CHAPTER II.
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CHAPTER II.
ON THE "RIGHT BY DISCOVERY," PARTICULARLY IN REFERENCE TO AN ALREADY PEOPLED COUNTRY: TO WIT, NEW ZEALAND.
ACCORDING to the Law of Nations, the act of taking possession, under certain conditions, of a newly-discovered country, gives to the discoverer--that is, to the Crown to whom such discoverer owes allegiance--certain rights inalienable and sacred; and thus it was through Captain Cook that the Islands of New Zealand originally came to be regarded as an appendage to the dominions of Great Britain. We purpose to discuss these rights, in the order in which they arise; wherefore we will enquire first into this "Right by Discovery."
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VATTEL, the first authority on these questions, thus writes: 1
"All men have an equal right to the things which have not yet fallen into the possession of any one; and these things appertain to the first occupant. Wherefore, when a Nation finds a Country, uninhabited and without a master, it may lawfully seize upon the same; and after it has adequately denoted its will in this respect, another cannot thereof despoil it. Thus, Navigators, going on the discovery, provided with a commission from their Sovereign, and falling in with desert islands, or other desert lands, 2 have taken possession of them in the name of their Nation: and commonly this title has been respected, provided that thereupon a real possession have closely followed."
Acting upon the principles here laid down, civilized nations have ever appropriated to themselves those countries which the servants of the Crown were so fortunate as to discover; and the proceeding is evidently founded in
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equity. There is, however, one important condition insisted upon by this great writer, which, in respect of this peculiar claim to such newly-discovered countries, should not be lost sight of, namely: that they must be "uninhabited and without a master."
As most materially affecting the rights of Aborigines, the observance of this condition is of vital consequence; but, unfortunately, although the Law of Nations is aptly enough quoted whenever there exists a possibility of wresting its spirit to the disadvantage of Native Tribes, its equity in this one main point of title by discovery has been wholly set aside; for whether the lands discovered were uninhabited or were peopled, the nation discovering has ever asserted its so-called right, and maintained it.
It will be our duty to show that the Law of Nations does not, under any pretext, sanction so gross a violation of the rights of a people, be that people civilized, semi-barbarous, or simply, savage; hence, under no pretext of right by discovery, of what nature soever the privileges which that right is assumed to confer--could Great Britain justly assume, by the act of Captain Cook, a bona fide possession of
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the Islands of New Zealand, because, at the time of their discovery, those Islands were inhabited, and did not, consequently, come under the denomination of lands open to be "seized upon" by circum-navigators.
We are here arguing upon the abstract right, be it understood: we shall, in due place, enter upon the discussion of the more complicated political questions which arise out of it. We simply deny to any Nation the right, on the plea of discovery, to seize upon another country which, at the moment of its being discovered, is already inhabited.
At first sight this doctrine may appear extravagant, because diametrically opposed to the practice of civilized nations, of which practice, nevertheless, we cannot find a justification in any writer on the Jus Gentium, the principle being in all of them established that no nation whatsoever can, under any pretext, violate the rights of any other independent nation. And far better would it have been for humanity in general, and far worthier too, of those people calling themselves civilized, if in their mode of extending their power and domination, they had contented themselves with abiding by the spirit as well as the letter of the law; the
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annals of their History had not then been polluted by the record of crimes committed under the influence of a thirst for power, nor would Society have had to deplore the consequent extermination of entire Tribes, whom Christianity and Civilization were destined to redeem from barbarism, not more deeply to degrade and finally annihilate.
We cannot apprehend, in spite of the practice which has hitherto obtained amongst Nations, in reference to the question of an unqualified right by discovery, that its validity can be maintained, on the broad, abstract principle of equity, however defensible may be deemed the more subtle political reasons adduced in support of it. Vattel is positive on this head; for he says:
"Nations being free and independent one of another, since men are naturally free and independent, the second general law of their association is, that each nation ought to be left in the peaceable enjoyment of that liberty which it holds from nature. The natural association of nations cannot subsist, if the rights therein which each has received from Nature are not respected. Neither of them seeks to renounce its liberty, and would rather break off all
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commerce with those who would undertake to attaint it." 3
In another place, and speaking of the association which nature has established between men and between nations, he observes:
"The universal association of mankind being an institution of Nature herself, that is to say, a necessary consequence of the nature of man, all men, in what condition soever they be, are obliged to cultivate it, and to fulfil all the duties thereof." 4
This proves that savage tribes are not to be excepted from being considered as constituting part of that association of nations, recognized as forming the aggregate political not less than the natural world.
But certain theorists of over-diluted political sensibility, and who, in their eagerness to promote the advancement of the interests of the civilized nations to which they belong, are accustomed to disregard the natural rights of Aborigines, may possibly be shocked at the bare idea of men, living in a state of nature,
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ranking--in point of political considerations--as the equals of their European civilized brethren; in such light, however, we cannot otherwise than regard them:
"Since men are naturally equal, and that their rights and their obligations are the same, as coming equally from Nature, nations composed of men, and considered as so many free persons who live together in a state of nature, are naturally equal, and hold from Nature the same obligations and the same rights. Neither strength nor weakness produces, in this respect, any difference. A dwarf is as much a man as is a giant: a petty republic is not less a sovereign state than is the most powerful kingdom.
"As a necessary consequence of this equality, that which is permitted to one nation, is likewise permitted to any other, and that which is not permitted to the one, is likewise not permitted to the other. 5
It will perhaps be asserted that Aboriginal nations do not come within the category in which we pretend to place them, upon the au-
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thority of the Jus Gentium: but what says this law?
"Every nation that governs itself, under what form soever it be, without dependence upon any stranger, is a Sovereign State. Its rights are naturally the same as those of every other State. Such are moral persons, who live together in association, subject to the laws of the Jus Gentium. In order that a nation may possess the right of figuring immediately in this great association, it suffices that it be veritably sovereign and independent, that is to say, that it govern itself, by its own authority and laws." 6
From the foregoing evidence the inference is conclusive against the acquisition, on the mere plea of discovery, and by any nation whatsoever, of any right absolute over any newly-discovered country, the same being, at the time, inhabited, although by a savage race; whilst, on the other hand, such right is indisputable and sacred over those lands which are found unpeopled.
But if the strictest principles of equity will
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not accord to a nation discovering, the acquisition of rights absolute, under similar circumstances, it does not therefore impede the extension of civilization through the medium of geographical discovery or exploration; it merely secures to the first occupants their right to all that fell in possession to them when they originally established themselves in the country, of which in reference to any subsequent discoverers, the Aborigines must be considered the more legitimate Sovereigns.
It appears to be a principle recognized by Jurists, that a nation discovering, acquires, by its act of finding new and already peopled regions, a certain valid but inchoative right, good as against any third party, but not as against the natives of the soil; in virtue of which, navigators have usually proceeded to take possession of the lands they have found, and this irrespective of the pre-existing rights of the Aborigines, who cannot be supposed ever to have been able to comprehend the importance of ceremonials which to them must appear vain and empty.
We here confess our inability to appreciate the nature of this so-called inchoative right, of which the Law of Nations makes no mention,
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and which seems to us to violate the principles of justice whereupon the Law of Nations itself is established.
"A right inchoative, good as against third parties, but not as against the native owners of the soil." Let us examine the question.
And first, what right in the new country can the nation discovering, possibly acquire against third parties, without depriving the Native Sovereigns of some portion of their preferable rights, as the first occupants, to all that the country contains? for it must ever be borne in mind, and we cannot too strenously urge the recognition of this principle, that the Aborigines of any newly-discovered country do possess a prior claim to all those rights which a nation discovering asserts on its own behalf as against third parties, since there must have been a period when the Aborigines themselves were discoverers, and the country was probably desert and uninhabited, in which case the Law of Nations confers upon them absolute rights over it, Sovereign and proprietary, which must be held as sacred in the one case as in the other. They having, therefore, established themselves in the land and formed themselves into a Sovereign State, according to the accep-
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tation of the Law of Nations, it is manifest that discovery cannot, nor ought in justice to prejudice them in respect of their natural Sovereignty and independence; hence, before we accord any rights at all to a nation discovering, we must carefully guard against such acquisition's violating these sacred prerogatives of a free people.
We may incidentally remark that in the case of the New Zealanders, it is urged that the title of some, to the soil they have appropriated to their use, rests in sundry instances upon the fact of their having (to employ the language of a certain facetious Member of the House,) "taken forcible possession of the same, and eaten off the legitimate owners." 7 Of course we cannot, any more than the honorable gentleman in question, maintain that such a principle, namely; of Might against Right, is to be justified; but the act being committed, and the parties in possession, we do not see how much more justified we, the nation discovering, and a Christian nation too, should
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be in renewing the operation--less the cannibalism--for the purpose of dispossessing the actual occupants. This, however, en passant.
Under any circumstances then, it is manifest that the New Zealanders must be regarded, first, as the original discoverers of their Islands; next, as having complied with the conditions, namely; "occupation and use," imposed by the Law of Nations as indispensable to legalise the right which they, as discoverers acquired; and consequently, and in the last place, as the legitimate Sovereigns of their country; hence, as we have shown, no other nation discovering could acquire, by the mere act of finding these Islands, any rights which should infringe upon those already possessed by the Natives as the discoverers and Sovereigns thereof.
That the Jus Gentium in establishing the validity of "right by discovery," never contemplated a violation of equity, is proved by the very definite restrictions it imposes upon Nations, in the subjoined formula.
"The Law of Nations, then, will recognise the Proprietary right and the Sovereignty of a nation over only uninhabited countries which it shall have occupied really and in fact; in which it shall have
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formed a settlement, or from which it shall be deriving an actual use." 8
Thus it would seem that in taking possession of newly-found but already peopled countries, nations discovering them have violated the strict principle of equity which is the basis of the Law of Nations. If a bona fide and complete possession be assumed with the consent of the Natives, the act is evidently one of Compact or Treaty, and wholly beside this argument. If the taking of possession, even still with the consent of the Natives, be a mere form, intended to legalise or further to secure that so-called inchoative right which is said to be insignificant as against the Aborigines, but all-significant as against third parties, and which one might suppose the act of discovery were in itself sufficient to confer, then the formula "in the name and for the use of the Sovereign" should be discarded, for it implies an encroachment upon the natural, independent rights of the Natives, who, if the words be held to have no meaning, as regards them, but a very direct significancy as regards third parties, can-
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not possibly be expected to appreciate a political logic which sins against common sense, and which more enlightened nations would be as sorely puzzled to elucidate. Lastly, and as it has but too frequently occurred, when forcible possession is taken of a newly-discovered country, the act is clearly unjustifiable and oppressive. 9
The reasonableness, not less than the justice of our views, will be found confirmed by the additional conditions of which the Jus Gentium imposes the fulfilment upon a nation discovering, as essential to complete and legalise its right by discovery. With reference hereto, it says:
"But, it is a question to know if a nation may appropriate to itself thus, by a simple taking of possession, countries which it does not occupy really, and reserve to itself in this manner much more of them than it is able to people and to cultivate. It is not difficult to decide that such a pretension would be absolutely contrary to the natural right, and opposed to the views of Nature, which destining the
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whole earth to the wants of men in general, gives to each nation the right of appropriating to itself a country, only for the uses which it derives therefrom, and not to hinder others from profiting thereby. The Law of Nations, then, will recognise the proprietary right and the Sovereignty of a Nation over only uninhabited countries which it shall have occupied really, and in fact, in which it shall have formed a Settlement, or from which it shall be deriving an actual use. In fact, when navigators have fallen in with desert countries, in which those of other nations had erected on their passage some monument to denote their taking of possession, they have taken no more heed of this vain ceremony than of the arrangement of the Popes, who divided a great part of the world between the Crowns of Castile and Portugal." 10
It will be urged that the foregoing argument is two-edged; that if it is to be received as valid against nations discovering, yet not occupying and using, then it must likewise hold good against the Natives, considered as the discoverers, but not using all the land, though in the virtual occupancy thereof. To this ob-
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jection we reply, that the Aborigines have by their occupancy and use of a part of the soil, established their right of sovereignty and of property over the whole, and do not therefore come within the category in which other nations discovering, must be placed, and who would have to acquire, to the prejudice of the Natives, a right which these already possess, and of which they ought not to be deprived. 11
Thus it appears that with reference to newly-discovered, but desert and uninhabited countries, the right thereto by discovery clearly appertains, de jure et de facto, to the first comer. On the other hand, it has been a grand, fundamental error in the primitive relations of Europeans with Aboriginal tribes inhabiting countries theretofore forming no part of the recognised system of international polity, that they have ever applied to newly-discovered countries which they found already peopled, the law laid down by Vattel and by other eminent authorities, as applicable to only "desert islands or other desert lands."
In connection, however, with this important question, we must quote such additional evidence in support of the claims of a nation discovering, as may tend to throw light upon the
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nature of this so-called inchoative right, which it is our object to attempt to define.
"There is," says Vattel, 12 "another celebrated question to which the discovery of the New World has principally given rise. It is asked, if a nation may lawfully occupy any portion of a vast country, in which are to be found only errant tribes, incapable, because of the smallness of their numbers, of inhabiting the whole. We have already observed in establishing the obligation of cultivating the soil, that these tribes may not appropriate to themselves more land than they require and than they are in a condition to inhabit and to cultivate. Their vague habitation in these immense regions, cannot pass for a veritable and legitimate taking of possession; and the people of Europe, too pent-up at home, finding a land whereof the savages had no particular need, and of which they made no actual and sustained use, were competent lawfully to occupy the same, and there to establish colonies. We have already said, the earth belongs to the human race for its subsistence. If each nation had desired, from the commencement, to appropriate to itself a vast country, therein to live only by hunting, fishing, and on wild fruits, our globe would not suffice for the tenth part
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of the men who inhabit it at this day. One does not, then, exceed the views of Nature, in restricting savages to narrower limits. Nevertheless, one cannot but laud the moderation of the English Puritans, who the first established themselves in New England. Although provided with a Charter from their sovereign, they purchased of the savages the land they wanted to occupy. This praiseworthy example was followed by William Penn and the colony of Quakers which he conducted into Pennsylvania."
To accord to such a principle as this an unqualified assent, would be giving deliberate sanction to all those encroachments, violations, abuses and atrocities which have proved so fatal not only to the tribes of North American Indians, but to many others inhabiting various remote parts of the globe. Vattel himself particularly insists upon the fulfilment of certain conditions, before a European nation may seize upon the incult lands of Aboriginal tribes, and we reserve to ourselves to prove, presently, that if he asserts that the obligation of cultivating the earth is imperative on Savages, it is not less so on a civilized people; hence, although cordially assenting to the principles laid down in the Jus Gentium, namely; that nations discovering, may acquire lands in newly-found
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and already peopled countries, we as distinctly proclaim ourselves at issue with those theorists who maintain that such a right is unconditional. If this principle were admitted, without restriction, into the inter-national code, any nation would be competent to seize upon the uncultivated lands appertaining to any other; and if the legitimate owners--civilized or savage--labouring under the impression (poor mistaken souls) that they had a prior right and a better to these same lands, were to assert such right by force of arms, then, the invading nation, holding the Jus Gentium in the one hand, and the sword in the other, might legitimately use the latter to despoil the natural occupant, and next proceed to justify the act by an appeal to the former.
As we shall have occasion to recur more fully to this subject, we will, for the present, simply assume that the point is conceded, and proceed to the further investigation of the "inchoative right by discovery," premising, however, that even were the foregoing principle admitted unconditionally, in respect of errant hunting tribes--which, however, we do not admit--it could in no manner apply to the New Zealanders, who are an agricultural
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people, and fulfilling, in their natural condition, the duties which the Jus Gentium imposes as I imperative upon all nations.
It being predicated by the Law of Nations that occupation is necessary to perfect right by discovery, viz: the inchoative right in question, and such right being conceded in respect of new but unpeopled countries, we have next to enquire how far the occupation of new, but already peopled lands, can exist so as to be good as against third parties, without prejudicing the Aboriginal occupants.
"If," writes Grotius, 13 "in a country which has been occupied in the mass, (say generally) there remain any portions which have not been assigned to any person in particular, it should not for that reason be considered as vacant, for it belongs, in all cases, to him who is the first master of the country--I mean by this, the people or the King. Such is, in general, the ownership of rivers, lakes, fishponds, forests and uncultivated mountains.
"It is also unjust to appropriate to one's self, things which are in the possession of another, under the pretext of having discovered them; and that, even when their possessor should be a wicked man,
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or entertain false sentiments with regard to the Divinity, or be naturally stupid, for one can appropriate to one's self, by right of discovery, only that which belongs to nobody."
So far, then, we perceive that "discovery" confers no proprietary title to any such lands as are already in occupancy, even though of a savage or heathen people; and Vattel likewise enforces the same principle when he asserts that "these tribes may not appropriate to themselves more land than they require, and than they are in a condition to inhabit and to cultivate;" for, given that they require the whole, and are in a condition to inhabit, that is, to people and to cultivate the same; or, again, that they retain it for their ultimate requirements--as the New Zealanders do, to wit--it is difficult to conceive how any nation can, by the mere act of discovery, acquire a right to occupy to their detriment: the onus probandi must, in such a case of claim, rest with the Aborigines, who, by any act of cession, voluntary or compulsory, thereby establish their prior title to the soil, which it is imperative upon all nations to respect. 14
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It seems to be admitted by writers of authority on this subject, that the right by discovery alone, gives to the discovering nation no more than a preferable right of occupation to the exclusion of other nations who might claim by a similar title, but as against the native occupants, such claims cannot affect their rights to their own land.
"A right by occupation is therefore necessary to perfect a right by discovery, but may exist independently of it; and this right does not extend beyond those lands which the occupying nation shall actually use, and not to the appropriation of the lands which the Natives themselves occupy or enjoy." 15
Now this is simply enunciating what we have already proved, viz: that over already peopled countries newly found, a nation discovering them can assert no title at all; for it may not occupy that which is already occupied, by any appropriation to itself of that which is already appropriated en gros, as Grotius
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has it. On the other hand, that is, admitting it, pro forma, as competent to acquire jurisdiction over lands not occupied nor enjoyed by the Aborigines, and that such jurisdiction be held to extend over only such lands as its people shall actually use, it is clear that, upon this principle, a third nation may in like manner acquire an equally valid claim over the remainder, if any; unless, in such case, the nation first discovering, take its stand upon its very indefinable, so-called inchoative right, and descend to the part of "the dog in the manger."
Thirdly, if this "preferable right of occupation to the exclusion of other nations who might claim by a similar title," be thus subservient to the will of the Natives, as indeed it must be, discovery clearly gives not any right at all, and can in no wise constitute a plea to coerce them to grant a preferable title to another, since any attempt to do so would be an infringement upon their natural independence; we must therefore consider it under some other aspect.
There are some expositors of the Law of Nations, who, desirous of respecting the rights of Aborigines, yet scrupulously jealous of those which they imagine discovery to confer, whilst
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denying to the Crown any proprietary right over newly-found and already peopled countries--a right which they admit must operate to the prejudice of the Native owners--nevertheless vest in it all title to the lands, whether occupied or unoccupied, resting their doctrine upon what Blackstone calls a "legal fiction," viz., "that the King is the source of all title;" further, they maintain--fallaciously as we conceive--that this right being sovereign, that is, merely territorial, and not proprietary, is unprejudical to the Aborigines, since it cannot be said to deprive them of anything they possess.
But if discovery confer sovereign, that is, territorial rights, it clearly usurps that which was already possessed by another, viz: the Aboriginal Sovereignty; in other words, it violates the independence of the people by attacking their Sovereign privileges. The right absolute of sovereignty is either good against all parties, or good against none; it cannot be null as against the Aborigines, and valid as against its own subjects, or against those of a third power. If it be said only to secure to the Crown its rights of prerogative over such lands as its subjects may ultimately acquire in the newly-discovered
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country, the assumption is simply superfluous; for these rights can never be in abeyance, where they exist, as over new and unpeopled territories acquired by discovery, and which the Crown of England will not allow its subjects to colonize without the royal license; in all cases asserting its claim to be considered as "the source of all title." On the other hand, these are of no account over such properties as are held by its subjects in a foreign, independent State, because there, another sovereignty obtains and has precedence of prerogative over all lands derived from it, having a prior claim to be regarded as the fountain-head of all title, within its own independent territory.
In some measure connected with this right of sovereignty assumed to be acquired by discovery, is that which some call a "right by possession;" to wit, Joseph Somes, Esq, who in his communication to Lord Palmerston, dated 7th Nov., 1839, maintains on various grounds, that the right of Great Britain to Sovereignty over New Zealand, was perfected by possession. The only formal act of taking possession, however, of these islands, was effected by Captain Cook, who could not, as we have shown, acquire for Great Britain a right to possess a
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country already possessed by an Aboriginal race, whose claim as the first occupant was preferable and paramount. Mr. Somes, in alluding to the aforesaid right of sovereignty by possession, says:
"The Law of Nations, we believe, recognises no other mode of assuming dominion in a country, of which the inhabitants are so barbarous as to be ignorant of the meaning of the word sovereignty, and therefore incapable of ceding sovereign rights. This was the case with the New Zealanders, from whom it would have been impossible for Captain Cook to have obtained, except in mockery of the truth, a British Sovereignty by cession. Sovereignty by possession, is that which the British Crown maintains in a large portion of its foreign dependencies." 16
With deference to this opinion, the Law of Nations recognises no such mode of assuming dominion; it holds the natural and the Sovereign rights of Aborigines in higher respect than to sanction so gross a violation of them as
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such an assumption would be. Very much, indeed, to the contrary, it lays it down as an axiom, that every self-governing nation, whatever its form, is a Sovereign state, whose rights are naturally the same as those of every other State; and with respect to its privilege of figuring in the great association of Nations, or in other words of forming an integral part of the great system of international polity, "it suffices that it be veritably Sovereign, that is that it govern itself, by its own authority and laws. 17 "
This point conceded, then, it is difficult to conceive, and impossible to reconcile with the grand fundamental principles of the Jus Gentium, how a Nation possessed of sovereign rights can, save by its own deliberate act, or by force, be deprived of them. Hence Captain Cook's act of taking possession of New Zealand could not confer, as against the Natives, Sovereign rights upon the Crown of Great Britain.
If Native tribes, that is, Aboriginal nations are to be shut out from the great system of in-
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ter-national polity, and declared incompetent to the exercise of sovereign power over themselves, simply because they differ from us in customs and habits, then is there opened a wide field for oppression, injustice and inhumanity. Upon this principle, there would exist no safety for any people; for it would suffice to set up a standard of civilization, and to declare war against all who did not attain to it. The territories of the Chinese, of the African Kings, of the Rajahs of India, and even of more than one European Monarch might be invaded and taken possession of, with equally as much justice as the Islands of New Zealand and other lands inhabited by human beings, too "barbarous" perhaps to understand "the word Sovereignty, although by a singular anomaly in the positive exercise of all its attributes.
Granting, however, that Captain Cook's discovery conferred sovereign rights upon the Crown, the latter would exercise in New Zealand, and over the New Zealanders, all the rights of its prerogative to precisely the same extent as they are recognized in Great Britain. But not to enumerate them all, there is one which would be found most materially to affect the
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natural rights of the New Zealanders, namely;
"It is a fundamental maxim of our laws, springing no doubt from the feudal origin and nature of our tenures, that the King was the original proprietor of all the lands in the kingdom, and consequently the only legal source of private title." 18
"(As well for the protection of the Crown as for the security of the subjects, and on account of the high consideration entertained by the law towards her Majesty,) no freehold, interest, franchise, or liberty, can be transferred by the Crown but by matter of record." 19
"The rule, therefore, adopted in our Colonies that the Queen has the exclusive right of extinguishing the native title to land, is only one member of a wider rule, that the Queen has the exclusive right of acquiring new territory, and that whatsoever the subject may acquire, vests at once, as already stated, in the Queen. And this, because in relation to the subjects the Queen is the only source of title." 20
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Authorities might be multiplied in support of this asserted and peculiar privilege of the Crown's, in relation to the acquisition, by its subjects, of desert lands for colonizing; this however, would be needless; there is before us abundant evidence to show, that the first practical result of the unconditional assumption of British sovereignty would have been to annul the primitive native title to all the territory possessed by the New Zealand nation, individually and collectively, and to vest it in the Crown of Great Britain. In a word, the territorial jurisdiction over all the lands in that country would have passed to the Crown, to the detriment and the prejudice of the original possessors.
Now simple discovery cannot, as we have proved, confer a possessory title to lands already in occupancy, because the Law of Nations will not allow the rights of property to be infringed; nor can it confer sovereign, that is territorial rights, because such cannot be enjoyed without an infraction of the prerogative of the Native tribes, the first occupants of the soil, who, recognising no authority save that of their Chiefs, are entitled, by this one act alone, to retain their natural privileges as a Sovereign people.
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All that discovery can do, and does, is to confer upon the nation discovering, rights absolute, Sovereign and proprietary, over newly-found but desert lands only.
The fact adduced by Mr. Somes, that Sovereignty by possession is that which the British Crown maintains in a large portion of its foreign dependencies," is no proof of the justice of its tenure, of the equity of the principle, nor of the soundness of this gentleman's argument.
It would nevertheless appear, that as a reward to enterprize, some privilege ought in justice to be accorded to a nation discovering a new though already peopled country; but if Sovereignty and independence mean anything, it is equally clear that any such privilege must be acquired of the Aborigines, and be restricted by such conditions as may be mutually agreed upon; and inasmuch as the capacity of the discovering nation to form settlements, and to acquire lands in the new country ought, in justice, to be subservient to the free acquiescence of the native Sovereignty, so, in respect of third parties, should their capacity to do the same, depend upon the sanction of the nation discovering, based always on the terms of its com-
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pact with the Aboriginal people. If the latter, in respect to such third parties, shall have been left free to admit foreigners, then, we cannot conceive that simple discovery confers any right to coerce the natives to a different course; for it is plain that B., the discovering nation, ought neither to control the liberty of A, the nation discovered, to grant the nation desiring to settle, namely, C, the requisite permission, any more than it can, by any so-called inchoative right, limit C's liberty of acceptance. The only valid right discovery may be said to confer, is that of preventing any third party from forcibly assuming the sovereignty over the nation it has itself discovered: and as experience has shown that when Aborigines--more particularly the New Zealanders 21 --sell their land, they consider that their jurisdiction over it ceases altogether, their occupation, under such circumstances, following upon discovery, the territorial or sovereign right of the British Crown may naturally and
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legitimately be said to extend over just so much territory as its subjects may have lawfully acquired, but no further. Moreover, this right would even then be exercised, not in virtue of discovery, but of the Crown's prerogative, which can never be in abeyance.
Since the evidence before us is conclusive against any nation's acquiring, by the mere act of discovering a new country, either any sovereign or proprietary right; since it is proved that it can acquire no right that shall be valid as against third parties, but null as against the Aborigines, without, to a considerable extent, despoiling these of something they possessed; it will then appear, that in practice, the formal act of taking possession of a newly-discovered and peopled country, is not, in point of fact, if it have any meaning at all, a mere ceremony intended to secure presumed rights inchoative so-called, as against third parties, and not as against the Aborigines. And herein lies the mischief; for we find that when Captain Cook took possession of New Zealand, he did so "in the name and for the use of His Majesty King George the Third," and it seems to have been the usage of all European nations to observe a similar course in favour of their respective
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Sovereigns, and always without regard to the prior claims of the Aborigines, whom they affected to consider unworthy to enjoy, and incapable of exercising, the ordinary rights and privileges of an independent people.
We do not hesitate to affirm that on principle such proceedings are unjustifiable and indefensible, and have resulted in the most sanguinary conflicts when the Aborigines were sufficiently powerful to resist, for a time, the encroachments of the interlopers. On the other hand, when they have been weak, the most atrocious crimes have signalized the alien occupancy, the natives being wantonly butchered, with less remorse than cattle are slaughtered; or they have been hunted down like beasts of prey and destroyed; or, again they have fled from their ruthless pursuer, further and further into remoter and more desolate regions, where they have ultimately perished. The same fate has also overtaken them, sooner or later, when having made their submission, they have associated with the European, and striven to conform to his customs. 22
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We have been betrayed into these observations in consequence of the manner in which right by discovery has been asserted, contrary to the spirit as to the letter of the Law of Nations. This right has been enforced in every instance, has been defended and admitted upon the faith of a law which specifically limits this right to such countries as are "uninhabited and without a master; whereas, in practice, whilst the principle has been strenuously advocated as a just one, the condition inseparable therefrom, to render it so, has been flagrantly disregarded, and nations discovering have taken possession equally of peopled as of unpeopled countries which their circum-navigators have fallen in with.
There can be no question that the observance of a more equitable course, would have been far wiser policy, for past experience has proved how expensive are the evils attendant upon the old system. When navigators have exhibited forbearance and mildness, tempered with firmness--aye, and even when they have not displayed these qualities but indulged rather in their opposites--Aboriginal Tribes have generally, if not always, been found willing to receive the European amongst them, and to enter
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upon friendly intercourse with a view to present, ulterior, and permanent advantage. What necessity then for making Might the measure of Right? for violating the sacred right of nations, by disregarding the law that Equity has laid down, that Reason supports, and that Religion invokes in favour of the uncivilized inhabitants of the world?
