MEMORANDUM ON NEW ZEALAND AFFAIRS.
[Image of page 1]
MEMORANDUM ON
NEW ZEALAND AFFAIRS.
THE prevalence in New Zealand, of a "tribal tenure" of land, in virtue of which "individual title does not exist, except in rare cases," has been affirmed by competent authority; it is secured to the natives by the treaty of Waitangi, under which the sovereignty of the Islands was ceded to Great Britain, and its nature and consequences are now generally understood in the colony and at home. 1 The system having in certain cases pressed heavily upon the settlers, the policy of the Colonial Government has been directed to the modification of it, with a view to the individualization of native titles; 2 while the more recent proceedings of the Government of New Zealand have raised serious apprehensions of a forcible interference with the tribal right: 3 for the Maories are a people peculiarly sensitive as to their landed possessions, and jealous of their nationality. The Maori King movement 4 again has greatly increased the difficulty of dealing with disputed land questions, from its tendency to embolden resistance on the part of the natives, and to embarrass the
[Image of page 2]
authorities by the uncertainty created as to the true grounds of opposition, and as to how far the ramifications of it may extend. But the existing war has arisen, in the first instance, out of a disputed claim to land, and not out of the Maori King movement; in fact the leading man of the war party at Taranaki has steadily kept aloof from that movement, nor did the supporters of it, as such, come to his assistance when the war broke out, although solicited to do so by special deputation. It is not necessary to determine how far the two questions have since become entangled.
The present review of the subject embraces the following heads:--
I. WIREMU KINGI'S TRIBAL RIGHT IN THE WAITARA A MATTER FOR JUDICIAL INQUIRY.
II. TE TEIRA'S TITLE ALLEGED TO BE INCOMPLETE.
III. THE PRECIPITATE DECLARATION OF WAR.
I. WIREMU KINGI'S TRIBAL RIGHT IN THE WAITARA A MATTER FOR JUDICIAL INQUIRY.
The question on which the justice of the war hinges is the right of Teira to sell to Government a block of land, in disregard not only of the tribal right of Wiremu Kingi in the valley of the Waitara, but also of the individual rights of Kingi and other natives having rights to specific allotments therein. The Government would seem to take their stand, mainly, on the negation of Kingi's tribal right. 5
[Image of page 3]
In a very brief and imperfect outline of a debate upon the war, in the Legislative Council, on Thursday, Aug. 30th, it is reported that
"The Attorney General entered into a lengthened and elaborate examination of the whole question, both with respect to the justice and policy of war, commenting upon the papers which had been laid before the Council, quoting them to show that William King had no title to the land, which was in the first instance, that of Te Whero Whero [the Waikato Chief,] by right of conquest, and that the very land purchased from Teira, and which was the cause of the present difficulty, had been included in a portion of the territory purchased by Col. Wakefield in 1839, but, which purchase neither Governor Fitzroy nor Governor Grey had the power to enforce."--(New Zealand Examiner, Nov. 13, 1860, p. 200.)
This accords with the authoritative statement by Mr. Richmond, the "Native Minister," in a paper dated Auckland, 27th April, 1860:--
"King's stand is really taken upon his position as a chief; and possibly had the Ngatiawa not been broken up and driven from their territory, or had the circumstances of King's re-establishment at Waitara been different, his birth might have given him the command over the tribe which he pretends to exercise. It is enough to say that King's right to dictate to them is not recognised by the principal men of the Ngatiawa in Taranaki, and that its attempted exercise is the
[Image of page 4]
real cause of the disturbances which have so long vexed the district."--(Parl. Papers, July 27th, 1860, p. 168.)
In a second memorandum, signed by Mr. Richmond, and dated May 25, 1860, he says, "The right set up by King is simply the old title of the Maori Chief--the right of the strong arm, which he asserts under quite novel circumstances. At the meeting in March, 1859, when Teira's offer was accepted by the Governor, King plainly took this stand. 'Waitara,' said he, 'is in my hand; I will never let it go.'" Again, June 26, 1860, he says, "The only question raised in the purchase of Teira's block was W. King's right to put a veto on the sale." (New Zealander, Aug. 25 and Sept. 5.)
It may be gathered from these citations, that Kingi's veto, so far as regards his tribal right, is denied on the grounds:--
(1) That such right was extinguished by the conquest of the Waikato tribe, and the sale of their right to the Government, or by the sale to Col. Wakefield.
(2) That Kingi's personal right as chief is not recognised by his tribe.
(1.) To elucidate the first of these points, it will be necessary to pass under review the transactions which have accompanied the return of the Ngatiawa tribe to Taranaki.
The main body of the tribe having migrated voluntarily, or been driven southward by the Waikato, the remnant sold a district of 60,000 acres to Col. Wakefield, the agent of the New Zealand Company, in 1840. The Waikato now put in a claim to the district as conquerors, whereupon, in 1842, Governor Hobson, through Mr. George Clarke, Protector of the Natives, bought up their claims by purchasing, not the mana or "tribal right," as abstracted from the usufructuary right of occupation, but "the land and all things that are on or under this land." (Ibid, p. 170.) In June, 1844, Mr.
[Image of page 5]
Spain (the Land Commissioner) confirmed Col. Wakefield's purchase, hut two months later, in August of the same year, Governor Fitzroy set aside Mr. Spain's award, except so far as regards 3500 acres, in favour of the absent members of the Ngatiawa, great numbers of whom were soon re-established in their ancient possessions--Wiremu Kingi, with a party of 587 souls, returned from Waikanae, in April, 1848. [Parl. Papers, Jan. 1850, p. 201.)
It might be argued, according to established New Zealand usage, that inasmuch as the Waikato confessedly did not occupy (except to a most trifling extent,) the district they had conquered, their right as conquerors did not accrue. It might also be urged that on every principle of equity, as well as on a fundamental principle of feudal tenures, the rights of the returning refugees would be restored to them under their original title; 6 especially when brought back under British protection. But we are not left to draw conclusions of a general nature. These are completely superseded by the action taken by Governor Fitzroy. Mr. Spain's award was grounded on the principle of recognising a title in "actual occupiers" only, to the exclusion of that of absentees. The Governor was guided by the opinion of Mr. Clarke, supported by numerous precedents, "that the New Zealanders do not forfeit their territorial rights by being carried into captivity." The remainder of this important transaction is thus narrated by the Governor himself:
"On the 3rd of August, a large meeting of English and natives were assembled at New Plymouth to hear the final decision.
"The Governor informed the assembly that he did not take the same view of the question as Mr. Commissioner
[Image of page 6]
Spain, and that he should not confirm the award of that gentleman.... On points of law, especially the law of New Zealand, considered with reference to national laws in general, authorities might differ without prejudice to the opinion of either, but if was for him, the Governor, to decide. 7 He would immediately cause further investigation to be made as to the various claimants to particular portions of land. He would then endeavour to make special arrangements with those claimants, and he would allow, in all their integrity, the claims of those of the Ngatiawa tribe, who were not parties to the sale in 1840."--(Mem. by Governor Fitzroy, Parl. Papers, June, 1845, p. 101.)
The words, "in all their integrity," guaranteed to the natives the permanent possession of their lands, with all the rights attendant upon such possession, and upon the position of each in the tribe. The words are the more significant, in that Governor Fitzroy had previously referred to the Waikato, as having had their right of sale acknowledged by Mr. Spain, 8 conjointly with that of the remnant of the Ngatiawa.
[Image of page 7]
He sets aside therefore, the consequences of both sales (except so far as regards the 3500 acres), in favour of the absent Ngatiawa.
Governor Grey would gladly have upheld Mr. Spain's award, but he felt the "matter to be beset with difficulties, and complicated in an extraordinary degree." Having, however, been instructed by Mr. Gladstone, the Secretary of State for the Colonies, to do his utmost to procure for the New Zealand Company the block awarded to them by Mr. Spain, he attempted a compromise (March, 1847), "to evade, as far as practicable, the various difficulties which had arisen under these conflicting circumstances." His scheme, which was far from acceptable to the natives, and only partially carried out, was based on the principle of "re-purchase." This he considered had been rendered necessary by Governor Fitzroy's proceedings, and while professedly refusing to admit the ownership of those who would not assent to his arrangement, "he thought proper," says Mr. Richmond, "(probably on grounds of policy) to acquiesce in the assertion of proprietary rights by the ancient occupants; and the precedent thus set has been followed by his Excellency the present Governor." (Parl. Papers, Dec., 1847, p. 13. Mr. Richmond's Memo., May 25.)
Again, in the Memorandum on the Affairs of Taranaki, transmitted to the Colonial Office, November 19th, 1855, the present Governor, without any reservation, designates Governor Fitzroy's decision as "just" and "very politic." (Parl.
[Image of page 8]
Papers, July, 1860, p. 177.) Moreover, the very purchase of Teira's land is in itself a waiver both of the right derived through Mr. Spain's award and of that through the Waikato, for this latter right, if valid at all, was valid for the land and everything on and under it. (See above, p. 4.)
But it is said that Wiremu Kingi had previously alienated his right to the Waitara; and in proof of this, the Colonial Government have published a Deed of Sale, dated Nov. 8, 1839, which was signed by him under the name, E. Witi, for himself and his father, and which embraces within the specification of its boundaries, the block now sold by Teira. This point, therefore, requires some explanation.
The deed upon which Mr. Spain made his award in favour of the Company's purchase at Taranaki, was dated Feb. 15, 1840. To this Kingi was no party. That which he did sign belonged to the previous year, and was one of two deeds of general cession, nearly coincident both in date (Oct. and Nov. 1839) and in the territories assigned by them to the New Zealand Company. (They are printed in Parl. Papers, Apr., 1846, pp. 109 and 113.) Mr. Spain describes them "as the overriding deeds under which the New Zealand Company asserted that it had acquired territories amounting to about one-third of the whole surface of New Zealand." (Parl. Papers, Apr. 1846, p. 36.) The lands ceded by these deeds comprise portions of the middle and northern islands described as lying between the 43rd parallel of south latitude, and a line drawn from Mokau (about 38 deg. S.) on the west, to Tahukakore (about 41 deg. S.) on the cast coast of the northern island. In reference to that signed by Kingi, Col. Wakefield told Archdeacon Hadfield "that he never had any intention of taking possession of any land under it, and it was only intended 'to throw dust in the eyes of the Sidney land-sharks,' that he might keep them away, or that if they came he could assert
[Image of page 9]
a primary claim to the land, which would invalidate any other claim." (Archdeacon Hadfield's Evidence before the House of Representatives, Aug. 14.) From the minutes of the Land Commissioners' Court, held at New Plymouth June 5, 1844, it appears that no issue was raised upon this deed in behalf of the Company, when their claims in that district were formally under consideration, (Parl. Papers, Apr. 1846, pp. 50, (38) and the Commissioner himself "distinctly informed" Archdeacon Hadfield "that when he looked at the deed he treated it as waste paper, and that there had been no award made under it." (Evidence, Aug. 14.) Moreover, both deeds of general cession were virtually set aside by the arrangement with the Imperial Government, under which the Company was allowed one acre for every five shillings expended in land purchases and promoting emigration, (Parl. Papers, May, 1841, p. 86) and which ultimately reduced their claim from 20,000,000 to about 1,000,000 acres, the actual assignment of the land being subject to further limitations as to locality, and to the adjudication of the Land Commissioners and the Governor. It may be doubted whether Kingi understood the real nature of the document he signed, for Waikanae, at which place he was then residing, is included in the land sold to the Company, and the date of it nearly coincides with that of his father's injunction not to sell the Waitara. (See p. 37.) At all events, he may justly consider himself as discharged from all obligations then incurred, by the general disregard of this singular conveyance, as well as by the more formal and decisive action of Governor Fitzroy respecting the Taranaki land above adverted to, nor can it, at this distance of time, be revived against him. The anxiety evinced by many of the Ngatiawa in 1839, to secure an English settlement at Taranaki, arose out of their belief that they would thus be
[Image of page 10]
enabled to return to their old homes without fear of the Waikato. (Mr. Spain, Parl. Papers. April, 1846, p. 52. Col. Wakefield, Rep. Com. House of Commons, 1844, p. 629.)
Applying to the case the principle laid down by Lord Grey in 1847, to maintain rights "already recognised," (Parl. Papers, Dec, 1847, p. 84) it is impossible, consistently with good faith, now to set aside or subvert the formal decision of a former Governor, or to plead claims, in their origin of doubtful validity, and repeatedly waived. 9 A "just" as well as a generous policy cannot be reversed when time has added the right of prescription to its original solidity.
The claim through previous sales being thus barred in equity, and by express and public compact, the tribal right within the valley of the Waitara has not been extinguished; and it cannot be extinguished, if Kingi's claim be good, unless by his consent, express or implied. It is necessary, therefore, to consider--
(2.) Kingi's personal claims as Chief--
a. He has always been acknowledged as such by the authorities and other Europeans.
He was looked upon as the leading man among that por-
[Image of page 11]
tion of the tribe settled at Waikanae in 1847. (Parl. Papers, Feb., 1848, p. 17.)
His birthright is not denied by Mr. Richmond:-- "Possibly... his birth might have given him the command over the tribe, which he pretends to exercise --Mr. Richmond's plea being that this birthright has been forfeited by the circumstances of his re-establishment at Waitara. (See above, p. 3.)
Again, Kingi's name perpetually recurs as a leading chief in the correspondence respecting the Taranaki feuds in 1855.
"At the Waitara River... I found William King, one of the principal chiefs of the district." (C. L. Nugent, Major, 58th Regiment, Native Secretary.)
The Rev. W. W. Turton (Wesleyan Missionary) says:-- "William King and his tribe have joined all their energies and resources, &c."
The resident Magistrate, Mr. J. Flight, speaks of "the Waitara natives under Wiremu Kingi,"--and again of the attempt of "the Ngatimanui," (a distinct tribe) "and Wiremu Kingi"--employing the name of the chief for that of his tribe. (Parl. Papers, July, 1800, pp. 74, &c, 132, 133, passim.)
b. And by the Taranaki natives generally.
The Rev. J. J. Riemenschneider, (no friend to W. Kingi, whom he stiles--whether justly or not is not the question here--"a wily man," and a "notorious" chief,) in a letter to the Chief Land Purchase Commissioner, dated Sept. 24th, 1855, testifies that the Taranaki natives say of him, "he is on his own land, being the real and true chief of Waitara." After pointing out, in words of prophetic warning, the danger as estimated by the natives, of coercive steps against either one or both of the two chiefs, Katatore and Wiremu Kingi, he adds:-- "In the course of my listening to their long 'koreros,'
[Image of page 12]
and of my occasionally arguing with them about the various points, I observed that it appeared to me there was much reason to believe that Wiremu Kingi had, properly speaking, no land and no claims of his own to the lands at the Waitara, on the south side. With much evident surprise they (the Taranaki) looked and asked me where then his lands and his claims were if not there, since he was the rightful and principal chief of the Waitara.
"When I further reminded them that W. Kingi had no right either to hold or to occupy land on this (south) side of Waitara river, since in 1847 he had given his distinct promise to Governor Sir George Grey, previous to his coming up from the south, that he would not settle on this side, 10 but on the opposite (north) banks of the river, I received in reply, that W. Kingi being the head chief of all Waitara, on both sides of it, it was for himself to choose and to say on which side and on which spot he was to reside. In fine, the Taranaki natives seem to scorn the idea of having that personage set down as merely a second or third-rate chief, and as being possessed of only a nominal right and claim to the Waitara lands which he holds and occupies." (Parl. Papers, July, 1860, pp. 170 seqq.)
Kingi's name (E. Witi) stands first in the list of Ngatiawa signatures to the Queen Charlotte's Sound deed of Nov. 8, 1839. (Parl. Papers, Apr., 1846, p. 111.)
In a native letter from some members of the tribe, written since the outbreak, they say: "We had no doubt or anxiety about our lands--we had no fear that we should lose them, because we were distinctly informed of William King's de-
[Image of page 13]
termination to keep possession of our lands--he being the chief to protect our lands there." (Fox's War in New Zealand, App., p. 57.)
Wiremu Kingi, then, enjoys at the least the presumption of right arising out of that "notoriety of possession" which, in the absence of other proof, was admitted by the Common Law of England, "as equivalent to the formal grant of seisin." 11 Intestine strife can be no new thing in the interior of a New Zealand tribe: but Mr. Richmond's assertion cannot be accepted without further investigation, "that King's right to dictate to them is not recognised by the principal men of the Ngatiawa," whether "in Taranaki" or elsewhere, and that too, at a time when they have shown the contrary, by rallying round his standard. 12
The question assuredly demands a more sifting inquiry than has hitherto been given to it.
Again, if not the paramount chief of the Waitara, Kingi's position would seem to be at least such as to render his assent essential to the completion of a valid purchase; and the Governor has clearly departed from the wise and cautious principle laid down by himself in 1855: "I have disapproved of Mr. Cooper's conduct, in commencing a survey, before he was assured that all who had even a disputed claim to the land, desired it should be sold, and have declined to make a demand for reparation, which could only be enforced at the expense of a general war, including sooner or later all the tribes in the northern island." (Parl. Papers, July, 1860, p. 177.)
The opinion of a person of Mr. Clarke's antecedents, must carry with it great weight on a subject of this nature. It is this:-- "We never considered a purchase complete,
[Image of page 14]
until all parties having claims, or pretended claims, were satisfied. The same rule was adopted by Commissioners Godfrey and Richmond in reference to European purchasers (as distinguished from purchases by the Government). Had such a chief as W. King objected to a purchase, or a chief of much less note, it would have been rejected by them immediately. Apply this rule to the present pretended purchase of Government. * * * * I should have objected to any purchase where such an influential Chief as W. King opposed the measure, or even hinted at an objection, and there is no tribunal at which such cases could be decided, but that of the chiefs; and, after all, no decision would have been valid, without convincing King, and having his assent to the purchase. --Mr. George Clarke, formerly Protector of Aborigines, and Head of the Land Purchase Department for many years; in a letter to Mr. Carleton, July 25th, 1860." (Fox, p. 24.) 13
II. Te Teira's Title alleged to be Incomplete.
Beside the tribal right of veto vesting in and exercised by Wiremu Kingi, Teira's right to sell has also been contested on the ground that there were other owners whose consent had not been obtained.
The Government acknowledged that there were other claimants by appending to the description of the boundary a condition, "that all who might have claims within the block might either sell or retain them, as they thought proper." (Speech of Mr. Stafford, the Colonial Secretary, Aug. 7.)
Among these Kingi himself puts in a usufructuary claim in right of himself and his wife 14 to some small allotments of
[Image of page 15]
the land. Mr. McLean admits that Kingi's cultivations were "wholly, or almost wholly, on the north side of the river." (Evidence, Aug. 14.) Teira himself acknowledges that they were not wholly outside the disputed block, for in a letter to the Governor, March 20th, 1859, he says:--
"Your word advising them (W. Kingi and his party) to mark off their own pieces of land within our line (boundary of the block offered by Teira) they have received, but they do not consent. I consent because it is correct."
Again, in a letter signed Tipene Ngaruna, we meet with this passage:--
"When we met to talk at Hurirapa, Teira said that he would give up his lands outside the boundary, in exchange for the lands belonging to all others within the block which he was selling. All present replied, 'We will not exchange our lands,' &c. "(Dr. Featherstone's Speech, Southern Cross, Sept. 1.)
Mr. Fox says:--
"It is now stated that the 600 acres are not the property of Teira, but the joint property of himself and perhaps 100 other owners--an amount of sub-division very common among natives, whose several occupations are often but a few rods in extent. 15 The Ven. Archdeacon Hadfield declares before the House of Representatives that he is prepared to
[Image of page 16]
prove that there are at least 100 proprietary owners. Riwai Te Ahu gives full particulars in his letter, which I append. 16 Hohepa Ngapaki, and ten others, resident at Otaki, prefer their claims in another letter also appended. 17 Wi Tako, Te Puni, and other important chiefs at Wellington, confirm this to the Superintendent of that Province. Another old chief, who resided for forty years at Waitara, draws a map showing a multitude of small allotments, to which he assigns owners by name. Now only fourteen men and five women have as yet signed the incomplete deed of sale held by the Government; a great many, certainly the majority of these joint proprietors, have not consented to sell; most have never been asked; 18 and tell us that they never heard of the transaction, till informed that the fighting was going on. Some
[Image of page 17]
have positively refused to sell, among whom is Patukakariki, the head of E. Teira's hapu, who is actually fighting on King's side." (Fox, p. 38.) Mr. McLean in his Evidence before the House of Representatives, admits the dissent of Patukakariki, but says that he never asserted his claim.
No little pains have been taken by speakers and writers in New Zealand to prove that Kingi did actually put in his claims both seignorial and proprietary. It is difficult to account for the Governor's allegation, in his opening address to the Legislative Assembly, that Kingi did not "assert" his claims, seeing that nearly the whole year is said to have been spent in investigating the claims adverse to Teira, and in correspondence with Kingi himself and others, on the subject. But Mr. Richmond's statements quoted above are alone sufficient evidence on the point. (See above, p. 3, &c.)
In every point of view, therefore, the conclusion is irresistible, that the action of the New Zealand Government has been hasty and impolitic; the presumption is strong that it has been unjust. Further inquiry is urged by the natives themselves:--
"'The Governor,' said one of the native speakers at the great meeting at Waikato in May last, 'ought to have gone and enquired into the conduct of Te Rangitake (Kingi), then returned, consulted Potatau, and formed a committee of missionaries, magistrates, and chiefs, to enquire into the matter, and if they found that Rangitake is wrong, settle the matter by giving the land to the Governor. But he went to Taranaki and let out all his wrath at once.'" (Fox, p. 37.) And again at Kohimarama in July, one speaker said:--"The Governor was wrong here. Had he sent us to confer with W. Kingi and he had proved obstinate, it would then be time for the Governor to punish him." Another said:--"It appears to me that the Governor was wrong because he did not
[Image of page 18]
first call together the (native) teachers that they might arrange it. Had he done so, it might have been settled. Mr. McLean interposed, and said that four teachers, whom he named, had tried to settle it, but Kingi's party would not listen." (New Zealander, Aug. 1.) But this was an intervention far too slight and informal for so serious an emergency.
From the evidence of Mr. McLean, the Chief Commissioner, before the House of Representatives, it appears, that he initiated the inquiry, and made in person some partial inquiries of those whom he "knew" to be "the real claimants," at Queen Charlotte's Sound and Wellington; and then instructed Mr. District Commissioner Parris to conduct the negociations, and proceed with the inquiries. (New Zealander, Aug. 18.) This admission on the part of Mr. McLean, fully bears out the assertion of Mr. Fox, supported as it is by other high authorities, that the negociation with Teira and the investigation of his title, were virtually left to Mr. Parris, a Sub-Commissioner, "and who really stands in the transaction as at once a party and a judge." (Fox, p. 37.) The Land Purchase Department is, in its very constitution, an agency of the Executive for the purposes indicated by its title, and possesses none of the adjuncts requisite for conducting a regular judicial inquiry. (See Mr. Richmond's Memo., May 25.)-- The delicate nature of this transaction, its intricacies, and the momentous issues depending upon it, alike demand a most searching and impartial inquiry, and one, the dignity of which shall carry with it the weight essential to important judicial proceedings.
III. The Precipitate Declaration of War.
There is no evidence that any final report of the proceedings of the Land Purchase Commissioners had been made to the Governor in January. The only report laid before the House
[Image of page 19]
of Representatives is dated as late as July. On this point the testimony of Mr. Fox is clear:--
"No report on the sufficiency of the purchase was furnished by the Land Purchase Commissioners to the Governor before the war commenced; nothing, except two or three letters of so many lines, 'reporting progress,' in the transaction by Mr. Parris. Rut no general report was furnished till the middle of July, 1860, five months after the war had commenced; and the Reports then furnished by Messrs. Parris and McLean, contain no evidence of title, nor any means to enable the Governor to judge of the completeness of the transaction. See these in Sessional Papers, E. No. 3 A." (Fox, p. 40.)
Moreover, "evidence has, since the war began, been brought to light, proving that.... when the Governor commenced the war, he had by no means made himself the proprietor of the land for which we are fighting, nor has he done so to this day." (Fox, p. 38.)
"At the date of the proclamation of martial law, and indeed to this day, only an instalment of the purchase-money had been paid, and no deed or agreement whatever had been executed. After the war broke out, a deed was prepared, (but without any plan of the land endorsed) and signed by nineteen vendors, men and women, the Government, as the Native Minister stated in the House of Representatives, being afraid that these vendors might get killed in the war, and taking their signatures to an incomplete deed 'ex cautela.'" (Ib. p. 39.)
In the course of the inquiry into native affairs in 1850, Mr. McLean, the Chief Commissioner, had recorded his opinion that "it will be found in almost every case impossible to induce the natives to consent to a survey of any lauds which they may not previously have unanimously agreed to sell, as they generally consider any attempt to survey or mark
[Image of page 20]
boundaries, as an exercise of the right of ownership, &c." (Parl. Papers, July, 1800, p. 307.)
Yet the New Zealand Ministry 19 advise (Jan. 25, 1860) "1st. That Mr. Parris be instructed to have the said land surveyed in the ordinary manner, and to take care that the native chief, W. King, be directly, but not officially, made aware of the day on which the survey will be commenced.
"2nd. Should W. King, or any other native, endeavour to prevent the survey, or in any way interfere with the prosecution of the work, in that case, that the surveying party be protected during the whole performance of the work by an adequate military force, under the command of the Senior Military Officer; with which view, power to call out the Taranaki militia and volunteers, and to proclaim Martial Law, be transmitted to the Commanding Officer at New Plymouth.
"3rd. That when the survey shall have been completed, the Officer commanding at New Plymouth shall, until further instructions, keeps possession, by force if necessary, of the said land, so as to prevent the occupation of, or any act of trespass upon it, by the natives." (Despatch of the Governor to the Duke of Newcastle, June 28, 1860. New Zealander, Aug. 25.)
Accordingly on the 20th of February, the survey was attempted. It was resisted, but not by an armed force. Some 60 or 80 of Kingi's followers were present, but they were kept in the background, and the interruption was caused, Mr. Parris says, by one man, according to other accounts by a number of women, who "went out and 'hugged' or embraced them, telling them not to survey the land," and some of them are said to have held the chain. Among these women, as it is now ascertained, were the wife and two daughters of Patukakariki, the chief of Teira's subdivision of the tribe, and the spot where they interfered, is said to have
[Image of page 21]
belonged to that chief, who was and is dissentient from the sale, and is now fighting on Kingi's side. (Fox, pp. 36, 39, 52. Archdeacon Kissling, C. M. S. Papers, p. 15.)
"A short struggle ensued, in which a native, who accompanied the survey party, struck down one of Kingi's men... Mr. Parris, therefore, rushed in to prevent further collision and probable bloodshed, and directed the surveyor to retire." (Mr. Richmond's Memo., May 25, 1860.)
The advice of the ministry had provided against interference in any way. In accordance with it the Governor had prepared a Proclamation of Martial Law, dated 27th January, which he had "forwarded to Brigadier Lieut.-Col. Murray, the officer in command of a detachment of the 65th Regiment at Taranaki, with instructions 'to issue it, if circumstances should occur such as, in his opinion, to render it impossible to carry out the wishes of the Government without resorting to the powers conferred by it.'" (Fox, p. 34.) It was issued, Feb. 22, two days after the resistance to the survey.
The terms of the Proclamation, moreover, are stated, by competent Maori scholars, to have made it a declaration of war, 20--and that too not against Kingi and his party, but against all the Taranaki tribes--and as such, it is said to have been understood by the natives.
A doubt has been expressed as to whether Colonial Governors have authority to proclaim martial law. 21 It is not necessary to discuss the question here. Even had Wiremu Kingi's claim been less colourable than it is, nay, even though, in the judgment of the Government, he were
[Image of page 22]
clearly in the wrong, the interposition of the military was uncalled for under the circumstances of the case. At the worst, the resistance to the survey was no more than a breach of the peace. The natives of New Zealand are not to be dealt with as a race of savages. By those who know them intimately, they are represented as a law-loving people, and they do not swerve from the conditions of a bargain fairly made and fully understood. They have given proof of their moderation in their general conduct to Europeans, whom they have hitherto greatly outnumbered; and in the present instance, tribes whose sympathies with Kingi is undoubted, have nevertheless stood aloof from the strife, though it was in their power to have created powerful diversions in his favour, by operating against the unprotected settlements. Archdeacon Hadfield distinctly testifies to Wiremu Kingi's having "stated that he really had no objection to the Pakeha's buying land. If they only allow them (the natives) to settle their own differences and define their own boundaries, he would be prepared to negociate with them for the sale of the land." The result of this conversation was communicated to Mr. Parris next morning. The Archdeacon expresses his belief "that had six or twelve months been allowed to elapse without molestation, a sale might have been effected with general consent." (Evidence, Aug. 14.) Kingi, therefore, would not have assumed the aggressive, and negociation was still open to both parties.
But the Governor had committed a further error. The communication with Auckland by steam was easy and rapid, yet he entrusted the issues of peace and war to other hands. In point of fact, he actually hastened down to Taranaki, and on the 1st of March invited Kingi and "any reasonable number of his followers" to a conference, under a safe conduct. But it was too late. The Proclamation of "fighting
[Image of page 23]
law" had been issued. The Governor did not recall or suspend it. Kingi refused to trust himself within his power, and is said, in turn, to have "asked the Governor to come to his pa, assuring him safety." The Governor now complains that "the officer commanding at Taranaki did not carry out his instructions in the manner intended." (Despatch to the Duke of Newcastle, June 28.) Had the Proclamation been withheld till he could reach the spot, the delay of these few days might have given opportunity for calmer deliberation and more cautious action.
It is not necessary to pass under review the events subsequent to the 22nd of February. The tactics of the natives, and their general mode of conducting the war, must be judged of by a Maori rather than by a European standard. The acts of violence and rapine ascribed to them since the war broke out, have been perpetrated by the few, and not participated in by the main body of those in arms against the Government. But they are beside the point now under consideration. No transaction subsequent to the Proclamation of Martial Law can affect the question of the justice or policy of its issue. Whatever opinion be entertained on the points involved in the land question, beyond all controversy the paramount consideration is the precipitancy of the appeal to arms. 22
[Image of page 24]
[Page 24 is blank]
