1847 - Selwyn, G. England and the New Zealanders, Part I - I. Proof that Earl Grey's instructions involve a breach of the National Faith of Britain, p 1-18

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  1847 - Selwyn, G. England and the New Zealanders, Part I - I. Proof that Earl Grey's instructions involve a breach of the National Faith of Britain, p 1-18
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I. Proof that Earl.Grey's instructions involve a breach of the National Faith of Britain.

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I. Proof that Earl.Grey's instructions involve a breach of the National Faith of Britain.

1. The circumstances under which our connection with New Zealand commenced are clearly stated in the following words of Sir Robert Peel. 1

"In 1834 there had been a strong feeling on the part of the public of this Country, that England was chargeable with injustice in its treatment of the Aborigines. -- Sir Fowell Buxton moved in 1834, in this house, an address to the Crown to this effect: "That deeply impressed with the duty of acting on the principles of justice and humanity with the Native Inhabitants of British Colonial Settlements, we call upon the Crown to adopt different principles from those which have been heretofore acted upon in some of our Colonial Establishments."

"In 1836, a Select Committee was appointed at the instance of the same Sir Fowell Buxton; evidence was taken in that year, and a Report was made in 1837--a most full and able document--detailing the result of our relations with the natives in some of our Colonial Settlements, which made a deep impression on the Country. This is one of their observations, "It may be presumed that the Native Inhabitants of any land have an incontrovertible right to their own soil--a sacred right, which however, appears not to have been understood by this Country." 2

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"That Report was made in 1837, and iu 1839 arose the question whether we should form new relations with New Zealand. The Marquis of Normanby was acting under the influence of the recommendations contained in that Report."

"The first Despatch which Lord Normanby wrote, referred expressly to the Report of your Select Committee and your adoption of the principles of that Report, which had made a deep impression on the public mind, with regard to the relations you should establish with the Aboriginal Natives of any Country in which you might form a Settlement. You agreed to the address praying the Crown to protect the rights of the Aborigines; You are responsible for the appointment of these Committees; and you are responsible for the doctrines laid down in their Reports, for you adopted them."

"Lord Normanby says: "The ministers of the Crown have deferred to the advice of the Committee appointed by the House of Commons, in the year 1836, to inquire into the state of the Aborigines residing in the vicinity of our Colonial Settlements; and have concurred with that Committee in thinking that the increase of national wealth and power, promised by the acquisition of New Zealand, would be a most inadequate compensation for the injury that must be inflicted on this kingdom itself by embarking in a measure essentially unjust, and but too certainly fraught with calamity to a numerous and inoffensive people, whose title to the soil and sovereignty of New Zealand is indisputable, and has been solemnly recognized by the British Government." 3 The Report of the Commitee had said that the right of the Natives to their Country is incontrovertible, and Lord Normanby, in establishing his relations with New Zealand, refers to the Report of the Committee and states that the right of the people of New

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Zealand to the soil and sovereignty of the Islands is indisputable.

"Then you acknowledged New Zealand as a Sovereign and Independent State. Now I think that you were wrong in doing so.--These however are the engagements which we formed, and by which we must be bound."

"Look at the instructions that were given in 1839 to Captain Hobson. 4 "The Queen in common with her Majesty's predecessor disclaims for herself every pretence to seize on the Islands, or to govern them as a part of the dominions of Great Britain, unless the free and intelligent consent of the Natives expressed according to their established usages be obtained. Her Majesty's Government authorize you to treat with the Aborigines for the whole or any part of those Islands, which they may be willing to place under Her dominion." Lord Normanby writes, "The Natives may probably regard with distrust a proposal which may carry on the face of it the appearance of humiliation on their side and of a formidable encroachment on ours.--These however are impediments to be gradually overcome by the exercise, on your part, of mildness, justice and perfect sincerity in your intercourse with them. You will, I trust, find powerful auxiliaries among the Missionaries who have won and deserved their confidence." Lord Normanby went on to say, 5 "Having by these methods obviated the danger of the acquisition of large tracts of Country by mere land-jobbers, it will be your duty to obtain, by fair and equal contracts with the Natives, the cession to the Crown of such Waste Lands as may be progressively required for the occupation of Settlers resorting to NewZealand."

There is then no claim here on the part of the Crown to

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possession of the territory in consequence of sovereignty.

"But Captain Hobson is not merely directed to treat with the Natives, according as the wants of the settlers might arise, for lands not actually enjoyed or occupied by them, but for the waste Lands of the Islands, with the express admission that those lands were of no value to the natives; for Lord Nor-manby proceeds: 6 "To the Natives or their Chiefs much of the land of the Country is of no actual use, and in their hands it possesses scarcely any exchangeable value." Is it not clear then that Lord Normanby's Instructions to Captain Hobson were to take the lands, not by any prerogative of the Crown, but by cession from the Natives. You must hear the qualifications and reserves under which the Natives of New Zealand entered into this engagement. Observe what the treaty was that was framed under these Instructions to Captain Hobson:

"Captain Hobson reports to the Authorities at home that in pursuance of Lis instructions he summoned the Native Chiefs. --He goes on to say: "When I had finished reading the Treaty, I invited the Chiefs to ask explanations on any points they did not comprehend, and to make any observations or remarks on it they pleased. Twenty or thirty Chiefs addressed the meeting, five or six of whom opposed me with great violence, and at one period with such effect, and so cleverly, that I began to apprehend an unfavorable impression would be produced. Rewa, while addressing me, turned to the Chiefs, and said, "Send the man away--do not sign the paper: if you do, you will be reduced to the condition of slaves, and be obliged to break stones for the roads. Your land will be taken from you,and your dignity as Chiefs will be destroyed."

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"That was the language of the opposing chief. At the first pause Nene came forward and spoke with a degree of natural eloquence that surprised all the Europeans, and evidently turned aside the temporary feeling that had been created against us. He first addressed his companions. "Reflect," he said "on your condition, how much you have been exalted by European intercourse. How impossible it was for you to govern without frequent wars and bloodshed;" and he concluded by saying "they should receive us, and place confidence in our principles."

"This, remember, is a dry official report."

"You must," he continued, "be our father. You must not allow us to become slaves." "You must preserve our customs, and never permit our lands to be taken from us."-- Can you resist such an appeal to your equity and honour? Do not hastily renounce that character for honour and good faith to which this Native Chief appealed in his eloquent address.

"He said to the surrounding audience, "Rely on British honour;" and to the British Representative, "You must be our father--take care our lands are not seized on against our will"--

"One or two other Chiefs who were favorable followed him in the same strain.--The consequence was that the Treaty was signed. These were the circumstances under which this inconvenient Treaty was made; and I ask, will you commence your relations with the Colony by an abandonment of the obligations you have entered into?"

So far was the Colonization of New Zealand from being undertaken by the British Government for any purpose of territorial aggrandizement or of providing waste lands for the people of Great Britain, that Lord Normanby in the same despatch,

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declares, 7 "It can no longer be doubted that an extensive settlement of British subjects will be rapidly established in New Zealand, and that, unless protected and restrained by necessary laws and institutions, they will repeat unchecked, in that quarter of the globe, the same process of war and spoliation, under which uncivilized tribes have almost invariably disappeared, as often as they have been brought into the immediate vicinity of emigrants from the nations of Christendom. To mitigate, and if possible, to avert these disasters, and to rescue the emigrants themselves from the evils of a lawless state of society, it has been resolved to adopt the most effective measures for establishing among them a settled form of civil government. To accomplish this design is the principal object of your mission."

And so far was it from being intended to seize any portion of the lands of New Zealand, that Captain Hobson was further instructed by Lord Normanby, as follows, 8 "All dealings with the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith, as must govern your transactions with them for the recognition of Her Majesty's Sovereignty in the Islands. Nor is this all. they must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory, the retention of which by them would be essential or highly conducive to their own comfort, safety, or subsistence. The acquisition of land by the Crown for the future settlement of British subjects must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves."

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Lord Normanby's successor in office, Lord John Russell, in a Despatch of July 17th. 1840, 9 to Sir George Gipps, after acknowledging the receipt of papers including Captain Hobson's report of his proceedings at Waitangi, says. "Her Majesty's Government, entirely approve of the measures which you adopted, and of the manner in which they were caried into effect by Captain Hobson." And afterwards, in his Despatch of December 9th. 1840, 10 speaking of the New Zealanders, he says "They have keen formally recognized by Great Britain as an Independent Slate; and even in assuming the dominion of the Country this principle, was acknowledged, for it is on the deliberate act and cessiou of the Chiefs, on behalf of the people at large, that our title rests."

The Royal Instructions to Governor Hobson, 11 on this point run thus:

"And it is our further will and pleasure--that you do especially take care to protect them, (that is, 'the native inhabitants of our said Colony, or of the lands and islands thereto adjoining,') in their persons and in the free enjoyment of their possessions, and that you do by all lawful means prevent and restrain all violence and injustice which may in any manner be practised or attempted against them."

And shortly afterwards the same Minister in a Despatch dated January 23th. 1841, 12 states: "Her Majesty, in the Royal Instructions under the sign manual, has distinctly established the general principle that the territorial rights of the natives, as owners of the soil, must be recognized and respected; and that no purchases hereafter to be made shall be valid, unless such purchases be effected by the Governor of the Co-

Parl. Pap. May, 1847. p. 27.

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lony on her Majesty's behalf.--The Surveyor General should be required from time to time, to report what particular tract of land it would be desirable that the natives should permanently retain for their own use and occupation. Those reports should be referred to the protector of Aborigines; and the lands indicated in them, or pointed out by the protector as essential to the well-being of the natives, should be regarded as inalienable even in favour of the local Government."

Does not this imply, that the lands not essential to the well-being of the natives were to be at their own disposal?

In the preceding month, the Under Secretary, Mr. R. V. Smith had, in a letter to Mr. Somes, dated December 2nd. 1840, thus stated the general principle by which the Crown proposed to be guided in its measures for the Government and Colonization of New Zealand:

"With regard to all lands in the Colony acquired under any other title than that of Grants made in the name of, and on behalf of, Her Majesty, it is proposed that the titles of the Claimants should be subject to the investigation of a Commission to be constituted for that purpose; the basis of that inquiry will be, the assertion on behalf of the Crown of a title to all lands situate in New Zealand, which have heretofore been granted by the Chiefs of those Islands according to the customs of the Country and in return for some adequate consideration."

It is to be remembered that Captain Hobson was sent to New Zealand not as Lieutenant Governor, but as her "Majesty's Consul at New Zealand. 13

The New Zealand Company having, in November 1842, attempted to disparage the weight and authority of Lord

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Normanby's Despatch, that Document and the proceedings taken under it wire recognized and affirmed by the succeeding Government and by a third Colonial Minister. Mr. Under Secretary Hope says (10th January 1843,) 14 "Lord Stanley has received this intimation with extreme astonishment. The letter to which reference is made had been presented to Parliament and printed in the Session immediately preceding the date of the agreement with the New Zealand Company. In that letter Her Majesty distinctly recognized the proprietorship of the Soil in the Natives, and disclaimed alike all territorial rights and all claims of sovereignty which should not be founded on a free cession by them. Lord Stanley cannot allow the Company to plead ignorance of a document thus formally and authoritatively communicated to the public; or permit them to assume that in entering into the arrangement with them, Her Majesty could contemplate deliberately violating the faith which she had publicly pledged to the natives, in conveying to the Company rights which, on the part of the Crown, She had solemnly disclaimed."

The New Zealand Company also professed to doubt the validity of the Treaty, as being made, (as they alleged) "with naked savages," and suggested, that "it might be treated by lawyers as a praiseworthy device for amusing or pacifying savages for the moment." This attempt had only the effect of eliciting from Lord Stanley his confirmation of the Treaty. Mr. Hope, writing to the Company, 1st. February 1843, 15 says "Lord Stanley is not prepared, as Her Majesty's Secretary of State, to join with the Company in setting aside the treaty of Waitangi, after obtaining the advantages guaranteed by it, even "though it might be made with naked savages, or though

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it might be treated by lawyers as a praiseworthy device for amusing or pacifying savages for the moment." Lord Stanley entertains a different view of the obligations contracted by the Crown of England; and his final answer must be that, as long as he has the honor of serving the Crown, he will not admit that any person or any Government, acting in the name of Her Majesty, can contract a legal, moral, or honorary obligation to despoil others of their lawful or equitable rights."

And Sir Robert Peel in the New Zealand Debate of June 1845, 16 referring to the suggestion made by the New Zealand Company, said "I believe there are a good many lawyers in the New Zealand Company, and this may be the language of lawyers.--But what was the language of statesmen."

After citing Lord John Russell's Despatch abovementioned. Sir R. Peel proceeded to say, "That was the language held by statesmen. That Treaty was entered into with as much formality as their usages permitted; and are you now prepared because you find the engagements onerous and inconvenient--inconvenient to yourselves but injurious to the Natives even--are you prepared to disclaim and repudiate the act of Statesmen, and to concur with the lawyers, that the Treaty is a mere praiseworthy device for amusing and pacifying savages?" 17 "I ask, will you commence your relations with the Colony by an abandonment of the obligations you have entered into? I will say, if ever there was a case where the stronger party was obliged by its position to respect the demands of the weaker, if ever a powerful country was bound bv its engagements with a weaker, it was the engagement contracted under such circumstances with the Native Chiefs."

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Lord Stanley writing to Lieutenant-Governor Grey, June 13. 1845, says, "I repudiate with the utmost possible earnestness the doctrine maintained by some, that the Treaties which we have entered into with these people are to be considered as a mere blind to amuse and deceive ignorant savages. In the name of the Queen I utterly deny, that any Treaty entered into and ratified by her Majesty's Command, was or could have been made in a spirit thus disingenuous, or for a purpose thus unworthy. You will honorably and scrupulously fulfil the conditions of the Treaty of Wnitangi." 18

Governor Grey, in a Despatch dated Bay of Islands, 24th. November, 1845 [?], 19 says, "I have agreed to receive upon Thursday next, the 28th. instant, a deputation of the principal chiefs, who are anxious to address me upon the subject of their lands, and upon the state of affairs generally. I shall not hesitate at once to relieve their apprehensions regarding their lands by assuring them that her Majesty has directed me scrupulously and honourably to fulfil the conditions of the Treaty of Waitangi.

On the 10th. December, 1845, Governor Grey transmitted home copies of an Address which he made to a number of the northern chiefs upon Friday the 28th. November. The address begins thus, 20 "Friends, Chiefs of New Zealand, the Queen has heard of the difficulties in which New Zealand is involved, and has therefore sent me here for the purpose of settling them. With a view to the arrangement of these difficulties, I have already instituted inquiries into the state of this country, and I shall continue to make these inquiries, and to ascertain the disposition of each tribe, and whether or no they have assisted the Government in putting down those who en-

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gaged in prosecuting the present disturbances.--In the mean time, I assure the whole of the Chiefs, that it is the intention of the Government, most punctually and scrupulously to fulfil the terms and promises of the treaty which was signed at Waitangi on the arrival of Governor Hobson. I have heard that some persons, evil disposed both towards the Queen of England and the Chiefs of this Country, have told you that by your signing that paper you lost your lands. This I deny. By that Treaty you have the protection of the Queen, and your possessions are made sure to you. Your lands shall certainly not be taken from you without your own consent. You can sell your lands to the Queen or not sell them, just as you think proper; but remember that, when once you do sell them, they must be promptly given up."

In a Despatch of 10th. December, 1845, 21 Governor Grey writes "I think it only necessary to add in reference to the natives, that I have in the most public manner, in the strongest terms, and upon repeated occasions, assured them that I had been instructed by Her Majesty, most honourably and scrupulously to fulfil the terms of the Treaty of Waitangi; that their welfare and happiness was an object of the most lively concern to the Queen, and that it would be my most earnest desire to carry out her Majesty's most gracious wishes in their favour; and I am satisfied that these declarations on my part have produced a very favourable impression upon many of the most influential of the Chiefs."

In answer to these Despatches, the fourth Colonial Minister, Mr. Gladstone says, (26th. May 1846) "I have likewise the satisfaction of apprising you that Her Majesty's advisers

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highly approve of your declaration with respect to the maintenance of the faith of the Crown in regard to the treaty of Waitangi." 22

The title then of Great Britain to this Country rests entirely upon a voluntary cession of the Sovereignty of the country to the Queen. Therefore, according to established principles of law, all private rights of property existing in the country at the time of the cession remain unaffected. By that cession, Great Britain has not acquired any land of any sort in the country, if that land have an owner among the natives, according to their own customs. Whether the land be actually occupied by its owner is not the question; but only, whether it have an owner.

2. The above would have been the state of the case, even if the Treaty had not contained any reference to the rights and property of the Natives. But in fact it did contain an express guarantee, and that in the strongest and amplest words.

By the 2nd. Article of the Treaty "Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests and fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession."

These large and unrestricted words were introduced by us. We, and not the natives, drew and prepared the Treaty.

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In pursuance of Lord Normanby's suggestion, Missionaries both of the Church of England and of the Wesleyan Mission were requested by Captain Hobson to obtain signatures to the Treaty in various parts of the country, "first explaining to them its principle and object, which," he said, "they must clearly understand before you permit them to sign." 23

All the Missionaries so employed by Captain Hobson, without one exception, have protested against the construction now attempted to be put upon the Treaty. They affirm, that they explained the Treaty to the natives in its natural and obvious sense--that they have since repeatedly silenced objections on the part of the natives to the British Government by reference to the Treaty as so explained--and further, that it is their belief, that by no other explanation could they have obtained the signature of a single chief throughout the country.

Major Bunbury also was employed by Captain Hobson for the purpose of obtaining signatures. In the discharge of this duty he visited the southern Island, and the principal chiefs of that Island also became parties to lhe Treaty, he proceeded even to Stewart's Island; and, in Foveaux Straits, he gave the following explanation of the Treaty:-- "The Treaty guarantees the full and exclusive possession of their lands and other properties to the Natives." 24

Lord J. Russell writes to Captain Hobson, 30th. March 1841, "I have received your Despatch No. 7, of the 15th. of October last, inclosing reports from the various gentlemen whom you had commissioned to treat with the native Chiefs for the purpose of effecting their adherence to the Treaty of Waitangi.

I have to convey to you the approval of Her Majesty's government of the measures which you adopted throughout these negotiations." 25

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In a translation of a letter, in the New Zealand language, which Governor Hobson "addressed as a Circular to the Chiefs generally," and transmitted to Lord J. Russell 15th. October 1840, is the following passage:-- "And although the many white people say, The natives will be intentionally cast back; their country, lands, and sundry property will be taken from them for nought; I say peaceably, civilly, This is false. Believe not these sayings. Presently you will see the truth of what I have said and done." 26

In answer, Lord J. Russell says 17th. April 1841. "I have read with much interest the specimens which you have transmitted of your correspondence with the native Chiefs, and I approve in every respect the tone and tenor of those communications." 27

Governor Grey, on the 12th. December 1847, addressed the Legislative Council in these words:-- "I feel it to be due alike to the interests of both races of Her Majesty's subjects within this Colony, to take this the first public opportunity which has been afforded me of stating, in the most explicit terms, that I have been instructed most honourably and scrupulously to fulfil the conditions of the Treaty of Waitangi, by which the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which the chiefs and tribes of New Zealand and the respective families and individuals thereof may collectively or individually possess, was confirmed and guaranteed to them so long as it may be their wish and desire to retain the same.

In February, 1846, Governor Grey, in answer to a letter addressed to him by 15 of the most influential chiefs in the District of Port Nicholson, wrote thus: "Maories and Euro-

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peans shall be equally protected, and live under equal laws. Both of them are alike subjects of the Queen, and entitled to her favour and care. The Maories shall be protected in all their properties and possessions, and no one shall be allowed to take any thing away from them, or to injure them. The Europeans shall be protected in their property and possessions, and no one shall be allowed to take any thing from them, or to injure them." 28

The Cession of Sovereignty--the assurances accompanying it--the words of the Treaty and of numerous subsequent affirmations of that Treaty--could have but one meaning. The natives could not understand by them any thing else than this; that whatever they, amongst themselves, called and considered their own, should be as much their own after our coming as it was before.

On our part we used on every occasion the largest and most comprehensive terms, without a single word of exception or reservation: and we are not free now to narrow and limit those terms, by putting upon them a private construction of our own.

In conformity with the assurances so given, the territorial rights of the natives have been repeatedly recognized by Acts of the Colonial Governments:

1. By the Inquiries conducted by the Commissioners of Land Claims, Mr. Spain, Major Richmond, and Colonel Godfrey; who (one or other of them) held Courts of Inquiry at a great number of places in both Islands from the North Cape even to Otakou, and who proceeded always upon the principle that the Ownership of the Soil (whether waste or not) is vested in such persons as, according to native custom and understanding, are deemed to be the owners thereof. 29

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2. By purchases of large tracts of land, in various parts of the country, without making any distinction between land already subdued by man's labour and lands wholly unsubdued.

The native right of property in wild land has been acknowledged quite as strongly by the acts of the New Zealand Company, as by those of the Colonial Government. For the Company also bought, or professed to buy, land, without any distinction as to its character or condition at the time.

In fact the territorial rights of the natives had been most distinctly asserted in the following extract from the Prospectus of the New Zealand Association of 1837; which Association was afterwards merged in the New Zealand Company of 1839.

"A recent change of opinion in this country on the subject of the rights of uncivilized nations now forbids the invasion and confiscation of a territory which is as truly the property of its Native inhabitants as the soil of England belongs to her landlords; and though it were as easy now to pursue the old course of substituting might for right, yet this would defeat a main object of the present undertaking; with our views, it would be a folly, as well as a crime, to do violence to any inclination of the Natives; and it follows, that in all our proceedings the national independence of the New Zealanders already acknowledged by the British Government in the appointment of a Resident and the recognition of a New Zealand flag, must be carefully repeated; and especially that we should not attempt to convert any part of their country into British territory without their full, free, and perfect understanding, consent, and approval."

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The result then is that, by solemn and repeated words and deeds, our national faith is pledged to the following rule:

All lands in New Zealand which have any owners according to native custom, do still belong to those owners: whilst all lands which have no owners, fall to the Crown, by virtue of the Cession of Sovereignty.

1   Debate on N. Z. June, 1845, p. 239.
2   Report, p. 5.
3   Parl. Pap. April, 1846. p. 37.
4   Parl. Pap. April, 1840. p. 38.
5   Ibid. p. 39.
6   Ibid. 39.
7   Ibid. p. 37.
8   Ibid. p. 39.
9   Parl. Pap. 1841, p. 42.
10   Parl. Pap. 1841, p. 42.[??]
11   Parl. Pap. 11th. May, 1841, p.42.
12   Parl. Pap. 1841, p. 42.
13   Ibid. p. 37.
14   Parl. Pap. July 1844. App. p. 21.
15   Ibid. p. 36.
16   p. 243.
17   p. 215.
18   Parl. Pap. May 18, l846.
19   Parl. Pap. 1846. p. 10.
20   Ibid. p. 13.
21   Ibid. p. 18.
22   Ibid. p. 37.
23   Parl. Pap. 1841. p. 17.
24   Ibid. p. 107.
25   Ibid. p. 112.
26   Ibid. p. 113.
27   Parl. Pap. 1845-6. p. 23.
28   Parl. Pap. August, 1846. p. 19.
29   Reports of Commissioners.

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