CHAPTER IV.
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CHAPTER IV.
UNDER WHAT CONDITIONS GREAT BRITAIN ACQUIRED THE SOVEREIGNTY OVER NEW ZEALAND.
THE circumstances under which Great Britain finally acquired the Sovereignty over New Zealand, are of such recent occurrence, we might almost be excused from entering into detail, were it not that we desire to present as complete a political history of this interesting Colony, as can be gathered from the published documents referring thereto. And first, then, it would seem, that the various causes which had rendered necessary the including of New Zealand within the jurisdiction of the Courts of New South Wales, and the appointment of a British Resident, existed in undiminished activity--even to an aggravated extent--up to
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the month of August 1839, when we find additional and most cogent reasons supervening, and necessitating, on the part of Great Britain, the adoption of a more decided and definite policy; namely, the nomination of a Consul at New Zealand, armed with special and peculiar powers.
"The first object contemplated in making this appointment," writes the Marquis of Normanby to the Lords Commissioners of the Admiralty, 1st July 1839, 1 "is to obtain from the Native Chiefs the cession to Her Majesty of certain parts of those islands, which it is proposed should be there added to the Colony of New South Wales as a dependency of that government, when Captain Hobson would assume the character of Lieutenant-Governor."
A most important admission, this, not only fully establishing the fact of the previous independence of New Zealand as a State, but showing that the Crown contemplated a definite and particular acquisition of the Sovereignty, proceeding in much the same manner as in a transaction of bargain and sale.
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The reasons which called forth this act of personal intervention, on the part of the British Crown, are exhibited in the Marquis of Normanby's Letter of Instructions to Captain Hobson, dated from Downing-street, Aug. 14, 1839. 2
We append the most important of them:
"It is sufficient that I should generally notice the fact, that a very considerable number of Her Majesty's subjects have already established their residence and effected settlements there, and that many persons in that kingdom have formed themselves into a society, having for its object the acquisition of land, and the removal of emigrants to those islands.
"The necessity for the interposition of the Government has become too evident to admit of any further inaction. The reports which have reached this office within the last few months, establish the facts, that about the commencement of the year 1838, a body of not less than two thousand British Subjects had become permanent inhabitants of New Zealand; that amongst them were many persons of bad or doubtful character--convicts who had fled from our penal settlements, or seamen who had de-
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serted their ships; and that these people, unrestrained by any law, and amenable to no tribunals, were alternately the authors and the victims of every species of crime and outrage. It further appears that extensive cessions of land have been obtained from the natives, and that several hundred persons have recently sailed from this country to occupy and cultivate those lands. The spirit of adventure having thus been effectually roused, 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 amongst them a settled form of civil government. To accomplish this design is the principal object of your mission."
His Lordship then makes the following qualified admission of the independence of the New Zealand Islands:
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"I have already stated that we acknowledged New Zealand as a sovereign and independent state, so far as it is possible to make that acknowledgment in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty's immediate predecessor, disclaims for herself and for her subjects, every pretension to seize on the islands of New Zealand, or to govern them as part of the dominion of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, shall be first obtained. Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious, and little more than nominal, and persuaded that the benefit of British protection, and of laws administered by British judges, would far more than compensate for the sacrifice by the natives, of a national independence, which they are no longer able to maintain, Her Majesty's Government have resolved to authorize you to treat with the Aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole or any part of those islands
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which they may be willing to place under her Majesty's dominions."
With reference to the introductory sentence of the foregoing paragraph, we cannot but observe that this qualified admission of the independence of the New Zealanders, appears to us uncalled for; and to have implied, on the part of the Government, some after-thought as to its validity, simply on the ground of an assumed imperfect organization of the natives as a people; and although Lord Normanby does indeed presently assert such an admission to be "binding on the faith of the British Crown," he persists in qualifying it, in spite of Vattel and other learned Jurists who have written on the Law of Nations, and who maintain that the independence and the natural rights of any Aboriginal people cannot be in the slightest degree affected or be prejudiced, in their intercourse with civilized nations, whose perfect political equals they are, from the moment that they govern themselves without foreign interference.
In adverting, secondly, to the solemn declaration made by the officer of the Crown, namely; that the Sovereign of Great Britain
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disclaimed "for herself and for her subjects, every pretension to seize on the islands of New Zealand, without the free and intelligent consent of the Natives," we wish this fact to be particularly borne in mind, as we shall presently have to bring it into antagonism with the conduct of certain officials who were employed to carry out the foregoing instructions, and with the modifications with which they appear to have been subsequently trammelled. To the latter we shall confine ourselves.
It would appear then, that Captain Hobson experienced some degree of embarrassment when he came to consider the tenor of his instructions, and with a view to dispel his doubt, and to obviate misunderstandings, wrote for explanations to Mr. Labouchere, the Under-Secretary of the Colonial Department. The following are extracts from his letter: 3
"I perceive," he writes, "that no distinction is made between the Northern and Southern Islands of New Zealand, although their relations with this country, and their respective advancement towards civilization are essentially different.
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"The declaration of the independence of New Zealand was signed by the united chiefs of the Northern islands only, (in fact, only of the northern part of that island) and it was to them alone that His late Majesty's letter was addressed on the presentation of their flag; and neither of these instruments had any application whatever to the Southern Islands. It may be of vast importance to keep this distinction in view. Not as regards the natives, towards whom the same measure of justice must be dispensed however their allegiance may have been obtained: but as it may apply to British Settlers, who claim a title to property in New Zealand, as in a free and independent State.
"I need not exemplify here the uses that may hereafter be made of this difference in their condition; but it is obvious that the power of the Crown may be exercised with much greater freedom in a country over which it possesses all the rights that are usually assumed by first discoverers, than in an adjoining State which has been recognized as free and independent. In the course of my negotiations, too, my proceedings may be greatly facilitated by availing myself of this disparity. For, with the wild savages in the Southern islands, it appears scarcely possible to observe even the form of a treaty, and there I might be permitted to plant the British flag in virtue of those rights of the Crown to which I have alluded."
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In answer to the foregoing observations, the Marquis of Normanby writes thus to Captain Hobson: 4
"The remarks which I have made respecting the independence of the people of New Zealand, relate, as you correctly suppose, to the tribes inhabiting the northern island only. Our information respecting the southern island is too imperfect to allow me to address to you any definite instructions as to the course to be pursued there. If the country is really as you suppose, uninhabited, except but by a very small number of persons in a savage state, incapable from their ignorance of entering intelligently into any treaties with the Crown, I agree with you that the ceremonial of making such engagements with them would be a mere illusion and pretence which ought to be avoided. The circumstances noticed in my instructions, may perhaps render the occupation of the Southern island a matter of necessity, or of duty to the natives. The only chance of an effective protection will probably be found in the establishment by treaty, if that be possible, or if not, then in the assertion, on the ground of discovery, of her Majesty's Sovereign rights over the island. But in my inevitable ignorance of the real state of the case,
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I must refer the decision in the first instance to your own discretion, aided by the advice you will receive from the Governor of New South Wales."
Now there cannot exist the shadow of a doubt but that the noble Marquis and Captain Hobson were actuated by humane motives, the one in drawing up these instructions, the other in his desire to have them explicitly defined; but it is not less clear that both erred in sound policy, in departing from the strict principles of equity which the Law of Nations defines as the only true and legitimate basis of the political relations of one independent state with another; and this we hold that they did when they introduced the above modifications into the instructions by which Captain Hobson was to abide.
Setting aside, in the first place, the question of the declaration of independence, which clearly comprised only such Chiefs and Tribes as were parties thereto; and in the second, the qualified admission of the independent rights of the Natives of the Islands, generally; no plea could possibly invalidate or annul the solemn repudiation "of all pretension on the part of Her Majesty, to seize upon the islands of New
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Zealand and govern them, without the intelligent consent of the natives." Yet, in the face of this solemn declaration, and dependent only upon the possibility of concluding a treaty with the Natives of the Southern islands--who were merely presumed to be incompetent to understand its tendency--we perceive that Sovereign rights, on the plea of discovery, were assumed over them, and implied to be only in abeyance.
Now we have proved that no such rights ever justly belonged to Great Britain; on the other hand, we arrive at a knowledge of the nature of that right by discovery which has been qualified as inchoate, that is, imperfect; namely, that it is assumed to be a Sovereign right; consequently, if it were valid at all, it was good not only against third parties, but against the Natives themselves, and to the prejudice of their natural Sovereignty.
We do not hesitate to assert that such an assumption is opposed to the spirit of the Law of Nations, and being enforced, amounts to a gross infraction of it.
We are, indeed, wholly at a loss to comprehend by what subtle reasoning the noble Secretary of State for the Colonies arrived at the conclusion, on the 15th August, that the
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Crown of Great Britain had, over the Southern Islands of New Zealand, latent rights by discovery which, under certain conditions, Captain Hobson was to assert, after he, (Lord Normanby) had solemly disclaimed, only on the 14th of the same month, every pretension on the part of Her Majesty, "to seize upon the Islands of New Zealand, and to govern them, without the consent of the Natives." Still less can we understand why, if the Crown possessed any such rights at all, they were to be asserted over only those parts of New Zealand, which were presumed to be thinly peopled, and by less intelligent tribes, when these rights, if valid at all, were equally so over the Northern Island, save and except such portions of it as were under the the jurisdiction of the Chiefs and Tribes comprised in the declaration of independence.
The importance of the distinction between the islands, which Captain Hobson urged, affected more immediately, as it would seem, the British Settlers who claimed property in New Zealand as in a free and independent State; but its first effect would have been to create an anomaly in the position of British subjects there, embarrassing to themselves, and most
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perplexing to the shrewd Natives, who having in every case sold the land, since many possessed territory in both Islands, might naturally enough fail to comprehend how they could be Sovereign in one part of their country, yet have no rights at all in another, though both portions belonged to them. It appears to us that this was establishing, at the very outset, an insuperable bar to the dispensing of "the same measure of justice" towards the Natives, inasmuch as in the one case they were to become British subjects by cession, and in the second, British subjects by compulsion. On the other hand, it was poor earnest of the "effective protection," Natives were to have secured to them by the assumption of British Sovereignty, the most apparent result of which, in Aboriginal Legislation, has hitherto been the deeper debasement, the vitiation, and finally the extinction of Native Races.
To compensate, in some degree, for these anomalies and contradictions, without doubt arising from the perplexity of the position and from the open antagonism between principle and colonial policy, less than from any wilful intent, of prejudicing the New Zealanders, Captain Hobson was specially urged to act
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with candour and unreserve, having indeed been chosen in consequence of the firm reliance reposed in his "uprightness and fair-dealing;" and it must be admitted that his task was a difficult one; for the line of conduct he had to observe, was not reconcileable to the strict principles of equity which ought to form the basis of inter-national policy, more particularly with reference to Aboriginal Races, who are less able to resist encroachment upon their natural rights, of which they entertain a very clear appreciation, notwithstanding their inability at all times to define them to the satisfaction of subtle, political Theorists.
The next important subject to which the instructions to Captain Hobson referred, was the acquisition of lands, by British subjects:
"It is further necessary," writes the Marquis of Normanby, "that the Chiefs should be induced if possible, to contract with you, as representing Her Majesty, that henceforward no lands shall be ceded, either gratuitously or otherwise, except to the Crown of Great Britain."
His Lordship then briefly adverts to the
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reasons which rendered this proceeding necessary, and adds:
"You will, therefore, immediately on your arrival, announce, by a proclamation addressed to all the Queen's subjects in New Zealand, that Her Majesty will not acknowledge as valid, any title to land which either has been, or shall be hereafter acquired, in that country, which is not either derived from, or confirmed by, a grant to be made in Her Majesty's name, and on her behalf. You will, however, at the same time, take care to dispel any apprehensions which may be created in the minds of the Settlers, that it is intended to dispossess the owners of any property which has been acquired on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community."
The object of this arrangement was to strike a fatal blow at the system of land-jobbing by wholesale which obtained in New Zealand, and the result of which was the acquisition of immense tracts that remained "an unprofitable or rather a pernicious waste." It was likewise intended to operate as a check upon the proceedings of a certain powerful Colonizing Association at home, under whose auspices large numbers of Emigrants were being transported to New Zealand, there to
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form Settlements; and this, in spite of the announcement made by the Government that such a course was irregular, and contrary to Law.
His Lordship having further elaborated upon this particular point, furnishes Captain Hobson with very definite instructions relatively to the mode in which he was to acquire for the Crown, the waste lands of the country; and to this portion of his Lordship's letter, we would call the attention of the Reader, as we shall have occasion to recur to the subject, when we come to treat of the New Zealand Charter, and of the document that accompanied it.
The noble Marquis thus continues:
"Having, by these methods, obviated the dangers 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 New Zealand. All such contracts should be made by yourself, through the intervention of an officer expressly appointed to watch over the interests of the Aborigines as their protector. The re-sales of the purchases that may be made, will provide the funds necessary for future acquisitions; and beyond the original investment of a comparatively small
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sum of money, no other resource will be necessary for this purpose. I thus assume that the price to be paid to the natives by the local Government will bear an exceedingly small proportion to the price for which the same lands will be re-sold by the Government to the Settlers. Nor is there any real injustice in this inequality. To the natives, or their chiefs, much of the land is of no actual use, and, in their hands it possesses scarcely any exchangeable value. Much of it must long remain useless, even in the hands of the British Government also, but its value in exchange will be first created, and then progressively increased, by the introduction of capital, and of Settlers from this country. In the benefits of that increase the natives themselves will gradually participate.
"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 Sub-
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jects must be confined to such districts as the natives can alienate, without distress or serious inconvenience to themselves. To secure the observance of this--will be one of the first duties of their official protector."
We have quoted at length the foregoing portion of his Lordship's instructions, because of the great importance that the matter to which they refer subsequently assumed, and which continues to be a fruitful source of contention. Comment upon them would be superfluous here, for the reasons given above; we will therefore advert succinctly to the remaining points comprised in this document.
Reference being made to the inconvenience of then giving a separate constitution to New Zealand, it was determined to annex to New South Wales, as a dependency of the latter Government, whatever territories in New Zealand might be acquired in Sovereignty by the Queen of Great Britain, specially exempting the new Colony from ever becoming a penal settlement. Under Her Majesty's sign manual, Captain Hobson was to be constituted Lieutenant-Governor of that part of the New South Wales colony which might be thus ex-
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tended, and certain other functionaries were to be nominated for the convenience and the transaction of public business. The education and the religious instruction of the Natives were likewise provided for, under a series of heads of enactments, commendable as much on account of their comprehensive character, as for their liberality and large humanity of principle; the discharge of the most responsible portion of these duties being delegated to the Missionaries, under the direction of the Lieutenant-Governor, who was strictly enjoined to interdict cannabalism and human sacrifice, and to adopt, in conjunction with the Missionaries, every possible means of elevating the Natives in the social scale. Various other topics on diverse matters were also briefly adverted to, the Marquis of Normanby abstaining to enter into detail, and to speak definitively upon these subjects, on which, for want of the necessary information, he felt incompetent to form an opinion; wherefore, relying upon Captain Hobson's judgment, zeal, and experience, aided by the counsels of Sir George Gipps, Governor of New South Wales, his Lordship finally left, to Captain Hobson's discretion, the arrangement of all such questions as could not then be resolved.
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We have already shown, that in some respects, Captain Hobson did not consider his instructions sufficiently explicit, and requested explanations. It is not, however, necessary that we should enter into detail upon this head, having already alluded to the most important of the points respecting which his doubts had arisen. Suffice it to add, that Captain Hobson having received satisfactory replies to his special queries, departed upon his mission.
