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SWAINSON, William, 1809–1884
Attorney-General, member of the Executive and Legislative Councils, and writer.
A new biography of Swainson, William appears in the Dictionary of New Zealand Biography on this site.
William Swainson was born in Lancaster, England, in 1809. The eldest son of a merchant, he was educated at the local grammar school, admitted to the Middle Temple in 1836, and called to the Bar two years later. He was employed as a conveyancer up to his appointment in 1841 by Lord John Russell as the second Attorney-General of New Zealand, in succession to Francis Fisher, the first Attorney-General of the colony.
Swainson sailed to New Zealand on the barqueTyne
which arrived at Auckland on 25 September 1841. Associated with Swainson on board and in preparation of legislative ordinances were William Martin, the Chief Justice, and Thomas Outhwaite, later Registrar of the Supreme Court in Auckland. A sincere churchman, Swainson was strongly inclined to the humanitarian viewpoint so pronounced in relation to the treatment of native peoples by the Evangelicals of the day. As he indicated in his own book,New Zealand and its Colonization
, he conceived the British Government's principal object in establishing its authority to be the promotion of the civilisation and development of the Maori people. This idea was basic to much of his thinking and activity as a member of the Executive and Legislative Councils. While he was deeply concerned with the establishment of law and order and the appropriate Courts to secure these ends, he was primarily concerned with protecting the Maoris from the ills which might follow from colonisation of the country by Europeans or by the introduction of responsible government.
Swainson held the office of Attorney-General until 7 May 1856 by which time the Crown colony period of New Zealand history had ended. He continued as a member of the Legislative Council, as created under the 1852 Constitution Act, until July 1868, thus providing a measure of continuity through the early decades of British government. His most important work was done in the years immediately after his arrival in Auckland.
Swainson showed great skill and sound knowledge in the drafting of ordinances designed to provide for the good government of the country, its legal system and the administration of land laws, conveyancing and a host of general matters. He also steered these laws through the Legislative Council of the regimes of Hobson, Shortland, FitzRoy, and Grey. A total of 19 Acts were passed between 14 December 1841 and 21 March 1842. Some provided for a Supreme Court, County Courts of civil and criminal jurisdiction, juries, and the powers of Magistrates and Justices of the Peace. Others dealt with the registration of deeds and with property; the Conveyancing Act was his greatest triumph. Both Lord Stanley and James Stephen at the Colonial Office praised the clarity and intelligibility of Swainson's laws and the degree to which he had laid down a completely new basis for the legal system of the colony without trying to build on the complicated survivals from the distant past in English law.
Swainson failed to get his land legislation adopted because he so completely neglected public opinion. Over the Wairau Affray he upheld the need to respect Maori titles to land. In his enthusiasm to uphold the Waitangi principles, he advanced theories as to the origin and extent of British sovereignty that were quite unacceptable in the Colonial Office and he was rebuked and threatened with loss of office by Lord Stanley. Nevertheless, under Governor Grey, Swainson did defeat, for a time, threats of land grabbing on the part of vigorous colonists.
Together with Judge Martin, Swainson assisted Grey in drawing up proposals which were in large measure translated in England into the Constitution Act of 1852. He had already been prominent in providing for municipal and provincial institutions in keeping with the geographical and historical circumstances which had led to separate colonising schemes in different parts of New Zealand. He was the first member appointed to the new Legislative Council, of which he also became Speaker from 16 May 1854 to 8 August 1855. Swainson was Acting Governor Wynyard's principal adviser. From internal evidence it is clear that he wrote many of Wynyard's speeches and dispatches. During the discussions of 1854, on whether or not responsible government could be introduced by Wynyard, Swainson stood firmly against any such move although he acted as a channel of communication between the Governor and E. G. Wakefield and others. As Attorney-General, Swainson held that neither the Constitution Act nor the instruments, whereby the Government was established, enabled the Governor to establish ministerial responsibility without reference to the Colonial Office. He did, however, concede that a mixed Ministry made up of the permanent office-holders, such as the Attorney-General, Colonial Secretary, and Colonial Treasurer, and two or three elected members of the Assembly, might be tried as it was. Swainson obviously considered himself answerable to the Crown alone and not in any degree to the colonial legislature. He has been criticised by some as defending his own position and salary which, in effect he was doing, but in fact he had no faith in the principle of responsible government and was utterly opposed to its introduction if it meant placing the Maoris, the great majority of Her Majesty's subjects in New Zealand at that time, at the mercy of a land-hungry European minority. After the Assembly was prorogued, partly on his advice, on 16 September 1854, Swainson departed on leave for England. The Colonial Office authorised the introduction of responsible government and in 1856 provision was made for the retirement of Swainson and the other officials on pension. In Swainson's case, he was to receive an annuity of two-thirds of his previous salary of £400. He remained a member of the Legislative Council, however, until 1868, although he did not attend after 1864.
Swainson apparently hoped to see the Church of England made the established church as in England but the opposition of other denominations was too strong. In 1847 he tried to give Church of England clergymen more extensive rights than others in the solemnising of marriages but again he was defeated. With Bishop Selwyn, he played an important part in drafting the constitution of the Church of the Province of New Zealand in 1857 and in getting it passed by the General Synod in 1859. For several years he held responsible offices in the Auckland synod.
Swainson's books—Auckland and its Neighbourhood (1852), Auckland, the Capital of New Zealand (1853), New Zealand and its Colonization (1859), and New Zealand and the War (1862) contain useful descriptions of the early Auckland scene and demonstrate his concern for Maori interests.
Small, precise, dapper, Swainson was always the careful lawyer, careful of precedents, careful in giving opinions, and careful to sustain those principles in which he believed. Although naturally retiring and modest in that he never sought publicity for his successes, Swainson was self-assured almost to the point of being self-conceited when it came to dealing with legal questions. He was almost completely indifferent to public reactions to his views and proposals, holding that the public were not equipped as he was to deal with such matters. Especially in his later years, he acquired a reputation of being a cultured English gentleman. He died at Judges Bay, Auckland, on 1 December 1884. His importance in New Zealand history lies in his ordinances, many of which are now incorporated in consolidating legislation, which did so much to establish government, Courts, and law in this country.
by Angus Ross, M.C. AND BAR, M.A.(N.Z.), PH.D.(CANTAB.), Professor of History, University of Otago.
- New Zealand Rulers and Statesmen, Gisborne, W. (1897)
- Crown Colony Government in New Zealand, McLintock, A. H. (1958)
- New Zealand Herald, 2 Dec 1884 (Obit).