong in every step from _n*t to , last. . We do rot blame tho Solicitor-Qeaex-L *" He was a civil servant, acting under or* ders, and, apparently, those orders were to harass the trustees to every possible way, fair or unfair The result of the ' action of the Government m that a charity school which might have been doing good work for the last four yean is still unbuilt, and will be permanently —rippled by the ruinous costs it has to bear; that the taxpayers: will have to pay hundreds, '" if not thousands, of pounrw which have been wasted in litigation; that a dsngeroa* ' - precedent has been set by the attempt of ... the Executive to interfere with t_e law Courts j and that the colony has been made to look ridicufe—• in tho eyes of tho Em« pre.