APPENDIX A.
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APPENDIX.
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APPENDIX
TO THE
NEW ZEALAND QUESTION
BEING THE
OPINIONS THEREUPON
OF
JOSEPH PHILLIMORE, ESQ., D.C.L.
AND
SHIRLEY F. WOOLMER, ESQ.,
OF THE MIDDLE TEMPLE,
BARRISTER-AT-LAW.
LONDON:
THOMAS CAUTLEY NEWBY, PUBLISHER,
72, MORTIMER ST., CAVENDISH SQ.
1848.
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PREFATORY.
THE Opinions which follow were in reply to certain Queries propounded by the Aborigines' Protection Society, on behalf of the Natives of New Zealand, with a view to the establishment of a few leading points:
1st. In reference to their proprietary rights; as also to any others which, it was assumed, they might have reserved, under the Treaty of Waitangi:
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2ndly. In reference to the rights of the British Crown, under the same Treaty: and
3rdly. In reference to the general principles of Inter-national Law, which regulate, or, in a measure, determine the conduct of a Civilized Nation, in its political intercourse with Native and independent Tribes.
LOUIS ALEXIS CHAMEROVZOW,
ASSISTANT-SECRETARY,
ABORIGINES' PROTECTION SOCIETY.
Camberwell, 1st. May, 1848.
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THE NEW ZEALAND QUESTION.
OPINION OF JOSEPH PHILLIMORE, ESQ. D.C.L.
THE questions propounded in this Case are not free from intrinsic difficulty, and such difficulty is further enhanced by the voluminous and undigested materials with which they have (necessarily perhaps) been mixed up and encumbered--still, from the best consideration I have been able to apply to them, I have been led to conclusions which, I trust, are neither ambiguous nor obscure.
For reasons which will appear in the sequel, it does not seem essential that I should preface
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my Opinion with definitions of any of the abstract points of law which have been mooted in the several documents laid before me, although it may be assistant to the elucidation of the subject, to advert in passing on to the main point (on which I conceive the solution of the primary question to hinge) to the possible modes by which Great Britain might have acquired a title to the possession and sovereignty of the Islands of New Zealand. Such a title, I apprehend, might have been acquired:
1st. By Conquest.
2nd. By Discovery followed up by occupation--or
3rd. By Treaty.
The Law of Nations acknowledges no more complete title than that of effectual and permanent conquest, but I can discover no fact in the present case which could have the effect of establishing a title of conquest.
Next as to title by discovery, or, as it has been termed, by an eminent Jurist, "le droit du 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
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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 placed them on a known position in the great commonwealth of independent States.
For example.--The British Legislature, by successive Acts of Parliament, has declared
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the Islands of New Zealand, "not to be within the King's dominions," "not to be subject to the Crown of England," or "to any other European State."
Again in 1831, William IV. recognized New Zealand as a substantive and independent State, which he announced to the world by a public and solemn declaration.
And in 1839 her present Majesty accredited a Minister to the native Chiefs of New Zealand, and invested him with full powers to negotiate and conclude a treaty with them.
Under this statement of facts, I am led to the conviction that Great Britain could not, in any Court of the Law of Nations, have a substantiated claim to the occupation of New Zealand, on the mere ground of discovery and possession.
In my judgment the claim of the British Nation to the Sovereignty over the Islands of New Zealand rests on compact; i. e. on a Treaty inscribed in the code of public law which was executed at Waitangi, on the 6th February 1840.
By this Treaty the Queen of England is invested with all the rights and powers of Sovereignty within the Islands of New Zealand,
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she in return guaranteeing to the chiefs, and native tribes, their families, and all individuals belonging to them, the full, exclusive and undisturbed possession of their lands, estates, forests, fisheries, and other properties which they might possess collectively or individually, so long as they might wish or desire to retain them in their own possession, but conceding to the Queen the exclusive right of pre-emption over such lands as the proprietors might be disposed to alienate, and (subject to this restriction alone) the natives of New Zealand are invested with all the rights and privileges of British subjects.
Of the validity of this Treaty no one at all versed in the science of public law can entertain a doubt. It possesses all the ingredients which Writers on the Law of Nations deem essential to establish the validity of such a compact--"s'il n'y a point de vice dans la maniere en laquelle il a ete conclu," (to borrow the definition of Vattel,) "et pour cela on ne peut exiger autre chose qu'un pouvoir suffisant dans les parties contractantes et leur consentement mutuel suffisament declare." Liv. 2. c. 12. sec. 27.
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It is laid deep in the unalterable foundation of natural law, that the party who promises, conveys a perfect right to the party to whom the promise is made, to compel the execution of that promise.
This principle is as applicable to States as it is to individuals, and if Great Britain were to recede from the obligations she has contracted by the signature of the treaty in question, she would justly expose herself to the imputation of being guilty of a breach of public faith, inasmuch as there is no principle of public law more universally received and acknowledged, than the perfect equality and entire independence of all distinct and separate States.
"Relative magnitude," says one of the greatest expounders of the Law of Nations, who has existed in our days "Relative magnitude (of States) creates no distinction of right. Relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbour--and any advantage seized on that ground is mere usurpation. This," (he adds) "is the great foundation of public law, which it mainly concerns the peace of
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mankind, both in their public and private capacities, to preserve inviolate." "Le Louis, Adm. Rep. page 213."
On full consideration, therefore, I am clearly of opinion that the Treaty of Waitangi is of binding obligation on the two contracting parties, and that it is to be considered as the corner stone, on which all our relations, with the Islands of New Zealand, must be founded.
It is equally clear to me that there is nothing on the face of the treaty which requires interpretation; but if any interpretation of any seeming ambiguity should be required, all the rules applicable to construction would exact that it should be given in favor of the State making the concession, especially in a case where the practised intelligence and varied experience of the one contracting party is contrasted with the primitive simplicity and rude inexperience of the other. The British negotiator had the selection of his own terms, and it is according to the well-known principle of the Roman law "pactionem obscuram vel ambiguam iis nocere in quorum fuit potestate legem apertius condere." Dis. 2. lit. 14. de pactis.
So again the reservation (ample as it is in
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terms) of lands, estates, forests, fisheries, and other properties is, I think, to be construed with every latitude of explanation which the ordinary acceptance and use of the words will admit, and I can discover no principle on which a known and well-defined 1 boundary should not be respected, nor any reason why property of what description soever, within the range of any such well-defined boundary, should be excluded from the privileges of the treaty, more than land which may be entirely enclosed in an actual state of cultivation.
On the other hand, it appears to me equally clear, that all property, which is without an Owner, and which may be considered as res nullius--and all bona vacantia, through the several Islands of New Zealand, has vested in the Queen in right of her Sovereignty, not because we are to assume (as has been suggested by some) that the inhabitants of Islands, so entirely separated from all intercourse with European States, were bound by the distinctions of allodial and feudal property, or that
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they could be supposed to hold land by such tenures as we derive from our Gothic ancestors, but because it is in accordance with the general law and practise of Nations, that all property without an owner should vest in the Sovereign power of the State, and such Sovereign power, in conformity with the stipulations of the treaty in question, is the Queen of England.
My attention has been especially directed to that Clause in the Treaty of Waitangi which secures to the Queen of England the exclusive right of pre-emption over such lands as the proprietors may be disposed to alienate, and I am asked what is the meaning of the word "pre-emption."
The term "pre-emption" is of familiar occurrence in that system of jurisprudence which regulates the intercourse of independent States, and the experience of many years passed in the practice of the High Court of Admiralty in England, would have led me to have returned a prompt and unhesitating answer to the question thus put; but that the respect I felt due to one of the learned persons who decided the case of "The Queen v. Symonds," (Blue Book, C. page 66.,) and the
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distrust I had of my own judgment, opposed as it is, in the present instance to his, caused me to pause and reconsider the question. Still the more I have done so, the more strongly I am led to the result, that the word "pre-emption" has a known and definite meaning--but I cannot consider that its legal import differs from its philological sense, or that any expounder of the Treaty of Waitangi has a right to assume that this term was casually or inadvertently introduced into that instrument. Indeed, I know of no more accurate definition of the term "pre-emption," than that which was given by Sir William Scott (afterwards Lord Stowell,) in the case of "The Haabet," 2 Robinsons Rep. page 182--a right to purchase upon a reasonable compensation to the individual to whom the property belongs.
The true construction then I take to be, that the Crown has acquired a right to purchase the fee simple of all lands in New Zealand, which fall within the scope of the Treaty--in preference to, and exclusive of any other individual--but if the Crown should decline to purchase, I am at a loss to ascertain by what rule of law the native proprietor, to whom the
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treaty has imparted all the rights and privileges of a British subject, can be barred from disposing of his property by sale to any one of his fellow-subjects.
In a case of this description, where the rights and obligations of the respective parties are secured and guaranteed by special compact, I hardly see how we are called upon to discuss the abstract indefeasible privilege of the Crown (to whatever extent it may prevail) to acquire for itself any territory which may be discovered or conquered by British subjects, because we are not here dealing with a newly-discovered, or newly-conquered country, but with a State capable of entering into diplomatic relations with Great Britain.
Thus far my observations have been exclusively confined to the treaty.
But my opinion is pressed for on points dehors the treaty.
I am asked whether the treaty is of binding obligation on all the chiefs and tribes of the several Islands which compose the Country of New Zealand?
Prima faciae, I should say that it was, and that, for obvious reasons of justice and policy, every endeavour should be made to establish
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such to be the sound interpretation of the treaty.
The proclamation of Governor Hobson, himself a contracting party to the treaty, issued, within a few months after the date of it, to the inhabitants of the northern 2 Island is evidence that he considered it applicable to all the chiefs of the several Islands.
But if there really be independent chiefs and tribes, who are no parties to the treaty, who were never cited to Waitangi, and by no latitude of interpretation can be considered to have been represented at the National Congress, which was holden at that place, and who, moreover, have always refused to give in their adherence to that treaty--it assuredly may happen that the independent chiefs and tribes, thus circumstanced, may not be bound by the obligations of that treaty, and, consequently, may be entitled to distinct and separate considerations from those which apply to the other districts in these Islands.
If any such there be, it is clear, I think, that they ought to be permitted to continue in
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the peaceful occupation and enjoyment of their respective properties.
It is asked, however, "How is their property to be defined?" "Are the lands and forests which they hold and occupy, but which they do not cultivate, entitled to fall within the range of such an appellation?" and further, "Are not the true criteria for deciding this point laid down in the writings of Dr. Arnold?"
In the first place, notwithstanding all the respect I entertain for Dr. Arnold, I cannot consider his opinion to be of overwhelming authority on a question of this nature.
Secondly. In the passages to which I have been referred, it was obviously no part of the intentions of that learned person to consider or discuss any abstract proposition of public law, and it is hardly fair (I say so with all deference) to stamp a statement which flows from him in the form and style of an historical narrative, with the authority of a deliberate and juridical decision.
If the course of Dr. Arnold's studies had led him to a more intimate acquaintance with the science of public law, and if he had
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consulted the many disquisitions which the labours of Jurists have accumulated on this subject, it is very probable, I think, that his decision ex cathedra would have been very different from that which is to be inferred from the tenor of passages in his writings to which I have been referred.
It is obvious that if his doctrine were pushed to the full extent in the present instance, it might lead to usurpation and injustice, as it might be made use of to dispossess independent chiefs and native tribes from property occupied by them and their ancestors for successive generations, although they have hitherto neither bestowed-labor nor cultivation on their lands.
From the best consideration I have been able to apply to this branch of the case, I incline strongly to the opinion of the eminent persons who hold, that the right of property is the same in all men. That such right can neither be modified nor altered by difference of religion, nor by difference of customs and manners--and finally, that the law of Nature--the just and only true source of the Law of Nations--never conferred a right on
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Christian Countries to wrest, forcibly, from their actual possessors, and to appropriate to themselves, lands and districts effectually and permanently occupied by savage Nations.--See Martens precis du droit des Gens. liv. 2. C. 2. c. 1. sn. 117.--and the notes in which most of the authorities on this question are referred.
JOSEPH PHILLIMORE.
Doctor's Commons,
23rd. of March, 1848.
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OPINION OF
SHIRLEY F. WOOLMER, ESQ.
FROM the importance of the subject, and the wide range and variety of the questions proposed, it will be desirable, so far as possible, to ascertain some leading points to which such general principles of Law as may assist the enquiry, can be applied, and to which the various queries proposed may be referred, without attempting a separate answer to each; and from the peculiarity of the circumstances, the legal opinion to be offered must be received as it may be found to be in accordance with, and supported by, such general principles of Law.
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The documents submitted, from which the facts of the case are to be collected, are the numerous papers relative to New Zealand which have been published by order of the Legislature, and a variety of other written and printed documents.
This Mass of materials I have examined, and the principal points for consideration appear to be the relative rights of the Crown of England and of the Natives of New Zealand, under the state of circumstances at present existing between the countries, in relation to the Territorial and the Proprietary rights to large portions of land in New Zealand, and particularly as to waste lands in that settlement.
The Islands of New Zealand are supposed to have been discovered as early as the 16th Century, but it was not until 1769--70 that Captain Cook took possession of them in the name of the Crown of England, with the customary formalities. 3
In the year 1787 it was deemed expedient by the English Government to
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declare New Zealand to be a part of the settlement of New South Wales. 4
There are general laws adopted by European Nations, in reference to Countries which, from their not being part of the Ancient and recognized system of international polity, are called newly-discovered Countries, when found by Voyagers and travellers of different nations.
The law of Nations has recognised the capacity of acquiring the Sovereignty over another Nation, by certain given acts; and certain rules and principles are considered as the bases in accordance with which all civilized Nations not only are agreed to proceed, and to which they will conform in regard to each other, but which they will observe also in regard to the Inhabitants of such Countries as may be the subject of acquisition.
Thus the dominion or Sovereignty of a newly-discovered Country, may be acquired by the following modes:--
By Discovery and Occupation.
By Conquest.
By Cession.
The right by discovery only, without occupation,
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is an imperfect right, being good as against third parties, but it confers no right as against the Natives. It is an inchoate right only, which is perfected by occupation. On this subject Vattel in the treatise on the law of Nations thus writes. 5
"All mankind have an equal right to the things that have not yet fallen into the possession of any one; and these things belong to the first possessor. When therefore a Nation finds a Country uninhabited and without a Master, it may lawfully take possession of it: and after it has sufficiently made known its will in this respect, it cannot be deprived of it by another."
"But it is questioned whether a Nation may thus appropriate to itself, by merely taking possession of a Country which it does not really occupy, and in this manner reserve to itself much more than it is able to people or cultivate. It is not difficult to determine that such a pretension would be absolutely contrary to the Law, and opposite to the views, of Nature, which appointing all the earth to supply the wants of man in general, gave to no Nation the
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right of appropriating to itself a Country but for the use it makes of it, and not to hinder others from improving it. The law of nations then only acknowledges the property and sovereignty of a nation over uninhabited Countries of which they shall really and in fact take possession, in which they shall form settlements, or of which they shall make actual use." 6
The grant made by the Pope to King Ferdinand and Queen Isabella of Spain, of the new world discovered by Columbus--The Bull of Pope Nicholas giving the Empire of Guinea to the King of Portugal, and the commission of Queen Elizabeth to Sir Walter Raleigh, are illustrative of the powers claimed at those times by Christian Princes, in reference to Countries to be discovered, and of the authorities given by such Princes to those commissioned by them.
A question may be raised as to what are the rights which belong to uncivilized nations inhabiting large tracts of country, only small portions whereof are brought into use by them, or where erratic tribes pass from one region to another.
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Some writers contend that the cultivation of the earth is an obligation placed by Nature on mankind, on failure of which those who will not cultivate it may be displaced by those who will.
Vattel appears to consider that the natives of such uncultivated Countries, cannot keep exclusively to themselves more of the soil than they have necessity for; and they are in condition to inhabit and cultivate; and that their fluctuating and transitory occupation of parts of immense regions, cannot be received as a true and legitimate taking possession; and he is therefore of opinion that the people of Europe, too straightened at home, finding a land of which the natives have no particular (that is individual or appropriated) need, and of which they make no actual and continual use, can legitimately occupy it and establish colonies therein. 7
In reply to this view it may be asked, ought not proofs to be required, by way of condition precedent, that the people of Europe were really too straightened at home, before a legitimate title to foreign lands in which there were
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Aboriginal Inhabitants could be justly claimed?
The Islands of New Zealand were, as to some large portions, already occupied when they were discovered, and the Aborginal Inhabitants had therefore certain rights; and it is not merely because large tracts of land are found still unoccupied in uncivilized Countries, that they can for that reason be claimed by discovering Nations, although of European origin.
"If in a Country which has been occupied generally (en gros) there remains some portion which may not have 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, the people or the King. Such is in general the owner-ship of rivers, lakes, fish-ponds, forests, and rugged and uncultivated mountains. 8
"It is also unjust to appropriate to one's-self things which are in the posssession of another under the pretext of having discovered them, and that even when their possessor should be a wicked man or entertain false sentiments with
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regard to the Divinity, or be naturally stupid; for one can only appropriate to one's-self, by right of discovery, that which belongs to nobody."
"When mankind first began to separate into many families, distinct dominions were doubtlessly settled by divisions."
"After this division, he is said originally to acquire a thing lying void and without a possessor, who happens to be the most early occupant of it; he who lays hold on such a thing before others, or gets the start of him in putting in his claim to it." 9
And the word "occupare," to occupy or possess, from which the term is derived, is in some cases used with the signification of "proevenire" to occupy or engage before, or to anticipate others.
It seems to be admitted by writers of authority on this subject, that the right of discovery alone, thus gives to the discovering nation, no more than a preferable right of occupation, to the exclusion of other nations who
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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.
If on the one side Vattel's view be adopted as to the rights of European nations, the converse of the proposition would certainly be true on the other; that the natives of such regions can justly retain to themselves all of the soil that they can occupy, or for which any use or necessity could exist in reference to their usages, wants, or method of life.
Amongst the Questions which arise from the relations between Great Britain and New Zealand, it would be important to examine what are the rights which the Crown of England acquired in reference to those Islands, by discovery and occupation;--and how far they have extended;--and whether they have been renounced as to all or any parts of the Islands;--and what are the legal consequences of any such re-
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nunciation;--and if renounced, what rights have been acquired, or responsibilities incurred by subsequent acts; but it would require too elaborate and extensive an Examination, to reply to all these points; but consideration may readily be given to some of the prominent particulars.
It must be admitted, on the principles of law before stated, that certain rights were acquired by the British Crown in reference to the Islands of New Zealand, by discovery; and that the Crown assumed attributes of Sovereignty over those Islands when it included them among the Dependencies of the British Crown, and placed them within the Jurisdiction of the Government of New South Wales, which appears to have been done by an Order of Council, dated 6th December 1786; and the King's Warrant, dated the 3rd. April 1787. 10
It does not appear that the Crown at that time acquired the ownership or Dominion over the Island by any actual occupation; such occupation must be a formal Act of the Crown-- some settlement must be formed under its auspices, or it must in some way be identified with
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the taking of possession, in order to make it a Public Act--For the mere purchase or acquirement of certain lands by a few individual subjects of the Crown, is not a taking of possession of the Country on behalf of the Crown.
Further, no person or body of persons are by the law of England allowed to found a Colony without a license from the Crown, and therefore if any such e.g., the Missionaries, Whalers, &c., had purchased extensive tracts, founded a town, &c., these are individual acts only, and do not operate as a taking of possession by the discovering State.
Unless, therefore, the Crown, by some public act, had taken actual possession, accompanied by actual occupation of the Islands of New Zealand, it would not appear to have complied with the requisites laid down by Vattel, which would alone have perfected the right arising from discovery. That this doctrine is correct, further appears from Vattel who restricts the proprietary and sovereign rights of the discovering nation to "Those vacant Lands which it occupies really, and in fact." 11
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It appears then that the Crown of England had, by virtue of discovery, acquired inchoate rights only, which had not been perfected by occupation, and that these inchoate rights extended over New Zealand, by which general name are designated the three islands forming the group.
Let us now examine whether these rights have been renounced either as to all or any part of the Islands.
The British Crown having formerly included New Zealand as part of its possessions, it appears that subsequently its independence has been acknowledged by several acts of Parliament; and on the 14th of June, 1832, King William IV., made a public and solemn declaration that New Zealand was a substantive and independent state. 12
In January, 1837, New Zealand was again formally acknowledged as independent; a Consul or Resident was sent thither by the British Government, and a National flag allowed.
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In 1841, Her Majesty created New Zealand a Colony separate and independent of New South Wales.
Its independence has further been recognised by successive Colonial Ministers, in various documents, despatches and state papers. 13
What rights then had the Crown acquired between the discovery of the Islands and the recognition of their independence.
By discovery, as we have seen, the Crown acquired the right of pre-occupation, to the exclusion of other discoverers, provided actual occupation followed: a right of pre-occupation, I consider, not of all the lands in the country, but of all lands not appropriated and occupied by the natives. The Crown exercised this right go far as Sovereignty was concerned.
When the Crown declared New Zealand to be an independent state, the declaration was not
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confined to any specified part, but the general term of "New Zealand," was employed.
It appears, however, that some still consider that the rights of the Crown--at least to some portions--are based on discovery; and especial reference has been made to the Southern or middle Island.
But the operation of the treaty of Waitangi over the middle or Southern island, (New Munster) would appear to have been recognised by the Crown in sanctioning the purchase of the Otakau, or Otago, district of the natives.
The recognition of the independence of New Zealand would appear, therefore, to be a renunciation of the rights of the Crown in New Zealand, so far as they might have then existed, and arising from mere discovery or temporary and imperfect occupation; unless kept in force by some other public act, for: rights acquired by possession cease among nations as among individuals, particularly by voluntary resignation, by cession, or by a total decay of the thing possessed. 14
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And I find that a declaration of Sovereignty of the Crown of Britain, over certain parts of the Island, by right of discovery, was made on the 5th of June, 1840, which was after the treaty of Waitangi, and such declaration was doubtless made to keep alive the claim by discovery, if such portion should not come within the operation of the treaty by cession. 15
The position of circumstances thus arising, is probably without a precedent, and I do not find any precise doctrines referrable to it, in any of the writers on National Law.
The rights claimed by the Crown having been exercised thus far, do not appear, up to that time, to have received the recognition of the New Zealand people; the renunciation of such rights would therefore have no immediate effect as to the New Zealand nation. The New Zealanders, as a people, continued to be in the same condition in which they would have been had neither of these acts taken place; they were independent before, and they were recognised as independent by the English Government; but a different consequence might arise from the renunciation of its rights by the British Crown
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as regards other nations; and accordingly, we find that the English Governments doubtless for important reasons, resolved to take decided steps, which should be recognised to be valid by all European nations, for effectually annexing the New Zealand Islands to the British Crown.
In 1839, Mr. Hobson was instructed to proceed to New Zealand for the purpose of obtaining, if possible, a cession from the Chiefs; but "the assumption of any authority beyond that attaching to a British Consulate, was strictly contingent upon the indispensable preliminary of the territorial cession having been obtained by amicable negotiation with, and free concurrence of, the native chiefs." 16
The result of Mr. Hobson's negotiations, was the treaty of Waitangi, dated the 6th Feby. 1840.
The execution of the treaty of Waitangi, introduces an entirely new state of circumstances. It seems unnecessary to enter upon the enquiry
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whether this treaty was in every respect formally executed between sufficient contracting parties; its validity has been, and is now, distinctly admitted by eminent statesmen who have officially, or otherwise, been concerned with the affairs of New Zealand. 17
An important question however arises as to whether the treaty of Waitangi comprehends all the parts of New Zealand, or what will be the position and rights both of the Crown and of the natives as to those parts to which it may not extend, or of those tribes who are not parties to the treaty.
But whatever legal views may be entertained on this subject, it is clear that by the treaty, the Crown obtained certain rights either over the whole of the New Zealand Islands, or some considerable portions of them.
Such rights of the British Crown, whatever they may be, being thus acquired by cession, this cession being conditional, and the conditions being contained in the treaty of Waitangi,
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enquiries are suggested as to the rights conferred, and the obligations imposed by that treaty upon the contracting parties, and as to what things are comprehended within its terms.
"The chiefs of the confederation of the united tribes of New Zealand, and the separate and independent chiefs who have not become members of the confederation, cede to Her Majesty the Queen of England, absolutely and without reservation "the rights and powers of Sovereignty which the said confederation or individual chiefs respectively exercise, or possess, or may be supposed to exercise or possess over their respective territories, as the sole sovereigns thereof." 18
"A nation," says Vattel, "may lawfully submit to a more powerful nation, on certain conditions upon which they shall come to an agreement, and the pact or treaty of submission will be afterwards the measure and the rule of the rights of each; for that which submits, resigning a right it possessed, and conveying it to
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another, has an absolute power to make this conveyance upon what condition it pleases; "and if such be the legal construction in reference to the nation which cedes any rights, it is submitted also to be "a sound and important principle, that a Sovereign cannot depart from a charter by which, even although voluntary," any liberties or privileges are granted; a fortiori, where a cession is made by treaty, and rights and privileges are guaranteed in return, the articles of the treaty are sacred and inviolable, according to their true intent and meaning." 19
"And in every question which arises between the Sovereign and his Colonies respecting the Prerogative, the first consideration is the charter granted to the inhabitants." 20
By the second article of the treaty, "The Queen of England confirms and guarantees to
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the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands, estates, forests, fisheries, and other properties which they may, collectively or individually, possess."
And by another article:
"The chiefs and tribes also yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate; and in consideration thereof, Her Majesty, the Queen of England, extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects."
Certain rights are thus acquired by the Crown, over all the Islands of New Zealand, or such portion as may be within the operation of the treaty.
The lands are those which "the chiefs and tribes of New Zealand, and the respective families and individuals thereof may, collectively or individually, possess;" or other lands in New Zealand, if such there be.
As to the rights of the Sovereign over lands in possession, or the territorial rights of the Crown, they are such as the Sovereign
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exercises over all lands actually possessed by her subjects in other parts of the empire, and they are not here in question. But as to lands not in such possession, the subject is of much more importance to our enquiry.
The law of Nature (says Vattel) has destined the earth to mankind in general; yet not so but that nations or individuals, by occupation and use of particular portions, may acquire to such parts a proper and exclusive right. 21
The nation which shall first discover any new lands is, as we have seen, legally considered to have a preferable right of occupation over any other discovering nation, and such natural law also recognises the rights of the native occupants to retain their possessions. Now, if such natives be a body politic, there seems no reason why they should not be held to be the discoverers of the land, in close and immediate contiguity to the districts which they immediately inhabit and cultivate; and if they have complied with the requisite formulae to mark their intention, is there any just reason why they should not be as lawfully entitled to
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possession of those countries as if they had come in ships from other parts of the world?
The law of England further restricts the right of occupation, for as the law of nations has restrained other nations, not being the discoverers, from occupying the lands of a newly-found country, the English law restrains the individuals of the British nation from the acquisition of lands in such countries, vesting such lands in the British crown. 22
The law of England also follows the law of Nature in recognizing a just title to the possession of their lands, in the natives of any such countries, so far as they really occupy and enjoy them, and will not exercise any of its powers to deprive them of their possessions, without their free consent and concurrence; but as to all unoccupied and waste lands, these are the demesne of the crown, and may be granted out--this right is a part of the prerogative royal, and the prerogative is an attribute of sovereignty; "and the attributes of the sovereign, which are inherent in and constitute his political capacity, prevail in every part of the territories subject to the British Crown, by whatever
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peculiar or internal law they may be governed, and may, consequently, be exercised in the colonies, except as it may be abridged or restrained by grants or other concession to the inhabitants." 23
Such properties so vested in the crown, as lands which are waste, are such as are not cultivated--and which have no owner. 24
This prerogative the English government recognizes as a part of inter-national law, and, whilst acknowledging the right of discovery and occupation in other nations, recognizes therewith, necessarily, the right of those nations to the unoccupied lands in the discovered countries, leaving it to the civil law of each to determine in what person or body that right ultimately resides and by whom it is to be exercised.
I propose, from these observations, to suggest the consideration whether New Zealand, as a state, had not the same rights of sovereignty over the unoccupied lands in contiguity of lands occupied and extending throughout the Islands, that the crown of England claimed to have over these same lands during the
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period in which it claimed New Zealand by the right of discovery.
Earl Grey, in his despatch to Governor Grey, dated December 23rd, 1846, writing of the districts stated as unoccupied, considers they were not claimed as the property of individuals, but as that of tribes, and that supposing this right to have been good, it is obvious that it was possessed in the way of sovereignty, and was, therefore, transferred with the sovereignty to the British Crown. 25
It is not, however, obvious that these districts claimed as the property of tribes and not as individuals, were possessed in the way of sovereignty, and were therefore transferred with the sovereignty to the British Crown. This statement proceeds upon the assumption that the possession by a number of individuals, pro indiviso, as by a tribe, is not the same thing as the possession by an individual. This, however, may not be the case. Puffendorff, 26 when treating upon the subject, proposes a case where a body of men jointly possess themselves
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of a tract of land, and he says that "the dominion is the same, but that the possession by many is distinguished from possession by one, in that the former is called common, the latter proper; and that communion differs from property only in regard to the subject in which it is terminated and lodged, but not with regard to the manner or virtue of the dominion.
"The same thing may be possessed either in whole by one, or else by many without falling into a division, so that each person, according to his determinate share, shall have an equal right in it."
The enquiry will now arise as to what are the lands in New Zealand which are unoccupied in such a sense as to bring them within the operation of that part of the attributes of sovereignty which would vest them in the Crown; but before any solution of that question could be satisfactorily offered, precise facts as to the actual state of the occupancy and possession of lands in New Zealand must be collected, and some definite judgment first formed as to the operation of the treaty, whether
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over the whole, or only over parts of New Zealand.
In Earl Grey's despatch, 27 which accompanied the Charter, his Lordship quotes the opinion of Dr. Arnold, which would restrict the rights of natives to the lands upon which they have bestowed labour, and which, consequently, implies by the converse that all lands upon which they have not expended labour should be considered as unoccupied. This despatch should be referred to, and its statements and doctrines carefully examined, and viewed in connexion with the instructions given by Lord Normanby to Captain Hobson, 28 when directing the proceedings which ended in the treaty of Waitangi. Lord Normanby, then Secretary for the Colonies, directed that he must purchase the waste land by fair and equal contracts, and Captain Hobson is enjoined that the natives must not even "be permitted to enter into any contracts in which they might be the ignorant and unintended authors of injuries to themselves. You will not, for instance, purchase from them any
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territory, the retention of which by them would be essential or highly conducive to their own safety, comfort, or subsistence. The acquisition of land by the Crown must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves.
Lord Stanley, 29 in proposing the imposition of a land-tax of two-pence per acre, admits that his object was to induce a gradual confiscation of the waste lands, and that the tax was intended to apply to all lands.
Now, as the government would not tax lands belonging to itself, or induce a forfeiture of what was already its own--is not this an admission of the native rights over the soil?
This right of the natives to the soil under the treaty of Waitangi has been further recognized in a Despatch of Lord Normanby's, of August 14th, 1839, in which he writes of the New Zealanders as a "numerous and inoffensive people, whose title to the soil and to the sovereignty of New Zealand is indisputable, and has been solemnly recognized by the British Government."
Having thus stated some of the authorities in
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reference to the claims of the New Zealanders to proprietary and possessory rights over the soil of New Zealand, I find from an examination of the later documents in the Books of Correspondence, a new position of the Question.
On the 1st July, 1847, the Bishop of New Zealand 30 addressed to the Governor, Captain Grey, a protest on the Question of the New Zealanders' rights to Land, which document should be examined.
This protest being transmitted to Earl Grey the Secretary for the Colonies, a reply was forwarded in a despatch to Governor Grey, dated Nov. 30th, 1847, which must also be perused.
In this despatch Earl Grey does not apply to the Case of New Zealand, the Doctrine laid down in his despatch of the 23rd December, 1846, to which reference has been made.
The last despatch states that as regards New Zealand the Doctrine of the expenditure of labour on Land is not necessary to give a proprietary or a possessory right to the Land.
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That rights which have been formally recognized are not to be set aside because they are founded (or have been recognized) on a theory now deemed erroneous. His Lordship states his belief that "the right of the Crown cannot now be asserted to large tracts of waste lands which particular tribes have been taught to call their own." That all such rights are to be admitted and registered, but that another course is to be pursued as to all other Lands.
If it can be shewn on behalf of the Natives, as it is stated that it can be, that all the land is legally claimed either by Tribes or Individuals, the Question may be raised--What Lands then are there upon which the doctrine can be exercised? And to this position I would call the particular attention of the Advocates for the Aborigines.
If it can be maintained that the Natives of New Zealand are, under the circumstances of their position with Great Britain and under the treaty, entitled to the possessory right of the whole of the lands in their country, it may be right to meet a question which may be raised. How then is the Government to obtain possession when either the public service or public
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policy may require extensive portions of the land of that country? and a solution of it will not be difficult.
The treaty secures to the Crown the right of pre-emption, and with that privilege assured, there would not be much difficulty in obtaining for fair recompence to the Natives, such lands as might be required; but if a public necessity existed, and it is only in such a case it would be necessary to adopt such a course, and if right of pre-emption could not be brought into operation by the unwillingness of the Natives to sell their lands, I am of opinion it might then be conceded that the Government, would, under proper legal forms, and arrangements for fair compensation to the Natives still being the basis of such a proceeding, require possession of any necessary portion of the Territory.
It is one of the conditions under which civil property is held in all Societies, that the owners may be forced to part with it to serve the necessities or even the convenience of the State. I admit this exception, but to this condition, another is inseparably annexed; the condition of equivalent and compensation from the public
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to the private owner. All the great authorities concur in this point.
Puffendorff enforces the same principle with great strength of reasoning and many instances and examples of compensation.
Montesquieu confirms this position: "When the public has occasion for the property of a citizen it ought never to act by the rigour of political law, but in those cases by the civil law, which looks with the tenderness of a mother, upon each individual, as much as upon the whole community."
"If the political magistrate want to make any public building or new road he must accord compensation. The public is in this respect as a private party treating with a private party. It is enough that the public can compel the citizen to sell his inheritance, and that it takes from him that great privilege which he holds of the civil law, that he cannot be forced to alienate his property."
In reference to a question proposed in the Case, as to the nature of the tenure of land in New Zealand, it must be evident from the uncivilized character of the inhabitants and the manner of their occupation of their lands arising from their relations as Tribes subject to Chiefs,
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and many of the Tribes probably wandering from one part of those lands to another, that no species of tenures analagous to those introduced by refined civilization into European States may exist. The nature of the tenure therefore will only be that which so imperfect an organization of their Society may require; but as to such lands as the Crown, by virtue of its prerogative, may acquire and grant out, such lands will be held in the nature of tenancies in common socage or freeholds.
In reply also to the question as to the sense in which the words of the Treaty are to be understood 31 I refer to the authorities before quoted, and to the opinion offered on the rule of construction generally. In this case, the New Zealanders being the ceding party, have ceded their lands in the sense of retaining the property they had when they became parties to the Treaty, and their sense ought to govern the interpretation.
On a general review of the facts connected with this important case, and of the principles of such law as I have found to be applicable, it appears to me that the following conclusions arise as to the main questions involved:
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First. That the treaty of Waitangi must form the basis from which the rights and interests both of the Crown of England, and of the Natives of New Zealand must be ascertained.
Secondly. That by virtue of that treaty, the Sovereignty with all its attributes, over New Zealand, is vested in the Crown of England so far as the acts of the chiefs of the confederation of the united tribes of New Zealand and the separate and independent chiefs who have become parties to the treaty, bind, first themselves and all under their control, and also as being the majority of those in whom power is vested, or as the most powerful chiefs and tribes can bind all other inferior or independent tribes who have not yet become actual parties to the treaty.
Thirdly. That by the Common law of England and the High prerogatives of the Crown, all lands, whether as unoccupied or as waste, which are unowned or unclaimed by the chiefs and tribes of New Zealand and the respective families and individuals, are vested in the Crown as demesne lands.
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The question as to such lands as belong to or which are claimed by tribes, or individuals of tribes not yet parties to, nor otherwise included in the treaty of Waitangi, and their rights as first occupants and owners of the soil, must not be considered as included, but would afford a subject for a separate investigation.
Fourthly. That "the chiefs and tribes of New Zealand and the respective families and individuals thereof, are entitled to the full and undisturbed possession of their lands, estates, forests, fisheries, and other properties which they may collectively or individually possess," in the most extensive meaning of those terms with reference to title, occupancy, possession or claim as understood by the natives themselves, and according to their usage, wants, and manner of life.
Fifthly. That the Crown in its charters, or the Legislature in the exercise of its wisdom, may require from the New Zealanders, particular accounts of the lands, estates, forests, fisheries and other properties whether possessed by them as tribes collectively, or as individuals, and also that proofs should be furnished, adapted to the nature of their titles, possession, occupancy, or
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claim, but that such enquiries or legal investigations as to title, &c., cannot, without positive enactment, divest the natives of their rights under the treaty, construed upon such principles as those to which I have adverted.
I am aware that on a subject so extensive, ae well as important in its bearings, and so peculiar from the novel circumstances associated with it, different views of the application of principles of general Law may readily exist, and arguments may be adduced from the character of the natives as uncivilized, and other circumstances, by which other constructions than those I have suggested may be placed on the result of the transactions with the New Zealanders; but from the relative position of the contracting parties, it may also doubtless be hoped that the British Government and Legislature, will act, in reference to the inhabitants of New Zealand, with that care over their rights, and that consideration for their interests, which become a just and a powerful state, when it has taken under its protection the chiefs and tribes, the families and individuals of an intelligent though uncivilized race of men,
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and contracted to impart to them "all the rights and privileges of British subjects."
If the Law does not clearly define the precise bounds on any points connected with their affairs, a paternal Legislature will give the Natives, untaught in that Science, the benefit of the most indulgent exposition of it in their favour; and attaching the natives of those extensive districts of the British Crown by the benefits which they receive and the justice with which they are treated; whilst the objects of the Government in the annexation of the new colony to the British Empire are affected, the happiness and lasting interests of a numerous portion of our new fellow-subjects will also be attained, and the final benefits, however delayed, will yet be long enduring, and prove the truth of those noble maxims of Statesmen now departed, when they maintained: 32
"That Justice is itself the great standing policy of civil society, and any eminent departure
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from it, under any circumstances, lies under the suspicion of being no policy at all.
For "Justice is the paramount interest of all men and of all Commonwealths."
SHIRLEY F. WOOLMER.
No. 2, Serjeant's Inn, Temple.
London, 4th Feb. 1848.
THE END.
