The impetus of Enderby’s proceedings against Dundas and Preston was interrupted on Monday by a public holiday and celebrations for Queen Victoria’s thirty-third birthday. At midday HMS Bramble fired a 21-gun royal salute, followed by a ‘feu de joie’ and military manoeuvres from the army at Thorndon Flat and ending with a march to the Council Chamber, where a guard of honour was formed to await the arrival of the Governor-in-Chief, Sir George Grey. Grey’s deputy Lieutenant Governor Eyre and Lieutenant Governor Enderby, both in black and gold full dress Windsor uniform complete with swords and cocked hats, ‘made their appearance, and politely acknowledged the salutations’ of the crowd. At one o’clock Sir George duly arrived on horseback, inspected the guard of honour and ‘proceeded at once to the Council Chamber to hold a Levee in honour of Her Majesty’s birthday’.11
Lieutenant Governor Eyre of New Zealand and Lieutenant Governor Enderby of the Auckland Islands headed the list of guests, followed by prominent citizens such as Mr Justice Stephen and the Attorney-General. The remaining guests, listed in alphabetical order, included ‘Dundas’ and ‘T.R. Preston’ and, at the end of the list, ‘Meteteri from the Auckland Islands’.12 Later, in the evening, a Grand Ball was held, ‘Lieutenant-governor Enderby & Messrs. Dundas and Preston being among the most distinguished of the strangers present on the occasion’.13 For Enderby the day must have been rich in irony, and something of a triumph, to be savoured and remembered.
Dundas and Preston, stung by Sir George Grey’s honouring of Enderby at the Queen’s Birthday celebrations, now protested at Grey’s recognition of Enderby as Lieutenant Governor. They claimed it was a titular position only, created ‘solely to enable him to aid and assist the Company, and not to do it the injury he has sought to inflict upon it’. They said he should be deprived of the opportunity for any further interference; and their letter ended by asking Grey to give them whatever assistance he could.14
In contrast to his dealings with Enderby, Grey replied by way of his private secretary, stating that until Her Majesty revoked Enderby’s warrant, Sir George was duty-bound to recognise Enderby as Lieutenant Governor. He would not interfere with any action of Enderby’s concerning the Company, and would where practicable help the Company to sort itself out.15
Earlier, Enderby had protested to Grey about ‘various proceedings’ taken by Dundas and Preston.16 Grey had replied that while he was not empowered to interfere in any way in events that had taken place at the Auckland Islands, he was still prepared to ‘afford your Excellency any such aid and assistance as you may apply for.’17 In other words, having given the impression of sympathetic support to both parties, he was determined not to become involved.
Dundas and Preston’s letter to Grey had opened with the words ‘We think it right, before we leave this place …’, which implied they had every intention of doing so reasonably soon. Their tone was similar to their earlier assertion to King that, having brought Enderby to Wellington, they had ‘nothing now to do with him’.18
To thwart any plans they might have of sailing to Sydney and London and so escaping their approaching trial, Enderby placed a restraining order on the Black Dog to prevent it leaving Wellington, other than to sail to the Auckland Islands to bring back trial witnesses or sworn affidavits as to what had taken place.19 But as soon as the restraining order was imposed, a complicated dispute developed over the vessel’s ownership. As Mr Carkeek, the Collector of Customs, explained, he had detained the Black Dog because of Mr Enderby’s claim to be its sole legal owner. However, Grey’s colonial secretary advised him that in Sir George Grey’s opinion the Southern Whale Fishery Company was in fact the real owner, and Enderby’s name on the register was an error on the part of Captain Towns when Enderby had purchased the vessel in Sydney on behalf of the Company. Carkeek was ordered to clear the ship, with the proviso that Enderby and his solicitor be given time to apply to the Supreme Court to counter his clearance. This they did, and on 15 June Carkeek finally received an injunction from the Supreme Court to withhold the vessel’s clearance to sail.20
The case of Enderby v. Dundas and Preston began before Mr Justice Stephen in the Wellington Supreme Court on Monday 21 June 1852. Enderby, represented by the Attorney-General and Mr King, was called upon to show cause why the defendants, who were held to bail, should not be discharged out of custody. Dundas and Preston, for their part, had tried without success to get the writ of arrest against them set aside and their bail of £500 reduced.
Enderby’s charges against them rested on the ways in which they had usurped and denied his authority as Lieutenant Governor, ejected him from his residence, interred the body of a seaman in defiance of his orders, prevented him from sending mails and compelled him to leave his seat of authority as Lieutenant Governor of the Auckland Islands.
Over the course of four days, the often damning correspondence of the long and bitter dispute between them was read out and argued over. Dundas and Preston’s charges against Enderby were enumerated; that of absence from his post while in Wellington and Sydney was torn to shreds by the Attorney-General, who, with Sir George Grey, knew just how hard Enderby had worked during his two visits to the city. Dundas and Preston made no attempt to deny the contemptuous manner in which they had treated him; nor did Preston deny having said that the plaintiff was a murderer. They did not contest Enderby’s claim that while the Black Dog was on the voyage to New Zealand, Preston had altered the vessel’s logbook by striking out the words ‘Governor Enderby’ and substituting ‘Mr Enderby’ underneath instead of above his own and Mr Dundas’s names; and that he had subsequently torn out the page bearing these alterations.
A rockhopper penguin nesting under the cover of Anisotome leaves, on the lower slopes of Disappointment Island.
In a long letter to Sir George Grey of 23 May 1853, almost a year after the trial, Enderby reminded Grey that ‘in the affidavits sworn and filed in the Supreme Court, I stated that I had been informed by Mr W.F. Munce, that Messrs. Dundas and Preston had told him, that if I did not go quietly with them in the “Black Dog” to New Zealand, they would take me on board in irons’. During the trial Dundas and Preston absolutely denied having made any such threat, although by this time it was widely believed they had done so. Munce’s letter of support came too late for the court hearing, but its text was included in the House of Commons Parliamentary Papers of 1855, which was a consolation for Enderby, although it would have no effect on the British government’s final decision.21
Enderby’s counsel John King next went through the affidavits of Thomas Goodger, Dr Ewington and Dr Rodd, concerning the defendants’ lapses in the case of seaman Downs, and commented strongly on the defendants’ conduct towards his client as shown by their own affidavits. He said he could see no grounds for reducing bail.
His Honour Mr Justice Stephen, summing up, stated that, in the circumstances, proceeding to a full trial would only be abortive. He had already reached his decision, and did not wish to hear further from the defendants’ counsel. He ruled that as no direct force or violence had in fact been used by the defendants, the action brought against them by Lieutenant Governor Enderby would not lie, largely because Dundas and Preston had not acted on their own behalf, but on behalf of the Southern Whale Fishery Company. On the other hand, he considered the order for their arrest was properly made, and would therefore allow them no costs or action against it. He concluded with a strong condemnation of their conduct towards Enderby, and believed Enderby had a good cause for action against the Company for breach of contract if he chose to pursue it in England – in which case he would find Dundas and Preston’s affidavits and those of Thomas Goodger and Doctors Ewington and Rodd of considerable use to him.
Each party was ordered to pay costs, which would not have been the case had Enderby’s charges against Dundas and Preston been groundless; and an arrangement was made between the lawyers whereby Dundas and Preston agreed to pay Enderby £400 for the schooner Black Dog, in lieu of the salary due to him from the Co
mpany.22 In return, Mr Enderby was to release Dundas and Preston from all personal liability.
The bitter fight between them appeared to be over. If there was a winner at all, it was probably Enderby. But a longer and harder battle to vindicate his name still lay ahead.23
Six days after the trial, Dundas left for the Auckland Islands on the Black Dog to supervise the winding up of the Company’s operations there; and three days later Preston sailed for Sydney, where he intended to stay for some time before returning to England.24 To Enderby it must have been a relief to know they were no longer in Wellington.
The day after Dundas’s departure, Enderby wrote to Sir George Grey: ‘As I have been forcibly removed from my seat of government, which I have no right to abandon until I have been authorised to do so by Her Majesty’s Secretary of State, I deem it incumbent on me to apply to your Excellency to restore me to the Auckland Islands at as early a period as may be convenient.’ He acknowledged there could be difficulties:
I believe it to be the intention of Messrs. Dundas and Preston to remove the Whale Fishery Company’s station to some place at present unknown to me; it is therefore questionable whether I should subject the Government to the trouble and expense of sending me to a place where my presence may in reality be no longer requisite; I beg, however, to be permitted to leave this question to be determined by your Excellency.25
By the time Grey replied, he would probably have received Sir Everard Home’s supportive letter from Sydney, giving his opinion that a more violent blow could not be struck at the royal prerogative than by denying Enderby was still Lieutenant Governor. The letter concluded: ‘I hear that you gave a ball and that Lieutenant-governor Enderby appeared in uniform which I am very glad of,’ and Sir Everard’s opinion that Dundas and Preston lacked administrative experience.26 So Grey was probably sympathetic when he wrote back that, so far as the New Zealand government was concerned, it was not within his powers to assist Enderby in returning to the Auckland Islands:
Young royal albatrosses ‘gamming’ in a social get-together, as whaling ships’ officers and crew did when they met and exchanged news.
because by so doing I should not only entail upon the Government the expense of, in the first place, sending you to the Auckland Islands, but farther of maintaining yourself and a proper staff of officers there until such time as the further instructions of Her Majesty’s Government were received; and then, finally, of providing for the removal of yourself and the persons who were with you, when the directions of Her Majesty’s Government reach me, all of which proceedings would entail a very large expense upon this Government, to meet which no funds whatever have been provided.27
Grey ended the letter on a conciliatory note, saying that he felt Enderby would be bound to agree with his decision. Shortly afterwards he forwarded copies of the correspondence concerning Enderby and Dundas and Preston’s differences to Earl Grey in London, pointing out that he ‘did not feel justified in interfering in any way in these differences, and therefore declined doing so’.28
Enderby spent a further year in Wellington, corresponding with the Colonial Office and awaiting confirmation of the Queen’s final acceptance of his resignation. Letters conveyed by sailing ship took time: the response to a letter written by him to the Secretary of State on 4 September 1852 had still not arrived by the time Enderby finally left Wellington for England in mid-July 1853.29
Misunderstandings and mistakes between New Zealand and England, such as confusion over Enderby’s salary, could take months to sort out. The Chief Justice’s award of £400 to Enderby after Dundas and Preston’s trial had been partly to compensate for his curtailed and unpaid salary as Chief Commissioner, and had nothing to do with his office as Lieutenant Governor. But Sir George Grey, writing to the Secretary of State and explaining why the New Zealand government could not afford to return Enderby to the Auckland Islands, concluded by stating that Enderby was
resolved upon not returning to England until he has received your Lordship’s permission to do so; and I understand that Mr. Enderby, in adopting this proceeding, considers that your Lordship’s department is bound to find his salary for him until such time as he receives your Lordship’s instructions, and that ultimately the [British] Government will have to provide him with a passage to Europe. As I have received no instructions from your Lordship on these subjects, I am quite unaware of the nature of the arrangement entered into with Mr. Enderby, and to what extent his expectations may be just or not.30
This letter was acknowledged by the current Secretary of State for the Colonies, the Duke of Newcastle, who pointed that while Enderby still remained Lieutenant Governor, the appointment was at his own request and that Mr Enderby was ‘fully aware that he has no claim on Her Majesty’s Government in respect of salary’31 – and that the government of the Auckland Islands for the protection of the natives still there was now Sir George Grey’s responsibility. This was of course embarrassing for Enderby, who had never made a claim for salary from Her Majesty’s government.
From Enderby’s departure from Port Ross in April through to August 1852, the settlement was gradually disbanded. A large number of settlers left on the Brisk and the Black Dog on 17 July, bound for Otago and Wellington.32 Enderby would have made contact with those who had decided to stay on in Wellington and other parts of the North Island, such as the Cripps and the Bromleys – people he had been instrumental in bringing halfway around the world. Others, like the Goodgers, may have been glad of help in preparing for the long passage home to England. Some, like the Munces, whom he would have liked to see again, had decided to settle in Australia and had sailed for Sydney on the Fancy and Earl of Hardwicke, calling only at Otago en route.33
Enderby still felt bitter about Grey’s apparent favouring of Dundas and Preston. He protested in a long and hard-hitting letter to Grey of 23 May 1853, after he had been in Wellington almost a year, that not only had Grey granted them a long interview soon after their arrival,34 he had ‘showed them marked attention by repeatedly entertaining one or both of them at your table, which gave rise to numerous observations, and it certainly exhibited a want of that consideration which is due from the governor of one colony to that of another’.35
Grey’s equally hurt response was clear in a note he jotted in the margin of Enderby’s letter, which he must at first have intended to forward to England: ‘I have enclosed a copy of a letter from Messrs. Dundas and Preston protesting against the consideration with which I treated Mr. Enderby. These counter-statements will show the extreme difficulty I had in dealing with the persons engaged in this case. – G.G.’36
His reply to Enderby said that he deeply regretted that Enderby should have written such a letter and that, unless required to do so, he would not transmit it to the Secretary of State because he could not do so without complaining in very serious terms of Enderby having addressed such an unbecoming letter to him. Besides which it would be excessively painful to him to make any complaint whatever against a public servant, who had had such very serious difficulties to contend with as those with which he had grappled with so much energy at the Auckland Islands. The letter was signed G. Grey, and addressed to ‘His Excellency Lieut.-governor Enderby, &c. &c. &c.’37
In spite of their differences, Grey bore Enderby no long-term grudge, as is evident from two further footnotes he penned in the margin at the end of Enderby’s letter: the first said he had ‘never made any statement whatever against Mr. Enderby’; and the second, in reply to Enderby’s accusation that Grey had treated him throughout in an unfair and discourteous manner, stated that ‘I most sincerely pitied Mr. Enderby, and … have, at very considerable personal inconvenience to myself, done my utmost to treat him with courtesy, and far more than ordinary kindness – G.G.’38 Much later, in a letter to the Duke of Newcastle a year after Enderby’s departure from New Zealand, Grey commended Enderby’s enterprise and energy: ‘I think it due to Mr. Enderby to state, that whilst he was acting as Lieutenant-governor of the Au
ckland Islands, I visited those islands, and was, in common with other persons, struck with the enterprise which he had shown, and the energy with which he had exerted himself to try to develop their resources.’39
Shortly after his letter of 23 May which Grey had considered ‘so very unbecoming’, Enderby wrote to Grey:
I cannot disguise the fear, that the transmission of letters [by Dundas and Preston], deeply affecting my character, by your Excellency to the Secretary of State, without affording me an opportunity of sending at the same time my own observations on those letters, may seriously prejudice me in the opinion of the Government.
However, he concluded, he was ‘willing to allow the matter to rest, if upon my arrival in England, I meet with that attention and consideration from Her Majesty’s Government which I have a right to expect’.40
His fears were greatly allayed when, just over a week later, Grey sent him extracts of despatches from the British Secretary of State, ‘of a very satisfactory nature, since they lead me to infer that Her Majesty’s government are willing to afford me any reasonable protection and countenance, in the event of its appearing I have sufficient grounds of complaint against Messrs. Dundas and Preston.’41
Enderby must have reflected that none of this would have happened if his early plans had been successful. The failure of whaling was at the root of everything. In less than three years, it had taken him from the triumph of the London Tavern send-off and the high point of his career, when a knighthood at the least would have seemed almost inevitable, to his present unhappy situation. The possible decline in whale numbers was hard to come to terms with, when it had been thought for so long that the very sea itself was a limitless and infinite resource.
The Enderby Settlement Page 19
