Remarks on 'Notes published for the New Zealand Government'... and on Mr. Richmond's Memorandum on the Taranaki Question...

William Martin

First published by Printed at the Melanesian Press in 1861

Digitised and made available online by the University of Auckland Libraries and Learning Services.

Epub © 2017 Early New Zealand Books Collection

ISBN 978-1-98-851348-5

[TITLE PAGES]

REMARKS
ON
"NOTES PUBLISHED FOR THE NEW ZEALAND GOVERNMENT,"
JANUARY, 1861.

AND ON
MR RICHMOND'S MEMORANDUM
ON THE TARANAKI QUESTION,
DECEMBER, 1860.

BY
SIR W. MARTIN , D.C.L.
LATE CHIEF JUSTICE OF NEW ZEALAND.

AUCKLAND:
PRINTED AT THE MELANESIAN PRESS.
1861.

[Page ii is blank]

Upon the publication of my Remarks on the Taranaki Question, a large body of "Notes" challenging the accuracy of many of the statements therein made, were published "for the New Zealand Government." Seeing that these "Notes" avowedly expressed the views of the local authorities, it appeared to me that they ought not to pass without notice. But the publication of these official "Notes" was followed shortly after by a Notification in the New Zealand Gazette (25 Jan. 1861) deprecating public criticism on the conduct and policy of the Government, in the following terms:

"The Governor fully recognises the right of every British subject freely to discuss, criticise, and censure the acts of the Government, and, when the danger now threatening has passed away, he does not desire to see that right restricted.

"There are, however, occasions when the unrestrained use of such a right becomes manifestly dangerous to the community, and he feels it his duty to state that such an occasion now exists in this. Colony."

As a copy of this official Notification has been specially addressed to me by the direction of His Excellency the Governor, I understand it to be the desire of the New Zealand Government that their "Notes" shall not be made the subject of public criticism. In deference, therefore, to their wish, I abstain for the present from giving publicity within the Colony to the following pages.

[Page iv is blank]

The following Remarks on the Government 'Notes' and on Mr Richmond's 'Memorandum' have been made as brief as possible. Those statements only have been commented on, which appeared likely to mislead the reader as to some material point. Many minor assertions and inferences, which I believe to be incorrect and unsound, have been passed over; either in the belief that their irrelevancy to the main question will be observed by a careful reader, or from an apprehension that the length and complexity of our Colonial documents may render them unreadable at home. Of course I pass over those assertions, as to which the evidence set forth in my original remarks appears to me to have anticipated and negatived all that is now urged in the 'Notes' and in the 'Memorandum.' I refer particularly to the statements made in the latter documents as to the nature and grounds of the present quarrel, as to the alleged connection of that quarrel, in its origin, with some land-league or with the Waikato King movement, as to the cession by Waikato, &c. I wish to avoid any repetition of what has been already said. In some cases the point relied on by the Government recurs in several Notes or in several passages of the Memorandum; in such cases I have noticed the point in connection with that passage, in which it seemed to be most prominent. I believe there is no assertion or argument concerning the substance of the question, either in the Notes or in the Memorandum, which is not directly met in these Remarks.

I adopt the references as I find them in the Notes, that is to say, "page 28" means, the Note headed "page 28," and referring to the 28th page of the "Taranaki Question."

W. M.
Taurarua,
Feb., 1861.

ERRATUM

Page 2 line 16, for "in property" read "of property."

REMARKS ON NOTES PUBLISHED FOR THE NEW ZEALAND GOVERNMENT.

REMARKS

ON

NOTES PUBLISHED FOR THE NEW ZEALAND GOVERNMENT.

PAGE 1. NOTE 2.

Mr Busby's statement is cited as if it were entirely opposed to mine. In reality, the only difference between us is as to the origin of the rules: a question upon which it is unnecessary to enter.

To shew this I set out the whole paragraph, of which only the first sentence is cited in the Note: –

"I have no hesitation in saying that the rules which Sir W. Martin lays down, as established by a singular concurrence of the best evidence, are not rules of native origin. That they hare been 'generally accepted and acted upon by the natives in the later periods of their dealings in respect to lands, I do not dispute; but they are the natural and necessary deductions from the proceedings to which our own countrymen had recourse, in order to obtain an equitable title to the lands which they purchased from the natives. It is not more than twenty-five or thirty years since the natives first began to look upon land as an object of exchangeable value."
(Mr Busby, page 7.)

In page 8, Mr Busby again carries back the existence of those rules to a time previous to the foundation of the colony:

"In fine, the result of my experience during the seven years in which I held office, was a conviction that the natives had no idea of property in land, such as exists in the minds of people where it has been the subject of legislation. And that the rules which Sir W. Martin lays down, were not rules established by natives, but suggested by the precautions adopted by our own countrymen in order to obtain a title which could not be justly disputed."

These admissions are quite sufficient. Indeed there is no real contradiction between Mr Busby and myself as to the existence of rights in property amongst the natives. The difference is in the sense given to the word "right." Mr Busby uses the word in the legal sense, as that which has a corresponding remedy, and is supported by some law.

He says in page 5: –

"In these remarks we have only to do with the rights of property, as they are necessarily understood by jurists and statesmen, implying corresponding obligations to respect such rights. In this sense I do not hesitate to say that, so far as we can trace their history, there is no evidence of the New Zealanders ever having possessed any rights, with the exception of those which were created by the Treaty of Waitangi. Of what use is it, practically, for a man to say I possess a right to my property, when there is no law to define the obligations which

are created by such a right, or government with power to administer the law, supposing it to have existed? New Zealand was, in an emphatic sense, a country without a law and without a prince."

I use the term for that which was acknowledged and warranted by custom, though there was no law in our sense to uphold it.

I subjoin a passage from a speech delivered by Mr Dillon Bell in the House of representatives, 3rd of August, 1860: –

"We know how at the great original migration the occupants of the first canoes took possession of the land; we know how it became subdivided as the tribes increased, and the hapu branched off from the iwi, we know how particular and distinct titles arose as land was subdued by cultivation, as hunting-grounds were claimed for catching the rat, as weirs were erected in the streams, or as numberless other special acts of ownership were exercised; we know how these distinct titles still merged in the tribal title, and did not destroy it these are customs universally recognized, lying (as I said) at the foundation of native tenure throughout the islands." (New Zealander, Aug. 8, 1860)

It may be well to say that I have never intended to uphold the tribal or communal right as a good thing in itself. I assert it only as a fact which now exists, and which has existed from time immemorial. It was the only way in which the tribal form of society could be kept up. For to alienate land to a stranger, was to alienate to one who might any day become an enemy. The whole tribe therefore was interested in the matter

for the sake of its own independence. It was something like what we call an Alien Law. Afterwards when the Pakeha came, it acquired a new meaning, but one of scarcely less practical importance to them. It is a question of great moment to them, whether a single man or a few men may, without the consent of their fellows, introduce into the midst of their cultivations an ineligible neighbour whose cattle may range over their unfenced land, or who in a variety of other ways may injure or annoy the rest of the community. Nor would the social evil be less. Such a principle would be fertile of quarrels. It would offer an opportunity to every ill-disposed man to gratify private resentment, and to embroil his tribe with the Pakeha. In this very case there are indications of something of this kind.

It is for the interest of both races that individual rights should be substituted for the right of the Community, as far as possible. But this can only be effected by rational means, not by mere force.

PAGE 2, NOTE 1, AND PAGE 3, NOTE 2.

It is asserted in this Note that when the captives and the persons who had voluntarily migrated to other places began to return to Taranaki, those families which remained in the new places where they had settled, were never admitted to exercise authority over those who returned, in the disposal by the latter of their own land. It is also asserted, that for the last eighteen years it has been acknowledged amongst themselves that even a family of three or four people were free to dispose of or to retain their property. In

page 3, Note 2, this is asserted broadly as applying to the whole tribe. It is said to have been an acknowledged usage among the Ngati awa that their separate families had separate rights of alienation.

It is believed that these assertions are incapable of proof. They are directly contradictory to Mr McLean's statement, 17th December, 1844, (Taranaki Question, page 16,) and also to Mr McLean's practice. For, upon the principle now alleged, the visits to Queen Charlotte Sound and Wellington were unnecessary.

So extraordinary an exception to the general rule should have been properly proved, before force was resorted to.

PAGE 9.

It is believed that the practice of the Land Claim Commissioners was the following: – They travelled throughout the country, investigating each claim on the spot. The persons whose names appeared on each Deed as sellers, were examined; and the boundaries of the land were then publicly pointed out. If this was done without opposition, it was assumed that the Community at large assented. The Note itself states, that there were cases where the tribe or hapu did object.

PAGE 10, NOTE 2.

Thinking it not unlikely that the word "Community" would be objected to as novel, I fell back upon the terms ordinarily employed, and used the words "tribe" and "tribal" in the ordinary way, as

opposed to "individual." It would no doubt tend to clearness to use the word "Community" throughout, to indicate the separate societies into which the Maori population is broken up.

PAGE 12, NOTE 2.

The assertion here referred to is made on the authority of the following statement made by Mr Forsaith, (formerly of the Native Department,) in his place in the House of Representatives, on the 9th August, 1860: – "Now it was a well-known fact, that W. King and that section of the Ngati awa tribe whom he represented were never dispossessed by the Waikatos. As a proof of this, he would mention a fact which his honourable friend the Member for the Wallace County would confirm. About the year 1842, Te Pakaru, a Waikato Chief who had taken part in the invasion of Taranaki, proceeded to the Waitara for the purpose of taking possession, and had actually commenced felling timber for the purpose of preparing ground for cultivation. William King, who had not then returned from Waikanae to the home of his fathers, sent a deputation to Te Pakaru, i.e. to warn him off. Te Pakaru, conscious that his position was not tenable, gave up the attempt, and returned to Waikato." (New Zealander, August 15, 1860.)

PAGE 14, NOTE 1.

Sir George Grey opposed for a time the return of William King and his party to the Waitara, seeing the complication that would arise out of such return.

When he found that they were bent upon doing that which they had the clearest right to do, he assented to that which he could not prevent. No doubt he desired to prevent their settling on the South bank of the Waitara. Whether William King made any promise, and if so, what were the circumstances and terms of the promise, I know not.

But it should be remembered that the blame (whatever it may be) of disregarding Governor Grey's wishes is not to be confined to William King. Teira returned with William King and settled also on the South bank.

This Note refers to the Note on page 84. In the latter we find a statement, proceeding from persons who must have been acquainted with the facts, that "W. Kingi being the head Chief of all Waitara, on both sides of it, it was for himself to choose and to say on which side he was to reside."

PAGE 16.

I had heard of such a permission as is here alleged, but the extent or terms of it I did not know, and do not know even now. At every point the same defect makes itself apparent, the lack of a proper investigation of the facts of the case. The point intended to be noticed is this, that William King was driven off land which he was actually occupying at the time.

PAGE 22.

The first sentence of this Note mis-states my proposition under the form of admitting it. The

proposition in the Note is, that the Native cultivators and occupiers of the block could make a title without the consent of the whole tribe. Advantage is taken of the ambiguity of the word "tribe," here, as commonly, used to indicate that Community or Society of which the cultivators and occupiers were members. My real meaning is put out of doubt by the next sentence of the text, in which the Government view is expressed in other words, viz: – "That if Teira's right existed at all, it was of necessity an absolute right," and "that it was the purpose of the Government to disregard all claims but those of the individual holders."

In this Note a passage is set forth which purports to be a part of Governor Fitzroy's speech of 3rd Aug. 1844. It is produced in order to explain away the natural meaning of the words used by himself in his official statement to the Home Government. In fact, the passage set forth is no part of that speech. It is taken from a sort of Leading Article in the Maori Gazette, published at Auckland, 2nd September, 1844. In the same number of the Gazette (pp. 46-47) the speech itself is set forth. Then follows a brief notice of other speakers; then another address without a name, to the absentee owners, urging them to go to the nearest teacher or protector, to register their names and claims to land, so that, if they should not be disposed to sell, and their masters should be walling to manumit them, they might return to their own places.

In page 48 commences the before-mentioned

Leading Article, reviewing and commending the Governor's proceedings at Taranaki, contrasting the English and French modes of Colonization, and ending by enlarging on divers passages of Scripture. From this Article the words cited in the Note are translated. They appear to apply to the Town Block which Governor Fitzroy insisted on retaining, whilst he was content to recal the settlers from other parts of the District. When a block is to be ceded, of course the marking out of individual holdings becomes necessary in order that the payment may be apportioned. But before it comes to this stage of the business, the Community must have already assented to the Cession. The contrast which runs throughout the words of Governor Fitzroy and the comments thereon, is not a contrast between the individual right and that of the Community, but a contrast between the rights of the owners on the spot and those of the absentees.

The source of the whole difficulty which Governor Fitzroy found at Taranaki was this: the persons who were on the spot at the time of the arrival of the New Zealand Company's agent, desiring to secure the presence and protection of the Pakeha, had sold a tract of land without the assent of the absentee owners. This fact furnishes the key to all that Governor Fitzroy said. He expressed his desire to avoid the recurrence of such an evil, and all his suggestions pointed that way.

I have thought it necessary to explain this document, to guard against misconception. But in

fact Governor Fitzroy's remarks did not apply to the Waitara at all. It is admitted that the people of that district had nothing to do with the sale to the New Zealand Company. (T. Q. p. 16.)

The connection of the argument in the text is missed in the Note. It is therefore necessary to re-state it briefly. The letter to William King cited in page 23, and Mr McLean's notice in page 24, both expressed the new principle quite plainly. Mr McLean says "You know that every man has a right (of doing as he pleases) with his portion, and no man may interfere to prevent his exercise of this right as respects his portions, for the thought respecting his own is with himself." These declarations were made to a man, with whom the Government had been long dealing as with one whose consent was necessary to the alienation of land at the Waitara. The new declaration forced him to assert his right in the letter set forth in pp. 29-30, and to state the ground of his right, namely, that the land belonged to the whole Community.

I notice that in the third column in this Note, the beginning only of the above sentence of Mr McLean is given, and the conclusion of the very same sentence (distinguished above by Italics) is omitted.

PAGE 24.

The important subject of the feuds referred to in this Note is reserved for consideration in connection with the Note on page 82.

The ambiguity of the word "tribe" has been

admitted. I did not intend to assert that William King is the Chief of the whole tribe of the Ngati awa. He is certainly, the Chief of that section of the Ngati awa to which the Waitara belongs.

Before leaving this branch of the subject, I subjoin an extract from a speech delivered by Mr Dillon Bell, in the House of Representatives, 3rd August, 1860: – "Towards the end of 1839, Colonel Wakefield (the Company's agent) arrived in New Zealand, and among other, places went to Waikanae, where Wiremu Kingi, even at that time an intelligent and enterprising man, took great interest in the Colonel's proceedings, and accompanied him in the ship Tory on a visit to the Ngati awa Chiefs of Queen Charlotte Sound, to buy land. It was on that occasion that Wiremu Kingi signed the deed of which so much has been said; but for my part I never attached much importance to his signature except as it may be held to bar his individual right. About this time the Ngapuhi and Waikato tribes determined on manumitting their slaves taken in war, and almost simultaneously with the introduction of European Settlers into Taranaki, numbers of the Ngati awa captives returned to their ancient location; while those who belonged to the first migration followed their example, and also began to come up from the South in small detached parties. Wiremu Kingi and his father remained at Waikanae, but according to Maori law were equally entitled to reclaim their old possessions at Taranaki when

they should return. I need not remind the House of the disputes which immediately followed the return of the Ngati awa, in the first years of the settlement, nor how they and the English settlers contested the possession of the soil: still less need I remind them that in 1844 Mr Spain, the Queen's Commissioner for investigating and determining titles to land, held his Court at Taranaki, and decided that the Company was entitled to a grant of 60,000 acres: or that Governor Fitzroy disallowed that decision, on the ground of its setting aside the claims of unreturned captives and absentees. I do not believe that Governor Fitzroy meant absolutely to annul the Company's purchase; I think it is clear he intended that compensation should be given to the absentees as they came in, not that they should have all the land back. But whatever he may have thought, there was never a doubt on my mind that the natives understood his decision practically to be a recognition of their ownership and a giving back of the land." (New Zealander, 8th August, 1860.)

Another circumstance should be noticed. Various points are relied on from time to time in support of the Government case: at one time the Waikato Invasion; at another, the Cession to Governor Hobson; at another, Governor Grey's policy; and so forth. Each of these taken singly, supposing it to have the effect ascribed to it, would set aside Teira's title as much as William King's: yet, in some way or other out of the combination or conflict of all, Teira emerges as "rightful owner," as "undisputed owner,"

whilst the rights of the Community and of the Chief have been lost. The result of this view is that Teira reappears with a title not worse, nor just as good, but far better than it would have been if none of these adverse circumstances had existed. For he is now conceived to possess a power of alienation, even without the consent of the Community to which he belongs.

It was not sufficiently considered how little the arbitrary severance, made by the Government theory, between the rights of the individual holder and those of the Community and the Chief, could be expected to commend itself to the people of the Waitara. The Waikato invasion is the point from which Mr McLean dates the alleged change in the Rules of Tenure at Taranaki, the commencement of the exceptional state of things in that district. If the individual holders were not affected by all that had passed from the Waikato invasion downwards, how could the Community and the Chief regard themselves as deprived of their old rights by those same events?

PAGE 28.

Surely it is not meant that all publications are to be condemned, except those which approve of the course taken by the Government. In a Dependency, it is possible that the policy pursued by the Government of the Dependency may tend to counteract, or even to defeat, the policy of the Imperial Government. If that is deliberately believed to be the case, is every man to be censured who expresses that belief, with due caution and regard to circumstances?

The Debates in the House of Representatives in August, 1860, made it notorious throughout the country that there was a great difference of opinion amongst the Colonists themselves as to the proceedings of the Government. I believe that notoriety to have had a most wholesome effect in checking the spread of the war. The Natives were thereby encouraged to believe that what was done at the Waitara was not the doing, of the Pakeha as a race, and would not be approved by the Queen.

My remarks on the Taranaki Question were put forth in the beginning of December, after hostilities had continued for nine months.

As to the declarations of the Governor referred to in this Note, it is to be remarked that, with the Natives, words weigh little against deeds.

It does not yet appear whether the assurance conveyed to the Bishop of New Zealand respecting the "lawful rights of Chief and Tribe" has ever been circulated amongst the leading Native Chiefs.

PAGES 30, 31, 32.

There can be no doubt as to the duty of a citizen to communicate to the Government information which he may derive from any private source, respecting matters which seriously affect the public interest or public peace. I do not enter into the circumstances here referred to. The reasons for Archdeacon Hadfield's conduct have already been publicly explained by himself.

One thing however should be said. It is a most

unfortunate state of things when a Government allows itself to depend on such sources of information, and omits to take the proper means of obtaining information for itself. And in this particular case, it should in fairness be asked, whether the assertion of right and the expression of determination to hold the Waitara, contained in these letters to Archdeacon Hadfield, had not been already conveyed directly to the Governor by W. King.

There appears to be a misconception as to the object for which these letters are cited. That object is not to prove any specific facts; but to shew the general fact that there were claims, and what was the nature of those claims. By the aid of private documents, the writer gropes his way to some notion of the state of things. He endeavours to ascertain, as well as he can, what the Government ought to have ascertained fully and accurately. Had a proper inquiry been instituted by the Government, the use of all these letters would have been superseded.

The consideration of this object will explain the omission of the letter of July 27. That letter indicates nothing as to the special nature of the claim made by William King; whilst it contains a story about Mr Parris, which I could only regard as unfounded or greatly exaggerated and distorted. At the same time I have had experience enough of rumours in this land, to find no difficulty in believing that such reports had reached William King and had been credited by him.

PAGES 34, 35.

The second letter appears to me to prove nothing

more than that the writer foresaw, what others ought to have foreseen, namely, that the employment of soldiers would end in bloodshed.

A remark towards the end of the Note makes it necessary for me to add, that when these letters came to my hands, the time had long passed when they could have been of any practical use to the Government.

PAGE 42, NOTE 2.

It was never intended to be alleged that William King is the Chief of the whole Ngatiawa tribe. He is certainly the chief of the Community to which the Waitara belongs.

PAGE 44.

What is meant is, that plain issues are raised even upon these documents. Those issues would have been raised more plainly still, if a proper inquiry had been instituted by the Government.

PAGES 47, 48.

No complaint is made against the Land Purchase Department; nor any question raised as to its efficiency, whilst kept within the bounds of its proper functions. If there is no dispute between buyer and seller, there is nothing to decide. What is maintained is this, that when a dispute exists, the decision of the Land Purchase Department (in this particular case the decision of Mr Parris) is not sufficient. It is not sufficient to bind the rights of the Queen's subjects, or to justify the use of military force against the Queen's subjects.

With a view to remove a misconception which seems to prevail at Home, I notice an important statement in this Note, by which it appears that nearly 30,000,000 acres of land have already been acquired for the Crown in this Colony. The British population is estimated at between 60 and 70,000.

PAGE 50, NOTE 2.

It is by no means the case, that "the accusations of not instituting a proper investigation, after all, resolve themselves into the charge that no investigation was made at Waikanae." The case of Waikanae was dwelt on, because it was an admitted fact that no investigation did take place there. The cases of Queen Charlotte's Sound and Wellington were passed over more lightly, for want of information; and that reason was expressly given. It is now clear that the very gravest doubts exist as to the assent of the Natives at Queen Charlotte's Sound. Mr McLean himself, on his examination before the House of Representatives, produced a letter, dated April 10, 1859, written to him by one of those Natives. The letter stated that the names of certain persons had been signed without their authority, and intimated that the transaction, if it went on, would issue in fighting. (See Mr McLean's Evidence, Pap. E. No. 4, page 23.)

PAGE 56.

If any reasonable doubt could remain as to the meaning of the words used by Wi Tako, it would be removed by the following fact.

A short time back, when the excitement arose about the native man found dead near Patu mahoe, some of the people on the Waikato river notified their intention of visiting the spot, and there making inquiry for themselves as to the cause of the death. Ihaka of Pukaki (between Auckland and the Waikato) resisted their interference. In the course of a discussion on this subject, which took place at Pukaki, Ihaka twice used the words "No matou tenei he; the very phrase of Wi Tako. They were taken down at the time by a gentleman thoroughly acquainted with the Maori language. Nothing certainly could be farther from Ihaka's meaning than to charge himself and his people with any wrong or fault in the matter. All that he meant was, that the thing which had gone wrong was their own affair, and that their neighbours ought not to meddle with it.

It is to be regretted that the original words of Paora's speech, referred to in this Note, are not given.

PAGE 59, NOTE 2.

The admission here made of the desirableness of the establishment of some tribunal for settling questions of Native tenure and custom, is so far satisfactory. The difficulties in the way of doing this appear to be over estimated. All would depend on the constitution of the Court, and on the order and course of our proceedings with a view to the establishment of it. For the creation of a Court for determining land questions is not the first point to be aimed at. This subject will be discussed more fully in connection with Note, page 82.

What the reasons were which induced the Legislature of the Colony to agree to the Declaration in Section 8, I do not know. That they had nothing to do with the point here suggested (namely, that the territorial rights of the Natives stand upon Treaty, and therefore that questions between the Government and the Natives belong to the Governor and not to any Court) is shown by the words of the Declaration itself; which apply, not to questions between the Government and the Natives, or between English Colonists and the Natives, but to questions "affecting the Title or right of occupancy of the Aboriginal Natives, as amongst themselves." The point here referred to as to the Treaty and its consequences, will be more fully considered below in reference to Mr Richmond's Memorandum.

As to Lord Carnarvon's Despatch, is it intended to be inferred that, whereas the British Government was not to be expected to support by military force the decisions of the Governor in Council, under the Native Territorial Rights Bill, that Government was to be expected to support by military force the result of Mr Parris' inquiry? His Lordship's Despatch should rather have suggested, that the full and proper investigation, which we claim as due of right to the Native subjects of the Crown, was no less needed for the protection of the English Colonists and of the tax-paying public of England.

PAGE 75.

In this Note it is said that the order of things,

which the Governor disturbed, was the desperate feud then prevailing at New Plymouth.

It should be remembered that there was no feud subsisting between William King and Teira. We learn from Mr Parris that "after this offer for sale Teira associated with William King the same as before, but never let the subject rest." He states also that "they never had recourse to harsh measures after the public offer of the land to His Excellency the Governor, but on the contrary tried to work upon Teira by acts of kindness." (E. No. 3A. p. 2.)

Mr Parris is here speaking of peaceful relations subsisting between William King and Teira before the negotiations for peace between the Taranaki tribes began, that is to say, whilst the feud was still subsisting between William King and other parties. Then came the negotiations which brought the feud to an end. Peace had continued for about half a year when the Governor made the military demonstration at the Waitara.

PAGE 80, NOTE 1.

In this Note it is asserted that "nearly twelve months of patient investigation" were expended on this case. Now Teira's offer was made on the 8th day of March, 1859, and the first instalment was paid on the 29th November, 1859. The whole investigation then lay between those two dates. We are also told that Mr Parris' "inquiry was prolonged till the close of the year 1859; not from any doubt that existed as to the title, but in the hope that the opposing party might be brought to reason." (Pap. E, No. 3, p. 21)

A portion of time then, which we have no means of defining, is to be interposed between the time when all doubt had ceased as to the title, and the 29th of November. Moreover, Mr Parris himself states that his inquiry was intermitted for two months, lest he should interfere with the negotiations for peace then pending between the Tribes. (Pap. E, No. 3A, p. 2.) What portion of the residue was actually employed on this particular business, it is impossible to ascertain, as there are no Minutes of his proceedings.

Yet in the Despatch to His Grace the Duke of Newcastle, dated 28th of June, 1860, it is stated that "nine months were occupied by persons constantly engaged in carefully considering and investigating this particular title." And now we are told that "nearly twelve months of patient investigation" were spent upon it.

I notice this, not because the matter in itself is of great moment; for the value of an investigation depends much more on the nature and method of it than on the length of time employed; but as an instance of a looseness of statement much to be regretted in official documents.

PAGE 80, NOTE 2.

This Note furnishes a remarkable instance of a practical fallacy which pervades these Notes. These so-called "rules" and "decisions" were in fact merely plans of proceeding or schemes of policy. They might be very beneficial, if they could be carried out, but they had no binding effect or authority whatever. To

induce the Natives to yield up tracts of land and accept compensation for them, was in many cases very proper; and Mr Clarke and the officers of his department often had influence enough with the Natives to obtain their assent. But no one was bound by those transactions, except the persons who were actually parties to them.

What is here called Governor Grey's decision was no decision at all in any proper sense. Governor Grey found himself in the midst of those difficulties which followed upon that act of Governor Fitzroy, which has been expressly admitted by the present Governor to have been both just and politic. (Parl. Pap. July, 1860, p. 177.)

Governor Grey did not directly impugn the proceeding of his predecessor, but he felt the practical inconveniences which followed upon it. To escape them, he attempted an intermediate and singular policy. The titles of the returned owners were not to be acknowledged in words by the Government, but their claims were to be bought, if they were disposed to sell, at a rate not exceeding 1s. 6d. an acre.

It is idle to quote this policy of Governor Grey as an authority or precedent for the present proceedings. That policy has been entirely abandoned by the present Governor. The titles of the individual cultivators, which Governor Grey would not directly acknowledge, have been in this very transaction (not to go further back) fully acknowledged by the present Government. Teira and his companions have been recognized as "rightful owners" as "undisputed owners." (E. No. 3,

p. 22.) And as to the price, have the present sellers received no more than 1s. 6d. an acre?

PAGE 82.

This Note opens a subject of the utmost importance, and one which needs a fuller discussion. It is most true that feuds productive of many crimes raged among the tribes in the neighbourhood of New Plymouth, for five years, from August, 1854, till July, 1859, peace being finally made in September, 1859.

Here, and elsewhere in these Notes, it seems to be taken as a consequence of that state of things, that the proceedings of the Government at the Waitara were justified. It is implied that there was something in those proceedings tending to put an end to that state of things: or else, that with a people capable of such crimes, all legal and rational modes of dealing were out of the question. Therefore I do not content myself with saying (what indeed would be a sufficient answer to this Note) namely, that those feuds and crimes and our inability to prevent or punish them, furnish no reason why a full and proper inquiry should not have been made into Teira's title to sell; such an inquiry being demanded at once by justice to the Natives, and by due regard to the interests of our own people in the Colony and in England,

These feuds commenced when Rawiri Waiaua, encouraged by the local Land Purchase Commissioner, attempted to sell a piece of land in violation as it appears, of the tribal right. (T. Q. p. 132.) The result of this was the crime described in page 108.

The Government did not interfere to punish that crime, or to suppress, by military force, the atrocities which followed it. It was apprehended that interference on our part would lead to a war of which the limits, the cost, and the effects, could not be estimated. It was seen also that it would be extremely difficult to prevent our motives from being misunderstood. Many feuds and private wars in different parts of the country had passed without notice. If we interfered in this case, it was likely to be thought that we did so, not so much on account of the crime which Katatore had committed as on account of the land which Rawiri desired to sell. So the Government confined itself to protecting the settlers, and endeavouring by such means as were practicable to check or mitigate those feuds.

The difficulty of the case became still greater when Katatore was murdered. That crime was committed on the Queen's land, on a public road within the settlement. It was a murder of revenge, not directly connected with any piece of land. Still the Government refrained from interfering, beyond issuing a Proclamation in the following month, February, 1858. That Proclamation was not in such general terms as are stated in this Note, that is to say, "warning all the Natives that this anarchy would no longer be tolerated." It only warned them against assembling with arms within the boundaries of a certain district. The Proclamation was accompanied by an official comment in the Maori Messenger, which, after

explaining the reasons of our non-interference, proceeded thus: –

"While indulging this hope, we are startled by the news of another and more frightful murder. – – – Blood is spilt on land which the Queen has granted. This cannot be allowed to pass in silence. The Governor has therefore spoken his word. He still says, 'I shall not interfere. Both parties are doing wrong, but it is not my present intention to employ force against either while they keep outside the limits of the English settlement, but I will allow neither to come armed within these limits, I will not permit fighting in my presence.'" I do not know whether this limited proclamation has been, as is alleged in the Note, 'openly violated.'

The effect of this state of things on the Natives may be gathered from the following letter: –

March 4, 1858, Waitara. 1

To Riwai, Kiripata, Wiremu Tamihana, Apa, Ture, Wiri, Tei, and Hohepa, to you all, Greeting to you. My friends, my fathers, listen. Here we are involved in warfare, that is to say in grievous, murderous, cannibal, bloodthirsty calamity – in this very grievous calamity. Listen. You are probably imagining that we are going blindly to work. It is not so, but we are proceeding on a clear course. What makes it clear is this, that as far as regards the reference to the Governor, that has been done. As for murder, we have no intention of murdering. We leave murder to Ihaia and Nikorima. Our Chiefs will act in broad daylight, and indeed they are acting now in broad daylight. As regards the reference to the Governor, that has been made by the Chiefs. You have already heard that Waitere (Katatore) was killed on the ninth day of the month of January. We had to wait till February for the Governor's answer. The answer came, that the Governor could

take no steps in the matter, but let there be another murder, then the Governor would consent. Hence our Chiefs concluded that the course taken by the Governor was wrong, because, this is Ihaia's second murder. The words of the former Governor are not attended to now, for steps were taken in the case of the quarrel with Rangihaeata at the Hutt – on that occasion, promptly. In the case of this murder no steps are taken. As he was killed in the midst of the settlers, so now should any man belonging to Ihaia be found in the house of a settler in the town he will be killed there, because this is not as it should be. And now all the pas are surrounded, Te Karaka, Pukerito, and Otehetehe. The pa which we attacked was Pukerito, we got close under the outworks. Those of our party who were killed in the attack on the pa, were Hehe Nga nohoanga, Tamati Tuainane, and Te One. These were from Waitara. Tamati Takua from Wai***, Maihi from Tapuirau, Heta from te Kawau. These were killed. Of the people of the place Eruini Mangania, Hakaraia Repo, Te Kawhaki Haenga were wounded. Wi Te One mihi was killed in the fight at Te Ika moana. He was shot by Te Kepa Hanawerangia.

I cannot tell all. Enough.

From RITATONA TE IWA.

It seems that the letter from the Governor, referred to above, has not yet been printed.

Now what view of the Queen's Sovereignty could the Natives acquire under these circumstances? I do not censure the Government, but I ask for a fair consideration of the facts. Instead of throwing the whole blame upon the Natives, let us rather look upon that state of things as the common calamity of both races. Let us not keep back the fact that in the origin of these evils we also had a share, and that they were aggravated by injudicious acts and by violent language on the part of some of our own people. No greater misfortune could have befallen the Natives than to see that the Government was powerless, and so to be driven back into their old

barbarism. It would have been the greatest blessing for both races, if it had been possible from the beginning to follow up and punish every act of bloodshed. The manifest benefit, flowing from the action of the Queen's Sovereignty, would have reconciled the Natives to the action of that Sovereignty in other ways But every consideration which had made it unwise and inexpedient to interfere against crime, made it still more unwise and inexpedient to interfere in a question of land.

The feuds at last wore themselves out and peace was made. A few months after that, the Colonial Government employed military force at the Waitara. The power which had not protected life or property, came forward to take possession of land. What I assert is, that no course could have been more unfortunate than this, no course less likely to effect the great object of establishing practically the Queen's Sovereignty throughout this island. We did not interfere even when we should have been sure of a strong body of allies; when the instinctive sense of justice and retribution for crime would have been in our favour, on the spot and throughout the island. When the feuds and crimes had ceased, we began to employ military force, and that in a case wholly unconnected with crime. So we did all in our power to confirm the evil notion, already widely spread among the Natives, that we care for nothing but to get their land.

We often hear strong language used about what is called a defiance of the Queen's Sovereignty. It were better for both races if we set ourselves dispas-

sionately to consider what we have done towards commending that Sovereignty, towards showing the value and benefit of it. In what light must the case appear to them? The Queen's power has not saved their lives or property, but it takes possession of their land. It appears to them not as a protector but as an invader; not as a stayer of bloodshed, but as itself a shedder of blood. We have taken the course which tends not to advance, but to hinder, our great object. We have begun at the wrong end.

I do not mean to say that the Queen's Sovereignty could be imposed wholly from without, even by a Government regarded with confidence by the Native population. We must act on the principle, which has been of late so often enunciated and so often forgotten, that the Natives are to be governed through themselves; but we can only effect our great object by proceeding in the right order. We must invert the whole course of our proceedings. We must begin by suppressing bloodshed and crime, and so advance to minor matters. The next Native Conference will furnish an opening for our efforts towards securing that great end.

Our present mode of proceeding provokes resistance. Let us proceed in the proper order, and we shall find support in all parts of the country.

We boast of our superiority, and especially of our skill in government. Let us prove our skill, by commending rather than discrediting the object we have in view. The Natives have been repelled from that to which they ought to have been attracted by the strongest sense of their own interest.

Many and very intelligent men amongst them are now drawn towards the King party most unwillingly. They know and say, that the chiefs of that party possess neither the knowledge nor the means needed for elevating their race, and rescuing them from the evils of their present condition. Yet they turn to them as a protection against a power, which they fear and cannot trust.

When the present evils shall have ceased, and confidence shall have been restored by a fair investigation of their grievances, and by an earnest practical effort to provide for them the institutions, and secure the social benefits, they so greatly need and desire, the combination which is now opposed to our authority will disappear like a mist, and the Native race will regard the Sovereignty of the Queen as a boon and a privilege.

1 For this translation I am indebted to the same gentlemen as before.
The Maori text is given below.

REMARKS ON MR RICHMOND'S MEMORANDUM.

REMARKS

ON

Mr RICHMOND'S MEMORANDUM.

PARAGRAPH 6.

In the four propositions here stated as conveying the substance of my remarks, there are some inaccuracies. In the first, Mr Richmond speaks of "the territory of the Ngati awa in Taranaki", and of the right of "the whole tribe"; I have intended all along to speak of the community to which the Waitara belongs and of the communal right. In the second, William King is described as "principal Chief of the Ngati awa"

I regard him, not as chief of the whole tribe, but as chief of the Waitara. In proposition four, it is given as my opinion that the Governor was not justified in taking possession "without the Judgment of a Court of Law." What I maintain is, that the Governor was was not justified in taking possession without the decision of some competent and independent tribunal.

PAR. 9.

The assertions here made cannot be admitted. The quarrel is in its origin and nature a land quarrel. To the Maories, it is not even now a question of Sovereignty in Mr Richmond's sense. I believe there are very few (if any) amongst them, who think it possible

or desirable to overthrow the Queen's Sovereignty and to establish one of their own. To them it is an intensely practical matter. The people of the Waitara resisted because they saw the soldiers take possession of the land. That which draws others into the quarrel is the belief that if the present proceeding of the Government shall succeed, the like will be attempted elsewhere, and they will have no security for their lands or their lives. There can be no clear understanding of the present state of affairs unless we distinguish between two things which are often confounded in official papers, the British Government and the Colonial Government. Even yet the great mass of the Native population is disposed to trust to the justice of the British Government, but I fear there are few who are disposed to trust to the justice of the present Colonial Government.

PAR. 21, 22, 23, 24.

It is here asserted that "Mr Spain's Award was a solemn judicial determination," and also that "Governor Fitzroy had no authority to reverse Mr Spain's determination."

Mr Spain's powers were such as he received under his Commission from Her Majesty and under the "Land Claims Ordinances" of the Colony. It is plain that the Commission by itself could not give him power conclusively to bind persons and lands; the Legislature only could give such power. Now the powers which the Legislature really did give, were only such powers as were requisite for a proper investigation. The

result of the inquiry was to be reported to the Governor. Mr Spain made no such claim for himself as is now made for him. In his Despatch to Governor Fitzroy, 12th June, 1844, he says "I delivered my judgment in the presence of a considerable number of Natives, as well as Europeans; but wherein I have most carefully explained that the same is subject to confirmation by your Excellency, and cannot be carried into effect without your approval." (E. No. 2. p. 8.) Accordingly Governor Fitzroy, acting on the advice of the officer who was then responsible for Native Affairs, refused to confirm it. Respecting Governor Fitzroy's disallowance of Mr Spain's award, it may be well to notice that the present Governor has recorded his opinion in the clearest terms (Desp. Nov. 19, 1855): –

"Mr Commissioner Spain was sent to enquire into these claims, and with certain exceptions declared in favour of the New Zealand Company's purchase. His decision was, however, overruled by Governor Fitzroy, who required all lands to be returned to the Natives, except those in which it could be proved that the whole of the owners had been, or were, willing to sell them.

This just decision, which also proved to be a very politic one, prevented the New Zealand Company from fulfilling its engagements with the Settlers, and caused great dissatisfaction and in some cases distress." (Parl. Pap. July, 1860, p. 177.)

Mr Richmond remarks that my citation in italics (T. Q. p. 14) is not the whole of the sentence: which is quite correct. But it is the whole of that which

concerns the people of the Waitara and the present question. The only claimants with whom Governor Fitzroy had to do, were the persons concerned in the sale of 1840. The people of the Waitara had nothing to do with that sale. (T. Q. p. 16.)

It is also said that "Governor Fitzroy never contemplated and never admitted the assertion of the tribal claim." It is true that nothing is said here about the tribal claim. The reason is, that the question which Governor Fitzroy had to settle, was not a question between individuals and the community, but between residents and absentees.

PAR 24.

Of this so-called Address of Governor Fitzroy I have spoken above (p. 8). The four passages here thrown together, as if they were all parts of that Address, are taken from three distinct documents: the first and second from the Address; the third from the Notice to the Absentees; the fourth from what I have called the Leading Article in the Maori Gazette of 2nd September, 1844.

The drift of the third passage is obscured by Mr Richmond's departure from the translation (itself defective) put forth by the Government in the Appendix to the Memorandum, page 24. The words "men of Taranaki," meaning the absentees, have become "men at Taranaki."

Before leaving this subject of Governor Fitzroy's alleged plans and words, I will state again briefly the fallacy which pervades Mr Richmond's reasoning on this subject.

Governor Fitzroy bad before his mind two classes of people: 1st, those who had been parties to the sale to the New Zealand Company's agent in 1840; and 2ndly, those who had not been parties to that sale. To this latter class belong the people of the Waitara.

As to the former class, he insisted on certain terms. Their act had led the Pakeha to form a settlement. The Governor therefore was not content to abandon that settlement. The Pakeha must retain all that really belonged to the sellers. The absentees should do what they pleased, either keep or sell.

As to the latter class, the Governor recognized their claims in all their integrity. Mr Bell has told us (above p. 12) how the Natives understood that.

The fallacy of Mr Richmond's argument is this, that he treats the terms insisted on in reference to the first class, as being the measure and limit of the rights recognized as belonging to the second class.

PAR. 32.

What is called by Mr Richmond the first Counterproposition, and which is here taken to have been established, runs counter, not to what I have really maintained, but to what I am assumed to have maintained. My proposition as to the rule of Native Tenure is, that the individual holder is a member of a Community, and that the consent of the Community is necessary to the alienation of the land; and that in every purchase it is one of the matters of fact to be ascertained, what the Community is in that particular case. This proposition,

so far from being disproved, is in fact admitted in express terms in Mr Richmond's last paragraph; where Mr McLean is cited as saying "The whole of the purchases previously made at Taranaki had been effected on the same principle as the present one from Te Teira, namely, that of acquiring the land from the different clans and sub-divisions of clans which came in from time to time to offer it." Mr McLean admits the rule; but there is nothing to shew that in this particular case that rule was carried out. There is nothing to shew that the right of the Community was ever investigated at all. Nor is there any way of reconciling the rule so admitted by Mr McLean with the direct and express denial, on the part of the Government, of everything but the individual right, throughout the proceedings at the Waitara.

Here I leave the question of the exception alleged to exist at Taranaki and the novel assertions that have been made on the subject since the proceedings at the Waitara. Those assertions have been directly denied by a number of members of the Ngati awa. In reference to Mr McLean's statements before the House of Representatives, (Q. 58, 59,) they say "We, of this Ngati awa, now hear for the first time of those modes of proceeding;" – "we have never heard of this custom all these years. We now hear of it for the first time in this answer." (New Zealand Spectator, Jan. 2, 1861.) See above, p. 5.

I now notice the stages by which men have advanced to the new theory.

In 1853, Mr Charles Brown, one of the oldest

settlers in the Province of Taranaki, was elected Superintendent, the first under the Constitution Act. Whilst, a candidate for the office, he put forward his views on the Land question, in the following words: – "I look forward with hope that the time is not far distant, when the Government will buy no land and have none to sell, and that its office will then be confined to extinguishing the collective titles of tribes, and giving individual titles, available for sale." (Taranaki Herald, 18 May, 1853.)

In accordance with this view, Mr Superintendent Brown addressed to the Colonial Secretary the following letter, dated 6th March, 1854: –

"Sir, – A recent purchase having been effected by Mr Commissioner McLean of a tract of land in this Province, I beg to draw the attention of his Excellency the Officer administering the Government, to the peculiar features of this purchase, as bearing in the most important manner on the relations of the two races.

Mr McLean did me the honour to request my opinion on the offer of the land in question, at what he considered a high price, and in which it was proposed to exclude all but a few pah reserves, securing to the Natives the pre-emptive right of purchase of 2000 acres at 10s. per acre, each Native to purchase separately and possess a separate Crown Title for his property.

As an opportunity of introducing a principle so beneficial to the Native race, breaking up the common rights which cripple their individual energies, and giving them separate rights with Crown Titles, might not occur for a long time, I expressed the opinion which I hope will meet with the approval of his Excellency, that the introduction of such a principle was worth attaining at any cost, whether as regarded the Province individually, or its benefit, as an illustration to the whole Native race. I have no hesitation in anticipating that the adoption of the principle by any Native tribe, will convert the members of it into settlers and citizens fully as valuable as the European population." (Southern Cross, Nov. 2, 1860.)

In another letter to the Colonial Secretary, dated 26th September, 1860, Mr Brown stated that the plan proposed in 1854 had been carried out, and that "the owners of these individual holdings are the most loyal, peaceable, and industrious Natives in the Province, as well as the best neighbours the settlers in the district could wish for." It will be seen that Mr Brown had no notion of any difference, as to the communal right, between Taranaki and other parts of the island.

Thus Mr Brown sought to effect a good object by fair and reasonable means. This was the first stage.

The second stage was when the Provincial Council at Taranaki presented their Memorial to both Houses of Assembly in 1858, urging "that the Government should compel an equitable division of such common land among the respective claimants, on the petition of a certain proportion of them." The third stage was when the Government, instead of seeking to remove by proper means the difficulty presented by the communal right, assumed it to have been removed, and denied or ignored every right except that of the individual holder.

PAR. 38.

As to the assertions in the former part of this Paragraph, I leave them to be judged of according to the evidence. As to the last assertion, the explanation is given in the text, p. 4, Par. 4.

PAR 40 TO 67.

In conformity with the principles stated in the outset, I refrain from entering minutely into these

paragraphs relating to the "points in dispute" between the Government and the Native claimants. They contain many statements which I believe to be incorrect, to be supported by very infirm evidence, and to be capable of being impugned by better evidence, but I avoid raising minor and immaterial issues which, after all, we are not in a position to decide. Our complaint and grievance is this: that these points cannot be ascertained until the Government shall do in the end, what it ought to have done in the beginning, that is to say, institute a proper inquiry into the facts of the case.

PAR. 70, 71.

Every one knows with how much caution it is necessary to regard statements made after the fact by persons concerned in justifying what has been done. The statements here cited from Mr McLean are no exception to the general rule. I do not wish to examine them narrowly. I only ask that the strong assertions here made be compared with the evidence set forth in my text. Beyond this I confine myself to three particular points: 1st, Mr McLean here justifies the proceedings of Mr Parris in the most unqualified language, in the face of the fact that Mr Parris had not obeyed the express instructions of Mr McLean himself, which required him to visit the absentee claimants personally: 2nd, the numerous and frivolous claims made by persons who seek to share in the purchase money – which claims are themselves the product and effect of the secret system of land

purchasing – are urged as reasons against the employment of that open and legitimate mode of inquiry, which would prevent or destroy them: 3rd, the grave doubts affecting the transaction at Queen Charlotte's Sound are passed over without notice.

PAR. 73 TO 83.

Here on the subject of the "Investigation," the same course is taken by Mr Richmond as before, with reference to the "Points in dispute." Scraps and fragments of doubtful assertions and unsifted evidence are produced by Mr Richmond, and we are asked to accept them as a substitute for that proper inquiry which was demanded by every consideration of justice and expediency. Unproved allegations and uncertain inferences cannot be allowed to take its place. The defect of inquiry can only be supplied by a proper inquiry hereafter. The web, which Mr Richmond has woven, is too weak to bear the weight of a civil war.

One passage only I think it necessary to notice: It is as follows (Par. 82); "Where unrepresented claimants are known, or believed, to exist, the Government makes inquiry on the spot; as was done in the present case at Queen Charlotte's Sound, and at Wellington. But where (as in the case of the Waikanae Natives) there is no reason to believe in the existence of valid claims, no local investigation is instituted. The Waikanae claimants (for whom the Rev. Riwai te Ahu acts as Secretary) ought to have come forward. They admit that they were aware of the negotiation at the time when the first instalment was paid in November, 1859."

On the contrary, there was very good reason to believe in the existence of valid claims at Waikanae. It was notorious that people closely connected with the Waitara were still at Waikanae. At a distance of 200 miles, they received no notice at all from the Commissioner of his proceedings. They hear of them for the first time, when the inquiry was concluded and the first instalment paid. This mode of dealing with absent owners is now justified; a Native Minister regards it as sufficient. If this be sufficient, what can be insufficient? Do we shew our superiority and our civilization by this contemptuous disregard of common justice?

PAR. 98.

Here is the main proposition on which Mr Richmond relies: "In law, as well as in fact, their territorial rights and obligations are not subject to the interpretation of our Courts. These rights stand upon Treaty, of which the Crown itself is, rightfully, the sole interpreter." The practical consequence is drawn in Par. 121: "If the Governor had jurisdiction, he was justified in asserting it in the only practicable mode, viz., by force; in other words the Governor being of right sole judge of questions respecting Native Territorial rights, was justified in enforcing his jurisdiction in the only practicable mode, viz., by military occupation."

I have argued that the people of the Waitara, being subjects of the Crown, have not been dealt with as subjects of the Crown. Mr Richmond answers by saying, they are not subjects of the Crown; they have had all they are entitled to.

The fallacy of Mr Richmond's argument is obvious. A Treaty in the ordinary sense is a compact between two independent nations, independent before the Treaty was made, and independent after it was made. Such a Treaty is not within the jurisdiction of the Courts of either nation. For an independent nation cannot be bound by the decision of the Courts of another nation. Disputes therefore between independent nations, respecting the meaning of a Treaty, must be decided by force or by arbitration. Of late even Sovereign powers have inclined to the latter mode. But the Treaty of Waitangi is of a different kind. The parties thereto were independent before, but not after. It is an express article of the Treaty that one party shall thereby become subject to the other; that the Maories shall become subject to the Queen, and shall receive the protection due to subjects. "Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection, and imparts to them all the rights and privileges of British Subjects."

It may not be easy to find an exact counterpart to the Treaty of Waitangi: but there is a considerable analogy between it and the Charters and other instruments, by which Princes at various times have granted rights and franchises to their people. Whether the rights of the subject have been, as in Europe for the most part, doled out by Charters wrung from unwilling hands, or given freely and at once, as in this case, makes no difference as to the nature and effect of the compact: the only difference is one of degree, and not

of kind. Now in such cases it has not been left to the Prince to put his own construction upon the Charter; but the franchises of the people have been expounded and maintained by tribunals independent of the Prince.

It is not meant, that the whole complex body of English Law was at once to be applied to the Natives; but it is meant, that the plain and fundamental principles of English Law became applicable at once; that the Natives became at once entitled to the essential rights of British subjects. Amongst those rights surely are the following: – that life shall not be taken without a fair trial; that land shall not be taken without a fair trial. "The rights and privileges of British subjects" must mean at any rate the opposite to despotism. The proceedings of the Government at the Waitara were pure despotism.

Mr Richmond has entirely overlooked the consequences of his theory; namely, that if the Treaty of Waitangi be (as his argument assumes it to be) a Treaty in the ordinary sense, then the right of interpreting and enforcing the Treaty must belong not to one party, but to both equally; that the Natives are at liberty to resort to force in support of their view, as much as the Governor in support of his; and that they cannot be charged with rebellion, if they do so.

However little the theoretical value of Mr Richmond's doctrine may be, it is a significant and remarkable fact that such a doctrine is put forth. It is remarkable as bearing on the position, which I have maintained, that the Natives at the Waitara, being

British subjects, have not been treated as British subjects. Had it been possible to shew that they have been treated as British subjects, Mr Richmond would hardly have had recourse to a doctrine which denies them to be British subjects at all, which repudiates the assurances given by word and deed in a vast variety of ways during twenty years, and which puts the Natives in the same position in which they would have stood, had the Treaty never been made. It should be noticed also, what that is which is now clothed with the name and dignity of "the Crown." "The Crown itself (says Mr Richmond) is the sole interpreter of the Treaty." (Par. 98.) It might be inferred then to be the duty of the Governor to provide for the Crown the means of interpreting, to ascertain all the facts, to submit them to the Home Government, and to act upon their decision. But Mr Richmond requires nothing of the kind. In Par. 121 he applies the general principle to the particular case of the Waitara, and attempts thereby to justify the proceedings of the Government in this particular question. This enables us to understand what Mr Richmond means, when he says that the Crown is the sole interpreter of the Treaty. The Crown then, in Mr Richmond's sense, does not mean the Queen or the Government of England. They had never authorized, they did not understand, they had no means of understanding, what the Colonial Government was doing at the Waitara. That which Mr Richmond calls by the name of "the Crown" is in fact the Governor of the Colony, acting in a matter vitally

concerning the interests of the Natives and the honour of the Crown, without any special authority or instruction from the Crown, with the concurrence and on the advice of persons who represent neither the Natives nor the Crown. Let us reduce the general proposition a little further. The Governor judging in this particular case is simply and in fact Mr Parris. The largeness of the general proposition narrows itself down practically to these dimensions. The majesty of the Royal word and the largeness of the national undertaking issue in the decision of an Assistant Land Purchase Commissioner.

In May, 1857, the present Ministers recorded their opinion on the policy to be pursued in Native matters: they said "As to the ultimate end to which the British Government in these Islands is bound to shape its Native policy, there can be no difference of opinion. Successive Governors have promised, in the name of the British Crown, that the Colonists and the Maories should form but one people, under one equal law; and no effort must be spared to redeem this pledge." (T. Q. p. l00.) In December, 1860, a theory is boldly put forward by one of those Ministers which, if England were capable of adopting it, would render the fulfilment of those promises absolutely and for ever impossible: a theory according to which the Native population must submit to be aliens on their own soil; to bear the pressure of our dominion, but not to receive the protection of the Law or the privileges of English subjects. Thus, whilst professing to aim at raising and preserving this race, and bringing them

into a peaceful union with ourselves, we uphold and prescribe a course of action which must provoke them to the most determined resistance to our authority, and can only end in the failure of our undertaking, in discredit to ourselves, and in ruin to them.

PAR. 100.

I agree with Mr Richmond that "at the present moment the desideratum is to bring the Maories within the pale of the law." My complaint is, that the Colonial Government have so proceeded as to render the object more difficult of attainment than it was before. (See above, pp. 26-27.)

PAR 103.

The Land Claims Courts were not cited by me "as instances of the satisfactory working of a jurisdiction over Native Territorial Rights." They have no such jurisdiction. They were referred to as shewing that the Colonial Legislature had again and again created Courts of Inquiry possessing powers and means for ascertaining facts, which Mr Parris did not possess.

PAR. 107, TO 110.

In these paragraphs Mr Richmond dwells on the difficulty of bringing dishonest or contumacious debtors of the Native race within the reach of our Civil Courts. The existence of such a class of persons furnishes no evidence against the disposition of the large majority to obey law. Few nations would be content to have defendants in actions of debt set up as their "representative men." Amongst the Maories, as elsewhere, the

general character of the people may be more fairly estimated from the large majority who fulfil their contracts without legal compulsion than from the minority, against whom the process of the Courts is resorted to.

PAR. 138.

I have asserted that the persons invited to the Kohimarama Conference were, with few exceptions, such as were known to be friendly to the Government. When Mr Dillon Bell urged in the House of Representatives (August 17, 1860), the necessity of carefully considering the nature and constitution of the Conference proposed for 1861, he said that the Conference just held could not be regarded as of a representative character, for only those chiefs had been invited who were known to be friendly. No member questioned that statement. Mr Richmond said it would be the object of the Government to give to the next Conference as much of a representative character as possible.

Though I cite Mr Bell as asserting the same thing, my knowledge of the fact is derived from, independent sources.

PAR. 141.

The purpose of the last 50 pages of the pamphlet was not solely, as Mr Richmond suggests, "to enforce the necessity of a just and honest policy." The chief purpose was to shew, what have been the fruits of the existing mode of managing Native Affairs. Nominally, Native Affairs are committed to a Governor responsible to the Crown. But, in fact, the Governor possesses no substantial power, and cannot obtain such power

except upon such terms as may be imposed by persons, who represent neither the Crown nor the Natives. He may propose plans, but he can do little beyond that. There is under existing circumstances no security for the establishment of any complete and consistent plan for solving the Native difficulty, much less for steadily carrying out such apian for a reasonable length of time.

The last Session has shewn us, that there are among the Colonists men capable of taking a just and comprehensive view of the relations of the two races. But thought and labour were stimulated by the war. The same amount of interest and exertion cannot be expected under ordinary circumstances.

My purpose was to shew that the existing system of management has issued in alternate fits of neglect and of intimidation, of non-government and of misgovernment; and thereby to suggest that the same mode of management, if continued, will only lead to a recurrence of the same deplorable results.

[Original Text of Letter and Addendum]

Original Text of the letter cited above, p. 25.

Maehe 4, 1858. Waitara.

E Riwai, e Kiripata, e Wiremu Tamihana, e Apa, e Ture, e Wiri, e Tei, e Hohepa; e koutou katoa, tena ra koutou katoa, e aku hoa, e aku papa. Whakarongo mai. Tenei matou kei runga i te pakanga, ara, i te mate kino, i te mate kohuru, i te mate i otaina i ngaua, i te mate inumia nga toto, i tenei mate kino noa iho. Whakarongo mai, tena pea koutou te ki mai na, tenei te mahia nei i runga i te pohehe, kaore, kei te mahia i runga i te marama. Ko te marama ra tenei, ko te mahi ki te Kawana, kua oti; ko te mahi kohuru kaore i whakaaroa me kohuru. Erangi ma Ihaia ma Nikorima te kohuru, ma nga rangatira o maua me awatea. Koia tenei e mahia nei i te awatea. Ko te mahi ki a te Kawana i mahia ano e nga rangatira.Kua rongo mai iana koutou ki te marama i mate ai a te Waitere, ko Hanuere i te 9 o nga ra tae noa ki a Pepuere e tatari ana ki te kupu a te Kawana. Ko te taenga mai o tana kupu, kaore he tikanga a te Kawana, engari kia kotahi ake kohuru i toe, hei reira ka whakaae ai a te Kawana. No konei ka whakaaro nga rangatira o maua, ka he nga tikanga a te Kawana, no te mea ka rua nga kohuru a Ihaia. Ko nga kupu a te Kawana o mua, inaianei kaore e whakarangona ana kupu. Ina hoki, he tikanga ano i te whawhai ki a te Rangihaeata i Heretaunga, i hohoro i reira: i tenei kohuru kaore he tikanga. No te mea i patua ki waenga nui o nga Pakeha, ko tenei ka kitea ki roto i te whare Pakeha i te taone tetehi tangata o Ihaia ka patua ano ki roto, no te mea kua he. Ko tenei kua karapotia katoatia nga pa, a te Karaka a Pukerito a Otetehe. Ko te pa i whakaekea e mauako Pukerito, taea rawatia a raro iho o te pekerangi. Ko o maua i mate i te whakaekenga o te pa, ko Hehe Nga nohoanga, ko Tamati Tuainane, ko te One, no Waitara enei; ko Tamati Takua no Wai***, ko Maihi no Tapuirau, ko Heta no te Kawau, i mate rawa enei. No te tangata whenua, ko Eruini Manganui, ko Hakaraia Repo, ko te Kawhaki Haenga, nga mea i tu ora. Ko Wi Te Onemihi, no te parekura i te Ika moana ia i mate ai. Na te Kepa Hana Werangia i pupuhi.

Ekore e taea te korero atu. He oti.

Na RITATONA TE IWA.

ADDENDUM.

Mr McLean has stated the result of his own experience as to the Communal right in the following terms: – "I do not think it practicable to give Crown grants to natives by defining the boundaries of individual rights to land; it would be productive of quarrels and disputes, as there is really no such thing as individual title that is not entangled with the general interests of the tribe, and often with the claims of other tribes, who may have migrated from the locality.

"I have tried this system at the suggestion of the Bishop, at Taranaki. It gave me considerable insight into the state of native tenure; but, in endeavouring to carry it out, I found it took about 30 days to define the boundaries of the claims of 40 individuals over an extent of 40 acres; and even then they regarded the arrangement as altogether imaginary, and it did not appear to affect, in the estimation of the natives, the general or tribal right. When I considered the title settled of some individuals on this basis, I found the natives quarrelled amongst themselves about the boundaries, and prevented any definite arrangement being carried out until I afterwards purchased the whole of the tribal claim in order to secure a clear title.

"I wish every native could get a Crown grant; it would be the means of dissipating many jealousies, and breaking up their confederacies.... It is absolutely necessary that the tribal claim to such land should first be perfectly obliterated by previous sale to the Government." (Parl. Papers, July, 1860, pp. 303, 304.)

These statements (which agree perfectly with those of Mr Superintendent Brown, cited above, p. 36,) should be contrasted with those which were put forth by Mr McLean in the Notice to the Chiefs of Waitara, 18th March, 1859. (T. Q. p. 24.)

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