CHAPTER III.
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CHAPTER III.
HOW "RIGHT BY DISCOVERY" IS PERFECTED; AND HOW GREAT BRITAIN RENOUNCED ANY SHE MAY BE ASSUMED TO HAVE HAD, IN RELATION TO NEW ZEALAND.
WE have shown, in the preceding Chapter, first, that occupation is indispensable to perfect the right by discovery; secondly, that the right to occupy, following upon that by discovery, is lawful in respect of only newly-found territories which are unpopulated; and thirdly, that in respect of such as are peopled, a nation discovering the same, cannot arbitrarily acquire any right which shall be good as against third parties, and which shall not, to an equal extent, prejudice the Aborigines; because such a right, though it may be called merely inchoative, that is imperfect, or in its beginning, must refer to an entity; that is, either to a right of sove-
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reignty or to a proprietary right, both of which are already enjoyed by the first occupants, who may not thus be despoiled of their natural privileges.
With reference to New Zealand, therefore, to which Great Britain is asserted to have originally had a claim by "right of discovery," it is of importance not to lose sight of these principles; for, if they be just, the act of Captain Cook in taking, (in the name and for the use of His Majesty King George the III.,) possession of the country he (Captain Cook) had found, could confer upon the Crown of Great Britain no right that should be valid against other nations, and still less against the New Zealand Aborigines, notwithstanding that the terms of the formula implied the assumption of such latent right against both.
As, however, it has been asserted that Great Britain did by discovery acquire rights of some kind over New Zealand--though we confess our inability to perceive on what principle--we must concede the point for mere argument's sake; but then we must likewise admit, with reference to any such rights, whether inchoative or absolute, that newly-discovered countries already peopled stand comprised, in the Law of
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Nations, within the same category as do "desert islands and other desert lands;" an admission clearly contrary to the letter as to the spirit of the Jus Gentium, which nations discovering would seem to have grossly violated in establishing no distinction between the two. Conceding all this, nevertheless, we have seen that in order for a nation to perfect its "right by discovery"--its inchoative right so-called--it has important conditions to fulfil other than the mere act of taking possession; thus, to legalize her assumed but imperfect claim to New Zealand, it was imperative upon Great Britain to accomplish a real possession of the country, by some formal act of the Government's, speedily following upon that of Captain Cook's; and this was by the "formation of a settlement," or by the "continuing to derive some actual use" from the new territory.
It will hardly be contended that the frequenting of the ports of New Zealand by whaling- vessels; that the establishment of Missionary Stations in the country; that the residence there of certain British subjects--many of them of more than questionable character--and their purchases of lands from the Natives; all of them independent acts; were in fulfilment of
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the requisite conditions enumerated: for, in none of the above-mentioned instances did the Crown identify itself with them.
If, however, there be any who maintain the reverse opinion, we would refer them back not only to Vattel, but to the most eminent Jurists, and likewise to the opinions of Judges whose authority has, even recently been added in confirmation--if such confirmation could be necessary--to the mass of evidence already conclusive enough against similar doctrine. The sum of this evidence may be given in the following words:
"Now, the law of England denies to any subject the right of forming a Colony without the license of the Crown." 1
We believe no one will assert that the license of the Crown was ever granted to the early British Settlers in New Zealand, to form a Settlement there; wherefore it is evident their act cannot be regarded as constituting the formal taking of possession necessary to the perfecting of the right by discovery.
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The condition of occupancy closely following upon discovery, seems to be imperative.
"Next as to title by discovery, or, as it has been termed, by an eminent Jurist, 'le droit de premier occupant,' discovery gives an inchoate right, and if discovery be followed by occupation, i.e., occupation 'reellement et de fait,' there can be no doubt but that such an occupation would convey a title equally valid with that of conquest.
"This point merits closer consideration because I am inclined strongly to be of opinion that the English are to be considered as the first discoverers of the Islands of New Zealand, and that, consequently, by such discovery they acquired to themselves a primitive, or, as it were an inchoate right to the occupation and possession of the country.
"But on the other hand, nothing can be clearer to my apprehension than that the Government of England not only abstained from the exercise of any such right, and from the due completion of the title which the early discoverers had acquired for the Crown; but that, on the contrary, they virtually repudiated and abandoned any such title by elevating the Chiefs of New Zealand to the rank and condition of a sovereign power, and thus, by treating and acknowledging them, and their tribes, as component parts of a separate and independent State, they
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placed them on a known position in the great commonwealth of independent States." 2
Notwithstanding that the eminent authorities here cited, make no distinction between newly-found countries which are already populated, and such as are desert and unpeopled, but give to nations discovering them, rights equally over both, they concur in establishing the necessity of occupation's following upon discovery. Hence it would seem that by her non-occupation of New Zealand, Great Britain forfeited the rights which discovery is assumed to have conferred upon her; and doubtless, had the country been unpeopled, such a plea might have been urged against her ultimate acquisition thereof: but as she found the new territory already inhabited, and under the domination of an Aboriginal Sovereignty, to the prejudice of which she could not, by discovery only, acquire any rights whatsoever, we cannot conceive that she can, in point of fact, be said to have forfeited that which she never
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possessed, it having been wholly out of her power, equitably to comply with the conditions whereupon alone her rights could be based, namely; actual occupation and use.
On the other hand we contend, that if simple discovery can be said to confer any right at all, with reference to new countries already peopled, such a right is not inchoative or imperfect, that is, in its beginning, and dependent, to be perfected, upon occupation and use, but is, on the contrary, complete by the very act itself of the discovery, and good against all the world, if good at all. But whilst the natural independence of nations is to be religiously respected, and this without regard to their peculiar internal polity, it seems preposterous to assume that by simple discovery, Great Britain acquired a right of interference to prevent any third nation, to wit, the French or the American, from acquiring, by fair purchase of the Natives, landed possessions in New Zealand, since it is clear that such an interference would have amounted to a limitation of the right of these to sell their lands, or of that of allowing strangers, other than English, to settle in the country. Discovery, however, would have entitled her to interpose her authority in order
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to prevent any third nation from forcibly acquiring territory there; but this right would have emanated from her act of discovery, complete in itself and conferring the perfect right of intervention, without necessity for her occupation and use of a country already in occupancy and in use.
But to resume our argument, we find that not only did Great Britain's rights by discovery become void in consequence of non-occupation, but that she subsequently--namely, thrice within the present century--distinctly recognized New Zealand as not forming any part of the British dominions, the fact being consigned in three separate Parliamentary documents.
The first of these is entitled "An Act for the more effectual punishment of murders and manslaughters committed in places not within His Majesty's dominions." It sets forth that: "Whereas grievous murders and manslaughters have been committed at the settlement in the Bay of Honduras, in South America," &c., "and the like offences have also been committed in the South Pacific Ocean, as well on the high seas as on land, in the Islands of New Zealand and Otaheite, and in other islands, countries, and places not within His Majesty's
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dominions, by the masters and crews of British ships, and other persons, who have for the most part deserted from, or left, their ships, and have continued to live and reside amongst the inhabitants of those islands," &c; and the Act then goes on to provide for the punishment of offences so committed, "in the said islands of New Zealand and Otaheite, or within any other islands, countries, or places not within His Majesty's dominions, nor subject to any other European State or Power," &c. 3
The second enacts that the Supreme Courts in the Colonies of New South Wales and Van Diemen's Land may try offences, "committed in the Islands of New Zealand, Otaheite, or any other island, country, or place, situate in the Indian or Pacific Oceans, and not subject to His Majesty or to any European State," provided such offences were committed by British subjects. 4
The third repeats the foregoing enactment, in two places in the same clause specifying the extent of the jurisdiction of the Courts of
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Judicature in New South Wales and Van Diemen's Land, adding "that all Persons convicted of any of the offences" aforesaid, shall be subject to the same penalties as though they had been committed in England." 5
But, besides the above-cited formal Acts of the Legislature, another, even yet more solemn, fully established the fact that Great Britain regarded the Islands of New Zealand as an independent Foreign State. The circumstances under which this important recognition took place, may best be gathered from the subjoined extract from the letter of James Stephen, Esqre., one of the Under-Secretaries for the Colonies, to John Backhouse, Esqre. It is dated Downing Street, 12th. December, 1838.
"In consequence of representations from the local authorities of New South Wales, it was thought advisable, in the year 1832, to appoint a person in the character of British Resident at New Zealand. The object in making this appointment was two-fold, to repress acts of fraud and aggression practised by British subjects against the natives, and, by acquiring
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a beneficial influence over the various chiefs, to protect the lives and properties of British subjects engaged in fair trade with the natives." 6
The representations alluded to by Mr. Stephen were made in consequence of a letter written by William Yate, Esq., Secretary to the Church Missionary Society at New Zealand, and addressed to the Colonial Secretary in New South Wales. It contained the subjoined document, and urged its transmission "to the Secretary of State, in order to its being laid before His Majesty," 7 King William the IV.
As the document in question is both curious and characteristic, we give it in extenso.
"To King William, the Gracious Chief of England."
"KING WILLIAM.--
"We the Chiefs of New Zealand assembled at this place, called the Kerikeri, write to thee, for we hear that thou art the great chief of the other side the water, since the many ships which come to our land are from thee.
"We are a people without possessions. We have
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nothing but timber, flax, pork, and potatoes, we sell these things, however, to your people, and then we see the property of Europeans. It is only thy land which is liberal towards us. From thee also come the Missionaries who teach us to believe on Jehovah God, and on Jesus Christ his Son.
"We have heard that the tribe of Marian 8 is at hand coming to take away our land, therefore we pray thee to become our friend and the guardian of these islands, lest the teazing of other tribes should come near to us; and lest strangers should come and take away our land.
"And if any of thy people should be troublesome or vicious towards us, (for some persons are living here who have run away from ships,) we pray thee to be angry with them that they may be obedient, lest the anger of the people of this land fall upon them.
"This letter is from us, from the Chiefs of the natives of New Zealand.
"The foregoing is a literal translation of the accompanying document."
(Signed) "WILLIAM YATE
"Secretary to the Church Missionary Society New Zealand."
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To this document the signatures of thirteen Native Chief's were appended.
The result of this communication was a Despatch, dated 14th. June, 1832, from Lord Viscount Goderich, one of the Principal Secretaries of State, addressed, on the part of the King of Great Britain, to the Chiefs of New Zealand.
In this Despatch the King acknowledges the receipt of their letter, expressing his regret that the people of New Zealand should have suffered injury at the hands of his subjects, and it goes on to say, that:
"In order to afford better protection to all classes, both natives of the Island of New Zealand, and British subjects who may proceed or may be already established there for the purposes of trade, the King has sent the bearer of this letter, James Busby, Esq., to reside amonst you, as his Majesty's Resident, whose duties it will be to investigate all complaints which may be made to him. It will also be his endeavour to prevent the arrival amongst you of men who have been guilty of crimes in their own country, and who may effect their escape from the place to which they may have been banished, as likewise to apprehend such persons of this description as may be found at present at large.
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In return for the anxious desire which will be manifested by the British Resident to afford his protection to the inhabitants of New Zealand against any acts of outrage which may be attempted against them by British subjects, it is confidently expected by His Majesty that, on your part, you will render to the Resident that assistance and support, which are calculated to promote the object of his appointment, and to extend to your country all the benefits which it is capable of receiving from its friendship and alliance with Great Britain."
The concluding sentence is most significant, clearly establishing the fact of a compact entered into with New Zealand, as with any civilized and independent State.
Thus accredited, Mr. Busby proceeded to New Zealand, in his capacity of British Resident; and on the 13th. April, 1833, we find the Governor of New South Wales, Sir Richard Bourke, addressing to him, by command of Lord Ripon, certain instructions for his guidance, in which New Zealand is expressly mentioned as a foreign and an independent country.
"You will also announce your intention of remaining among them, and will claim the protection and privileges which you will tell them are accorded,
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in Europe and America, to British subjects holding in foreign states situations similar to yours." 9
"You are aware that you cannot be clothed with any legal power or jurisdiction by virtue of which you might be enabled to arrest British Subjects offending against British or Colonial law in New Zealand. It was proposed to supply this want of power, and to provide for the enforcement of the criminal law, as it exists among ourselves, and further to adapt it to the new and peculiar exigencies of the country to which you are going, by means of a Colonial Act of Council grafted on a Statute of the Imperial Parliament. Circumstances which I am not at present competent to explain, have prevented the enactment of the Statute in question." 10
The circumstances alluded to were simply these: that in the month of June of the preceding year, in 1833, a Bill was brought before the House of Commons, for the prevention of crimes committed by His Majesty's Subjects, "in New Zealand and in other islands in the Pacific, not being within His Majesty's dominions;" this Bill was thrown out, because
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Parliament could not lawfully legislate for a foreign country.
The next step appears to have been the desire of the New Zealanders to possess a flag; accordingly, on the 29th of April 1834, Sir R. Bourke transmitted to Lord Stanley, a proposal from Mr. Busby, for establishing a national flag, for the tribes of New Zealand "in their collective capacity," and advised that ships built in the Island, and registered by the Chiefs, should have their registers respected in their intercourse with the British possessions. Sir R. Bourke reported that he had sent three patterns of flags, one of which had been selected by the Chiefs, that the Chiefs had accordingly assembled, with the Commanders of the British and three American ships, to witness the inauguration of the flag, at which the officers of H.M.S. Alligator were also present. The flag had been declared to be "the National Flag" of New Zealand, and being hoisted, it was saluted with twenty-one guns, by the Alligator, a British ship of war.
Captain Fitzroy furnishes important details in connection with this ceremony; we subjoin an abstract from his evidence before the Com-
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mittee of the House of Lords, 11th. of May, 1838.
"The Alligator went, with Captain Lambert, and Three different Flags were presented to a number of the Chiefs who were assembled, and they chose one of those Flags for their own, with an understanding that Great Britain would acknowledge it, and afford it her Protection."
"You did not understand that the giving them that Flag intimated any Sovereignty on the part of England?"
"No; so far from that, there was a distinct recognition of the Independence of the Chiefs." 11
This statement, be it here said, in conjunction with the report of Sir R. Bourke, palpably refutes the argument of the Rev. S. Hinds, D.D. 12 to the effect "that the very assumption on the part of Great Britain, of a Right to give that Flag, supposes the New Zealanders not to be altogether a Sovereign Power;" and the fact mentioned by Captain
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Fitzroy is fully borne out by the formal declaration of the Independence of their country, which thirty-five of the hereditary Chiefs of the Northern Island made at Waitanga, in the Bay of Islands, on the 28th of October, 1835, and wherein they entreat that His Majesty "will continue to be the Parent of their infant State, and that He will become its Protector from all attempts upon its Independence." 13
The whole of these acts were duly confirmed by the Colonial Government. We find that "on the 21st of December, 1834, a despatch was addressed to Sir R. Bourke by Lord Aberdeen, approving all those proceedings, in the name of the King, and sending a copy of a letter from the Admiralty, stating that they had instructed their officers to give effect to the New Zealand Registers, and to acknowledge and respect the national Flag of New Zealand." 14
The foregoing facts would rather tend to
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prove, notwithstanding the rights over New Zealand which have been asserted for Great Britain, by virtue of simple discovery, that she never considered herself really possessed of any; for it is difficult to conceive she would have relinquished them upon the plea of not desiring to extend her colonial dependencies, when she actually proceeded to annex to these, the territory of New South Wales, Norfolk Island, and other lands which Captain Cook had discovered. Probably--though her claim to New South Wales was not a whit better founded than any she might have advanced in respect to New Zealand--she may have entertained scruples on the score of entering upon the occupancy of a country thickly populated, which scruples could be more conveniently set aside in the case of New South Wales, where the inhabitants were not numerous, and were dispersed over and occupied a very much larger extent of territory: so true is it that weakness is too frequently made a plea for injustice.
We have possibly entered more fully into particulars than the circumstances of the case may seem to have warranted, but it must be borne in remembrance that we are bound to bring forward the completest evidence in sup-
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port of the views we have set forth. We shall add a few words of Lord John Russell's, in his reply to the communication of Joseph Somes, Esqre., to Lord Palmerston, and already once alluded to. In this letter, after recapitulating the various acts above enumerated, and referring to the assumed right of Great Britain to the Sovereignty over New Zealand, his lordship says: 15
"If these solemn Acts of the Parliament, and of the King of Great Britain, are not enough to show that the pretension made by this Company, 16 on behalf of Her Majesty, is unfounded, it might still further be repelled by a minute narrative of all the relations between New Zealand and the adjacent British Colonies, and especially by the judicial decisions of the superior Courts of those Colonies. It is presumed, however, that, after the preceding statement, it would be superfluous to accumulate arguments of that nature, and the rather because they could not be intelligibly stated without entering into long and tedious details."
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We ought not, however, in justice to Mr. Somes, to refuse consideration to the facts he brings forward in support of his assertion of the validity of British Sovereignty over New Zealand; the less so, that he appears, at first sight, to have made out a strong case. We will quote his words:
"In the year 1787, a Royal Commission was granted to Captain Philip, appointing him, in pursuance of the British Sovereignty in possession, which had been established by Captain Cook, 'Captain-General and Governor-in-Chief in and over the Territory of New South Wales and its dependencies. This territory was described in the Commission as, "extending from Cape York, Lat. 11 deg. 37' S.; to the South Cape; Lat. 43 deg. 30' S.; and inland to the Westward as far as 135 deg. E. Long, comprehending all the Islands adjacent in the Pacific Ocean within the latitudes of the above-named Capes.' This is the act by which the Crown first assumed the Government of New South Wales and the other barbarous lands of which Captain Cook had taken possession in the name of the King. The Islands of New Zealand are as clearly within the prescribed limits as Norfolk Island, Van Diemen's Land, or even New South Wales itself.
"On the 9th of November, 1814, the Governor
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and Captain-General of New South Wales and its dependencies, acting on the representation of the Crown, by public proclamation, declared New Zealand to be a Dependency of his Government, and by regular Commission of dedimus potestatem, appointed Justices of the Peace to act there. Some of the Magistrates so appointed were Aboriginal Natives of the country. It is plain that they were treated as British subjects. In 1819, again, Governor Macquarrier appointed an English Magistrate in New Zealand. This Justice of the Peace exercised the authority so bestowed on him, by apprehending offenders and sending them for trial to the seat of Government."
With regard to the first fact advanced, that the degrees of Latitude and Longitude mentioned as comprising the dependencies of New South Wales, included the New Zealand Islands likewise, it proves nothing, because it proves at once too much and too little. "All the islands adjacent, in the Pacific Ocean, within the latitudes" of Cape York and South Cape, would comprehend a jurisdiction extending as far as the West Coast of South America, inclusive of the Spanish discoveries; an assumption of dominion that the Commission
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certainly did not pretend to. On the other hand 43 deg. 30' S. Latitude would exclude the whole of Stewart's Island (New Leinster) and a large portion of the Middle Island, (New Munster) as far North as Pigeon's Bay, on the East Coast, inclusive, of course, of Otago and Bank's Peninsula, and of Dusky Bay on the West Coast. Thus, in the latter respect, the Commission would have fallen as far short of the powers Mr. Somes claims for it, as, in the other case, it would have exceeded them.
In the next place, the above-mentioned gentleman alludes to the appointment of Native Justices of the Peace; and in another, of the enforcement of British Authority by means of ships-of-war. The subsequent acts of the British Government, however, show that nothing more was contemplated than the establishment there of an available power to punish English delinquents who had escaped from the contiguous penal settlements, or deserted from Whalers, and proceeded to commit depredations and offences to the prejudice of the Natives, and who could not have been apprehended without the assistance of the Aborigines, some of whom were, in consequence, armed with a legal authority necessary not less to preserve
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the interests of the British, than to protect their own.
Mr. Somes goes on to state that "in 1823, a British Act of Parliament (4 George IV. cap. 97) 17 extended the jurisdiction of the Courts of New South Wales to New Zealand, by name. Now the 4 George IV. cap. 96. expressly mentions New Zealand as "not being within His Majesty's dominions," as being not subject to any other European State or Power," and yet extends to New Zealand the jurisdiction of the Courts of New South Wales, giving them power to try offenders for crimes committed there, provided that such offenders are British subjects.
Under, these circumstances, we conceive Lord John Russell's reply to Mr. Somes, to be conclusive against any assumption, on the part of the Crown of Great Britain, of Sovereignty over New Zealand, either by discovery or by possession, which Mr. Somes argues the above acts implied.
To return, however, to Mr. Busby, it does not appear that his presence in New Zealand was productive of the advantages which had
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been anticipated; and in consequence of the increasing difficulties of his position, and of his diminishing influence, Sir R. Bourke made a communication to Lord Glenelg, on the 9th of Sept., 1839, enclosing a letter from Captain Hobson, suggesting the necessity of a change of policy. In consequence of this communication, Lord Glenelg entered into correspondence with Viscount Palmerston, Secretary for Foreign Affairs, and the result was the appointment of Captain Hobson in the capacity of Her Majesty's Consul at New Zealand.
If before there had existed a doubt of Great Britain's having never assumed over New Zealand Sovereign rights, by virtue of discovery, this one circumstance would establish the fact beyond dispute. The declaration, however, of the substantive independence and sovereignty of New Zealand was distinctly renewed in the letter of Instructions sent to Captain Hobson from the Marquis of Normanby, on the 14th of August, 1839; but as we shall have occasion immediately to refer more particularly to it, we leave the question decided thus far, as we are now about to enter upon another, and the most important era of the history of these Islands.
