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(A.) Page 1.
THE TRIBAL RIGHT AN INTEGRAL PART OF THE SYSTEM OF LAND TENURE IN NEW ZEALAND.
THE Magna Charta of the New Zealander, as between himself and the British Settler, is the treaty of Waitangi, a treaty to which the faith and honour of the British Crown were pledged in 1840, and the obligations of which have since been again and again re-affirmed by the representatives of the Crown in the colony, and by statesmen of all parties in the Imperial Parliament. It is sufficient to refer to the noble stand taken on this point by Lord Derby (then Lord Stanley), when Secretary of State for the Colonies:--
"I repudiate with the utmost possible earnestness the doctrine maintained by some, that the treaties which we have entered into with these people are to be considered as a mere blind to amuse and deceive ignorant savages. In the name of the Queen, I utterly deny that any treaty entered into and ratified by Her Majesty's command, was or could have been made in a spirit thus disingenuous, or for a purpose thus unworthy. You will honourably and scrupulously fulfil the conditions of the treaty of Waitangi." (Despatch to Sir Geo. Grey, June 13, 1845. Parl. Papers, May, 1846, p. 70. See also Parl. Papers, July 27, 1860, p. 44. Despatches from and to the Colonial Office, &c., passim.)
The Second Article of the Treaty is as follows:--
"Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands
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and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it their wish and desire to retain the same in their possession. But the chiefs of the united tribes, 1 and the individual chiefs, yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them on that behalf." (Parl. Papers, July, 1840, p. 10.)
Upon this article two observations are of importance-- i. "The Treaty of Waitangi, in the Maori text, expressly guarantees to the Chiefs their full rights of chiefship. The English form, the original draft of the treaty, was less explicit on the point." (Chief Justice Martin, Parl. Papers, Aug., 1860, p. 8.)
ii. The term 'pre-emption' was also rendered in the Maori by a word said to mean simply 'purchase;' but independently of this translation, it has been ruled, on constitutional grounds, in an important judicial decision, to mean not "the first refusal," but the exclusive right of "extinguishing the native title." (Parl. Papers, Dec, 1847, pp. 64, &c.)
Among the peculiar usages of the New Zealanders, is that of the tribal possession of land. The Native Secretary sums up the result of an inquiry on this, among other subjects concerning native affairs, conducted in 1856, in these words, "Individual title to Maori land does not exist except in very rare cases, and these doubtful." (Parl. Papers, July, 1860, p. 309.)
The Report of the Board of Commissioners is in these terms:--
"Each native has a right in common with the whole tribe over the disposal of the land of the tribe, and has an individual right to such portions as he or his parents may have regularly used for cultivations, for dwellings, for gathering edible berries, for snaring birds and rats, or as pig runs.
"This individual claim does not amount to a right of disposal to Europeans as a general rule, but instances have occurred in the Ngatiwatua tribe in the vicinity of Auckland, where natives have sold land to Europeans under the waived
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Crown's right of pre-emption, and, since that time, to the Government itself. In all of which cases no after claims have been raised by other members of the tribe; but this being a matter of arrangement and mutual concession of the members of the tribe, called forth by the peculiar circumstances of the case, does not apply to other tribes not yet brought under its influence.
"Generally, there is no such thing as an individual claim clear and independent of the tribal right."
In this opinion 27 of the witnesses examined by the Board concurred. Two witnesses dissented, one of whom mentioned three cases, but stated that "the individual Maories merely acted as agents for the tribe." (Parl. Papers, July, 1860, pp. 237, 257).
Mr. McLean, the Chief Land Commissioner, grounding his opinion on 16 years' experience in all parts of the country, says (April 16, 1856):--
"I do not think that any native has a clear individual title to land in the northern island."
His Taranaki experience has an important bearing on the question now at issue. In reference to the adoption of Crown grants for natives, he remarks:--"I do not think it practicable to give Crown grants to natives by defining the boundaries of individual rights to land; it would be productive of quarrels and disputes, as there is really no such thing as individual title that is not entangled with the general interests of the tribe, and often with the claims of other tribes, who may have migrated from the locality.
"I have tried this system at the suggestion of the Bishop, at Taranaki. It gave me considerable insight into the state of native tenure; but in endeavouring to carry it out I found it took about 30 days to define the boundaries of the claims of 40 individuals over an extent of 40 acres; and even then they regarded the arrangement as altogether imaginary, and it did not appear to affect, in the estimation of the natives, the general or tribal right. When I considered the title settled of some individuals on this basis, I found the natives quarrelled amongst themselves about the boundaries, and prevented any definite arrangement being carried out until I afterwards purchased the whole of the tribal claim in order to secure a clear title.
"I wish every native could get a Crown grant; it would be the means of dissipating many jealousies, and breaking up
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their confederacies.... It is absolutely necessary that the tribal claim to such land should first be perfectly obliterated by previous sale to the Government." (Parl. Papers, July, 1860, pp. 303, 304.)
These remarks, are the more noteworthy, because Mr. McLean, is now supposed, by persons of high position in New Zealand, to be labouring with the Governor and Native Minister, "to make it appear that the claims of tribal right, and the right of the hapu, rest only on the 'strong arm,'" (Fox's War in New Zealand, p. 27; see also above, p. 4.)
The Constitution Act (15 & 16 Vict., cap. lxxii) provides only for the purchase "from the Aboriginal Natives" of "land of or belonging to, or used or occupied by them in common as Tribes or Communities," (sect. 73) and the preamble of the Bill which passed the House of Lords, but was withdrawn on the motion for its second reading in the House of Commons in 1860, recites as a reason for further legislation, that in the above Act "no provision is made in respect of land belonging to any of the said Aboriginal Natives, otherwise than as Tribes or Communities."
It may be fairly inferred that the omission arose out of a deliberate design, whether of policy or from a better knowledge of New Zealand tenures, and was not an oversight; for, in the Land Claims Ordinance of June 9, 1811, which must have been in the hands of the framers of this bill, "purchases or pretended purchases" from individuals are recited as having been made previously to the treaty of Waitangi. 2
In January, 1842, Lord John Russell wrote:--"It would appear to be the custom or understanding of the natives, that the lands of each tribe are a species of common property, which can be alienated on behalf of the tribe, only by the concurrent acts of its various chiefs." (Parl. Papers, May, 1811, p. 52.)
In disallowing a New Zealand Act, which will presently be adverted to, Lord Carnarvon in May, 1859, remarks:--
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"I perceive, however, that the proposed scheme has a further object, and that it is intended to furnish a means of ultimately enabling individual colonists to purchase the landed property granted in severalty to individual natives... But such a change I conceive to be in the highest degree unadvisable. The present system of land purchase appears as far as I can judge, to be understood and acquiesced in by the natives, and to be working well for the colony."
"On the other hand the system of individual purchase is, to say the least, opposed to the spirit of the New Zealand Government Act (vide supra), and it is open to important objections in point of policy.... I hold it, therefore, far more advisable that Government should purchase territories than that individuals should purchase properties, &c." (Parl. Papers, July 27, 1860, p. 172.)
The testimony of an old and experienced colonist, whose position gives his statements and opinion the weight of authority, is decisive as to the practice of the Government in this respect:--
"There is no doubt that on previous occasions purchases may have been effected from hapus, or even from individuals, with only the tacit consent of the tribe; but such cases are exceptional, and, as a general rule, the Government has always made the head chief a party to the negociation, and paid the whole, or a great part, of the purchase money to him, on behalf of the tribe. No instance previous to the Taranaki purchase, has ever occurred in which land has been purchased by the Government from a hapu, or from an individual, against the remonstrance of the head chief. See the preceding extract from Mr. Clarke's letter. 3 A return of any such purchase, if it existed, has been moved for in the House of Representatives, and the mover has been told by the Government that the return would be simply 'nil,' and no return has yet been made. The purchase from E. Teira, which has led to this war, is believed to be the first attempt to buy from individual natives or from a hapu, against the personal remonstrances of the chief of the tribe, and the chief of the hapu." (Fox, p. 25.)
In a despatch dated Oct. 14, 1858, Governor Browne himself quotes at length and as conclusive upon the subject, the evidence of Mr. Merivale before a Committee of the House of Commons in 1857, to the effect that "in New
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Zealand, by the interpretation put upon the treaty of Waitangi, by the Home Government, it was considered that the New Zealand tribes had a right of proprietorship.... like landlords of estates, for which the Crown was bound to pay them." (Parl. Papers, July 27th, 1860, p. 18. See Report of the Committee of the House of Commons, July, 1857, p. 10.) It is therefore, to say the least, somewhat strange that he should now write, "This is a subject of great difficulty, and the practice varies in different parts of New Zealand." (Parl. Papers, August, 1860, p. 4,) and again, "the right to sell land belonging to themselves without interference on the part of the chiefs (not having a claim to share in it,) is fully admitted by Maori custom." (Governor Browne to Sir E. B. Lytton, 29th March, 1859, in Fox, p. 27.) The weight of evidence is therefore conclusive that, with exceptions too trivial to touch the general question, the tribal right is and has hitherto been uniformly recognised as an integral and inseparable part of the existing system of land tenure among the natives of New Zealand. The principal chief is the legitimate mouthpiece and representative of the tribe; and though his influence will vary with the strength of his individual character, he exercises, as chief, a right which savours of a seignorial or manorial right: but that right reaches no higher than a principle of land tenure.
It follows that it constitutes no part of "the rights and powers of sovereignty" ceded to Her Majesty by the treaty of Waitangi, for it floats beneath all questions of sovereignty, being, in fact, a native title secured to the Maories so long as they desire to retain it, by the selfsame instrument which ceded the sovereignty, and under which provision is made for the extinguishing of the same, by purchase, by the Queen alone. When the Governor, referring to Kingi's opposition to the sale and resistance to the survey, addressed to the General Assembly the words:--"I felt it to be my duty to repel this assumption of an authority inconsistent with the maintenance of the Queen's Sovereignty, and the right of the proprietors of the land in question,"--he mistook the real nature of the question he had to deal with, both in reference to the sovereignty and the proprietary rights of Teira.
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(B.) Page 1.
POLICY OF THE NEW ZEALAND GOVERNMENT DIRECTED TO THE MODIFICATION OF THE TRIBAL TENURE.
OF lands (unoccupied by the settlers) which have not a native owner, "there is not an acre in New Zealand." (Governor Browne, Parl. Papers, July 27th, 1860, p. 49.) Under these circumstances it is obvious that the tribal tenure, in a growing colony like New Zealand, is accompanied by many inconveniences. At all times "the Maori feels keenly the parting with his rights over the lands of his ancestors. The expressive words of the deeds of cession declare that under the bright sun of the day of sale, he has wept over and bidden adieu to the territory which he cedes to the Queen." (Mr. Richmond, ib. p. 166.) And during periods of abnormal disturbance, which recur with frequency among a partially reclaimed and semi-civilized people, such a tenure, in the hands of designing men, may become a barrier seriously obstructive even to the equitable extinguishment of native titles. It is therefore by no means a matter of surprise that attempts should be made to relax the stringency of the system. The subject has been frequently before the General Assembly. The object of "The Native Territorial Rights Act, 1858," disallowed by Lord Carnarvon in the Despatch already quoted, was to enable the Governor in Council "to make free grants, to a limited extent, to individual natives, of lands over which the native title shall have been ceded for the purpose." (Parl. Papers, July 27th, 1860, p. 64.) The individualization of native titles was also one of the objects proposed by the Rill of the Imperial Legislature in 1860. Again, in a message from the Governor to the chiefs assembled at the Kohimarama Conference, dated July 18th, 1860, he says: "Some land might be held in common for tribal purposes, but he would like to see every Chief, and every member of his tribe in possession of a Crown Grant for as much land as they could possibly desire or use;" and in introducing this message the Native Secretary (Mr. McLean) observed, "The Governor was most anxious that some means should be devised by the Chiefs now assembled in conference, to define Tribal Boundaries, and make such a sub-division of property among tribes, families, and individuals, as would
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secure to them their landed rights on a more sure foundation than now existed." (New Zealander, Aug. 1, 1860.)
All these measures, it will be observed, assume the existence of the tribal right.
The relaxation of it, there is reason to believe, would be acceptable to a minority of the chiefs, and principally to those most Europeanized in their habits and pursuits. It is repugnant to the wishes of the great majority of the tribes. Be this, however, as it may, to any equitable and well-advised scheme which, after fair negociation, is found to command the confidence of the Maori land owner, and to which his intelligent assent can be secured, there can be no reasonable objection.
(C.) Page 1.
APPREHENSIONS OF A FORCIBLE INTERFERENCE WITH THE TRIBAL RIGHT.
The recent acts of the New Zealand Government have been received both by natives and Europeans as indications of a movement in this direction, otherwise than by legislation and the consent of the chiefs. Any such intention has at length been disavowed by the responsible ministers. The disavowal, however, was so long delayed, and the ferment raised by the apprehension of it was and is so serious, that the subject cannot be passed by without notice.
There has long been a growing indisposition on the part of the natives to dispose of their lands; and this has found expression in a powerful combination known as the Anti-land-selling-league. The league, commencing about fifty miles south of Auckland, embraces nearly the whole of the interior of the island and extends to the east coast, and to the west coast south of Kawhia (Report of the Board on Native Affairs, Parl. Papers, July, 1860, p. 210); some of the most active and influential members of it are resident in the immediate neighbourhood of Taranaki. This settlement has, from its foundation, been surrounded by difficulties so urgent that in May, 1858, the Provincial Council memorialized the General Assembly, to the effect, "that the difficulties under which both races are now labouring can only be removed by an entire change in the policy of the Government, which shall enforce law and order among the natives, and give support and aid to such of them as are willing to sell land"
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(Swainson's New Zealand, p. 205.)--and "that the system heretofore adopted of requiring the assent of every claimant to any piece of land before a purchase is made, has been found to operate most injuriously in this Province on account of the conflicting interests of the claimants, and that the sufferers by this system are invariably the men who are most advanced in civilization and who possess the largest share in the common property. Your memorialists are therefore of opinion that such of the natives as are willing to dispose of their proportion of any common land to the Government should be permitted to do so, whether such natives form a majority or only a large minority of the claimants, and that the Government should compel an equitable division of such common land among the respective claimants, on the petition of a certain proportion of them." (Ib., p. 372.) "Governor Browne," observes Mr. Fox, "very properly opposed this attempt 'to coerce a minority of natives into selling their lands,' The proposal, however, is of consequence, as indicating the strength of the desire felt to obtain the waste lands at Taranaki; and what gives it peculiar importance is this fact, that one of the representatives of Taranaki in the General Assembly fills the office of 'Native Minister,' and has been for nearly five years one of the Governor's 'responsible advisers,'"--(Fox, p. 21.)
Yet when the Governor visited Taranaki in March, 1859, "at a public meeting of all the principal chiefs of the district," he said "he thought the Maories would be wise to sell the land they could not use themselves, as what they retained would thus become more valuable than the whole had previously been. He never would consent to buy land without an undisputed title. He would not permit any one to interfere in the sale of land unless he owned part of it. On the other hand, he would buy no man's land without his consent."-- (Parl. Papers, July 27, 1860, p. 167.) The words emphasized above, might be interpreted either as directed against the usurpations of a self-constituted association like the Land-league, over-riding the free action of the independent chief; or against the well known right of interference on the part of those who, by immemorial usage, possess and may lawfully exercise that right. If only the former were intended, it should have been so explained, for it was understood by the chiefs in the latter sense, and "as striking at the very root of their power." (Archdeacon Kissling, C. M. S. Papers, p. 14).
Negociations, which followed close upon this address,
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so far from allaying the fears of the chiefs, rather tended to convince them that their apprehensions were not unfounded.
On the 18th March (ten days after the meeting) Mr. McLean (the Chief Land Commissioner) issued a public notice addressed to W. Kingi, and other chiefs:--
"You know that every man has a right of doing as he pleases with his own portion, and no man may interfere to prevent the exercise of his right, for the thought respecting his own is with himself.... The thought respecting his own piece is with each. This is a word of advice to you, lest you should interfere, without ground, with Te Teira, &c." (Fox, p. 27.)
On the 2nd of April, Assistant Native Secretary Smith again wrote to W. Kingi. The letter and its general purport are thus alluded to by Mr. Fox:--
"Now they are informed the 'ancient tenures' are to be changed. The 'chieftainship of the land' is no longer to be regarded. 'The Governor's rule is for each man to have the word (or say) as regards his own land.'" (Ib.)
Wiremu Kingi, in a letter to Archdeacon Hadfield, (Dec. 5, 1859) tells him that he "said to Mr. Parris, Disputed land the Governor does not desire. That Pakeha replied, That was some time ago, now this is a new system of the Governor's." (New Zealander, Sept. 1, 1860.)
The new system might be to cany out the purchase of disputed land in spite of the dissent of those whose claim had been disallowed--a policy in most cases highly dangerous; but the expressions used by Mr. McLean and Mr. Smith naturally led the chiefs to imagine that the innovation extended also to the disregard of the tribal right. "The natives," says Mr. Fox, "regard the transactions as indicating an entire change in the system of land purchase, and as a departure from the principle of the treaty of Waitangi." (Fox, p. 26.) Nor were the natives the only parties who put this interpretation upon the Governor's proceedings. He has been commended by one party, and suspected by the other, both outside and within the walls of the House of Representatives:--and on both sides because it was believed he intended to set aside the rights of tribes and chiefs. The Bishop of Wellington, vindicating to the Governor the conduct of Archdeacon Hadfield, says:--"I think you have been misled in the matter of Archdeacon Hadfield's conduct about the Taranaki war. He
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told me, some months back, that he wished to write to you about the state of the natives at Taranaki, as he had received a letter from William King; hut as I then expected you and the General Assembly in February or March, I recommended his waiting till you came, and then to talk the matter over. We had no idea of the sudden coup de main your Excellency was planning, and the Proclamation of Martial Law in the Province of Taranaki came upon us before we had any opportunity of remonstrance. Both the Archdeacon and I were out of the country, and on the high seas, when your Excellency made the speech you allude to at Taranaki; I never saw it, or heard of it, till last month. But at the same time I should say, that if I had seen it, I should never have understood from it that you were going to introduce a new principle in the deciding of native titles to land; and that you were going to ignore the tribal right of ownership, and to accept the usufructuary possession as being a title to the fee simple." 4 (Southern Cross, Sept. 1, 1860.)
If they were not really feeling their way to some ulterior measures, such as those ascribed to them, the conduct of the Government can only be regarded as in a high degree incautious and unstatesmanlike. It was not without reason that Dr. Featherstone said in the House of Representatives, (Aug. 17, 1860) "I hoped that ministers would have openly declared whether the " New Policy" recently adopted in the purchase of native lands, of which Wiremu Kingi and the natives complain, the policy of recognizing individual native claims and of ignoring tribal rights, is to be persisted in.
. . . The principle has, for the first time, applied in the purchase of the land at Waitara, and considering the disasters it has caused, that one province may be said to be completely destroyed, and that the prospect of a general war is daily becoming more imminent, I think that the colony has be-right to know whether this new policy . . . is henceforth to be the policy of his Excellency's Government. For if such is the decision of the Government; or if this new policy be not openly and officially disavowed, I do not hesitate to say that it will be regarded by almost every tribe in New Zealand
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as a violation of the rights solemnly guaranteed to them by the treaty of Waitangi, and that the disasters of Taranaki will be repeated in various parts of this island, but on a greater scale." --(Southern Cross, Sept. 1, 1860.)
(D.) Page 1.
THE MAORI KING MOVEMENT, AND THE QUEEN'S SUPREMACY.
COMPLICATED with the Land-league already adverted to, and more dangerous, but not necessarily connected with it, for some members of the League repudiate it, is the King Movement, the chief seat of which is among the Waikato. A Waikato chief, Te Whero Whero, or Potatau, was the first "King," and his son, who has assumed the style and title of Potatau II., has succeeded him. "There is a feeling of nationality among the natives in reference to their lands," and these they see fast passing into the hands of strangers. (McLean, Parl. Papers, July, 1860, p. 304.) The feeling also is strong amongst them, --and common to them and to the loyal natives--that while the law interposes between the settler and the native, there is no law as between native and native; their ancient customs are falling into dissuetude, and no new code has taken their place. These two feelings combined would appear to constitute the strength of the movement. The extreme party are earnest for a really independent national status. A larger party ask for no more than effective magisterial authority and a just share in the government of their country. None have hitherto manifested a disposition to commence hostilities against the Government; on the contrary, so far from having seized the opportunity for establishing a Maori kingdom, Potatau and the Waikato chiefs offered to mediate between Kingi and the Government. The movement is variously regarded by different authorities in the island as more or less serious. It might, doubtless issue in such an assertion of independence as would amount to a clear breach of the treaty of Waitangi; for by that treaty the natives became British subjects, and, resigning on the one hand their right to enter into treaty compacts and make territorial cessions to foreign powers (perhaps the most valuable to Great Britain, of all the adjuncts of the sovereignty,) and limiting their privileges
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in dealing with British subjects; they, on the other, established an indivisible unity of empire under the British crown, any breach of which would now be revolutionary. But Kingi's opposition to the sale of Waitara has no direct and antecedent connection with this movement, of the nature of cause and effect. Nay, it dates back of a period coincident with the colonization of the country and long anterior to either the Land-league or the King movement. "I myself," says Riwai Te Ahu, "formerly heard the private language of Reretawhangawhanga, William King's father, in the pa at Waikanae, in 1840, in reference to Waitara, not to sell it to the Pakehas. And he continued to express the same determination until his death in 1844. And he left a strict injunction to William King to carry out his wishes after his death." (Fox, App., p. 54.)
The Waitara natives have always manifested an indisposition to sell their lands, and a respect for the rights of absentees. (Parl. Papers, Apr. 1846, p. 143.)
It may not be superfluous to remark here, that the question as to whether Kingi acted in co-operation with the Land League and Maori King movement or not, is not material, so long as his interference was confined, as in this case, to the exercise of a right claimed by him under the established usages of the country.
The discrimination of the Governor was, therefore, greatly at fault, and his proceedings only such as still further to complicate, rather than unravel the difficulties of his position, when he "selected this particular occasion"--a simple question of the rights of property-- "for vindicating the supremacy of the Crown." (Fox, p. 44.)
(E.) Page 13.
GENEALOGIES OF KINGI AND TEIRA.
The presumption from notoriety as regards Kingi's right to the chieftainship at the Waitara, does not appear to have been overruled by other evidence of a decisive character; for had this been the case, the Government, in the excited state of the country, were bound to give it all publicity without delay. Nothing which deserves the name of evidence on this point is traceable in the debates in the House of Representatives, or the public papers. An attempt, indeed, but appa-
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rently not a serious one, has been made to set up Teira's right as Chief of the tribe, against Wiremu Kingi, by the publication of a genealogical tree, in which Teira's pedigree is traced back seventeen generations to an ancestor of the name of Kahuiti. An anonymous writer, but evidently one of some mark, who contends, against the supporters of Kingi's right, that there is "no feudal lordship amongst the Maories," remarks upon this pedigree "that it would seem to lead us to a conclusion the reverse of that which was intended," in suggesting the likelihood that W. Kingi and his party, upon principles of intra-tribal right, have a claim upon the land of the tribe, for "Wiremu Kingi's descent may be traced by thirteen generations through a woman of the name of Maurirangi to the very same stock." (Dr. Featherstone's Speech, Southern Cross, Sept. 1; Letter of Anglo-Maori, Ib., July 31.)
(F.) Page 13.
RESOLUTIONS OF THE NATIVE CONFERENCE.
The evidence in the text has reference only to the Ngatiawa and the tribes in the neighbourhood of Taranaki, whose local knowledge qualifies them to become witnesses in the case. It may be answered that the third resolution of the Chiefs at the Native Conference at Kohimarama, was:-- "That this Conference having heard explained the circumstances which led to the war at Taranaki, is of opinion that the Governor was justified in the course taken by him; that William King Te Rangitake himself provoked the quarrel, and that the proceedings of the latter are wholly indefensible." (New Zealander, Sept. 1.)
It must, however, be borne in mind that the members of this Conference were selected for their known friendship to the Government; that considerable excitement prevailed respecting this resolution, which, after all, is very vague and general, and which was not assented to till the next morning; that three of the Chiefs recorded their dissent from it; and that the apprehension almost universally expressed as to a war of races indicates that the general sympathies of the natives are felt to be with Wiremu Kingi.
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(G.) Page 14.
KINGI'S PERSONAL SERVICES TO THE GOVERNMENT.
THE Governor endeavours to cast a slur upon Kingi's personal character:-- "He has no sort of influence with me or the Colonial Government," he writes to Lord Stanley, in June, 1858; "and we believe him to be an infamous character." (Fox, p. 19; see also Despatch to the Duke of Newcastle, June 28, 1860.)
The point is not material, for it cannot affect the question of his tribal or personal rights. It is, however, satisfactorily-proved, that King's loyalty has been stedfast, and his assistance of sterling value in times of imminent peril. Archdeacon Hadfield's testimony on this point is decisive:-- "I have known him for twenty years. When the first collision took place in the year 1843, between the English and the natives, under the command of Te Rauparaha and Te Rangihaeata at Wairau, the latter were elated with their success, and proposed to plunder and destroy the town of Wellington. Great efforts were for some days made to organise a force for the purpose. The strength of the local government was ascertained. The time required to obtain troops from the neighbouring colonies was nicely calculated. But the attempt was baffled. In a work published last year in London, and written by Mr. Swainson, the late Attorney-General of the colony, the safety of Wellington at that time is attributed to my influence and exertions. I received the thanks of the Governor of the Colony. I was then residing about forty miles from Wellington, at Waikaure, a native pa, of which William King was the chief. He had about a thousand well-armed men who obeyed his orders. I attribute to that chief's loyalty alone the failure of Te Rauparaha and Te Rangihaeata's schemes.
"Again in the year 1846 when Te Rangihaeata was in arms against the Government in the neighbourhood of Wellington, William King, though a near relation of that chief, evinced his loyalty to the Crown, not only by a steady resistance to all the solicitations of that chief, but by actually taking up arms against him. He captured with two exceptions the only prisoners taken during the war, and in fact hastened its conclusion." (Archdeacon Hadfield--Letter to the Duke of Newcastle, p. 22.)
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When contemplating his return to the Waitara in 1847, he would not do so "by stealth," observing "that the Ngatiawa tribe had always been friendly to the Europeans, and it was their desire to continue on the same amicable terms they have hitherto been." (Parl. Papers, Feb. 1848, p. 17, and supra, p. 12.)
(H.) Page 20.
SOLE RESPONSIBILITY OF THE GOVERNOR IN NATIVE AFFAIRS.
The Governor, in these transactions, has been guided by the advice of his "Responsible Ministers"--who, for native purposes, become "the Executive Council," which, by his instructions, he is bound to consult. The ultimate responsibility however rests with himself. This will appear from the annexed extract from a Minute explanatory of the view taken by him of the relation between himself and his responsible advisers on the introduction of this plan of Government, in April, 1856.
"2nd. On matters affecting the Queen's prerogative and imperial interests generally, the Governor will be happy to receive their advice, but when he differs from them in opinion he will (if they desire it), submit their views to the consideration of Her Majesty's Secretary of State, adhering to his own until an answer is received.
"Among imperial subjects, the Governor includes all dealings with the native tribes, more especially in the negociation of purchases of land." (Parl. Papers, July, 1860, p. 209.)
(I.) Page 21.
PROCLAMATION OF MARTIAL LAW.
Literal translation of the Proclamation of Martial Law from the version published in Maori:--
By the Governor, Colonel Thomas Gore Browne, Principal Chief, C. B., &c, &c., this Proclamation is by the Governor of this Colony of New Zealand.
Because soon will be commenced the work of the soldiers of the Queen against the natives at Taranaki, who are naughty
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(rebellious,) fighting against the authority of the Queen. Now, I, the Governor do openly publish and proclaim this word, that the fighting law [ture wawhai,] will extend at this time to Taranaki as a fixed law until the time when it shall be revoked by Proclamation.
Given by my hand, under the great seal of the Colony of New Zealand, at Auckland, this day the twenty-seventh day of January, in the year of our Lord one thousand eight hundred and sixty.
THOMAS GORE BROWNE,
By order of the Governor, Governor.
E. W. STAFFORD,
Secretary of the Colony.
GOD SAVE THE QUEEN.
This is clearly open to the double misconstruction pointed out in the text, being capable of being understood as a declaration of war; and as being directed, not against the followers of Kingi only, but against all the natives of Taranaki whom it may be taken as predicating to be naughty and fighting against the Queen. No other translation has been put forth by the Government, who, however, assert that it is not quoted by the natives now in arms as a justification of their conduct, or as containing a fair challenge to fight. The Colonial Secretary, Mr. Stafford, is reported to have said, "If the Proclamation were re-translated into English, it might be made to bear any construction." (Speech, Aug. 7.) Surely the most scrupulous care ought to have been taken that it could admit of but one construction, whether to the native reader or to the English translator.
(K.) Page 23.
SUBSEQUENT MEASURES OF THE COLONIAL GOVERNMENT.
ON the meeting of the General Assembly in August, 1860, the Responsible Ministry introduced a Bill to be entitled "The Native Offenders' Act, 1860." It encountered very strong opposition, and while these remarks were passing through the press, it became known that, in consequence of the
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motion for going into Committee having been carried only by the casting vote of the Speaker, it has been withdrawn. Its abandonment is here recorded as a matter of deep thankfulness. But it serves to illustrate the policy of the present New Zealand Government towards the natives, and publicity is now given to its provisions, to show the necessity for the introduction of some such measures as are calculated to secure for the natives a full and fair consideration of their lights and interests.
The exorbitant powers which would have been conferred by this Bill over the rights both of person and property, in the case too of British subjects, will be at once seen from the offences which it created, and the penalties which it imposed; and which might at any moment and over any extent of country, have been called into active operation by Proclamation, on the sole responsibility of the Governor.
The objects of the Bill are stated in the Preamble; --
"Whereas Aboriginal Natives, after committing offences against the law, occasionally escape to remote districts, and are there harboured by Chiefs and Tribes who refuse to deliver them up to justice: And whereas also combinations are occasionally formed amongst Aboriginal Natives for the purpose of resisting the execution of the Law and for other unlawful purposes: And whereas it is expedient, in order to enforce obedience to the Law in the cases aforesaid without the employment of military interference, that the Governor should be enabled to prevent dealings and communications with the Aboriginal Natives offending as aforesaid: Be it therefore enacted, &c."
Clause I gives the short title, "The Native Offenders' Act, 1860."
By Clause II the Governor was authorised to declare that all or any of the provisions of the Act shall apply to any specified district.
The offences it proposed to create are:--
"III. Whenever any district, shall, by virtue of any such proclamation, have been declared and be subject to the provisions of this Act, every person who, without the written permission of the Governor first obtained for such purpose, shall do any of the acts next hereinafter specified, shall be deemed
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to be guilty of an offence against the provisions of this Act, and shall he punishable accordingly, as hereinafter provided, namely, every person--
"(1.) Who shall wilfully visit any part of such district, either by land or water, or, not being a resident thereof, shall remain therein after having become cognizant that the same is subject to the provisions of this Act.
"(2.) Or who shall knowingly purchase, or carry by land and water, or receive, any goods or chattels whatever the produce of such district, or the property of any aboriginal Inhabitant thereof.
"(3.) Or who shall purchase or otherwise obtain any goods or chattels for the use or benefit of any aboriginal Inhabitant of any such district.
"(4.) Or who shall knowingly sell any goods or chattels whatever to any aboriginal Inhabitant of any such district, or to any person with intent that the same may be applied or disposed of for the use or benefit of the aboriginal Inhabitants of such district, or any of them, or who shall otherwise carry on trade or commerce with such Inhabitants or any of them.
"(5.) Or who shall knowingly and wilfully hold any communication or correspondence whatever, directly or indirectly, with any aboriginal Inhabitant of any such district.
"(6.) Or who shall by counsel or otherwise assist, invite, or encourage the inhabitants of any such district to offer or to continue to offer resistance to the execution of the Law, or shall publish or utter in writing or by word of mouth, any language calculated to invite or encourage such resistance with intent to produce that effect.
"(7.) Or who shall refuse or wilfully neglect to depart from or leave any such district within a time to be fixed by the Governor by any writing under his hand, after having been personally served with a copy of such writing or otherwise made aware of the contents thereof.
"(8.) Or who shall aid, assist, or abet any person in the commission of the above-named acts, or any of them, or shall knowingly excite, encourage, solicit, ask, require,
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or induce any person or persons to commit, or aid, assist, abet, or join in the commission of any of the above-named acts."
Clause IV gave the Governor power to declare tribes or individual natives subject to the provisions of the Act. The penalties are contained in Clauses V, VI, VII:
"V. Every person who shall be convicted in a summary way before two Justices of the Peace of any offence under this Act shall for the first offence forfeit and pay any sum not exceeding the sum of £100 as to the said Justices shall seem meet; and if any per, on so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in a summary way before any two Justices of the Peace, every such offender shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labour for such term not exceeding twelve calendar months, or less than six calendar months, as the convicting Justices shall think fit; and if any person so twice convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted thereof before a Court of competent jurisdiction, shall be liable to be punished by penal servitude for any term not less than three years, and not exceeding six years, as such Court shall think fit.
"VI. Provided always that it shall be lawful for the Governor to commute the punishment to be awarded on a second or third conviction for any of the said offences, to banishment from the colony of New Zealand for such term as he shall think fit, and to order and cause such person to be removed from the said Colony accordingly, to such place to be approved of by the Governor, as the person so to be banished shall choose, and in default of his making such choice on being called upon or required by the Governor so to do, then to such place in Her Majesty's dominions as the Governor shall direct or appoint.
"VII. If any person who shall have been so banished and removed as aforesaid, shall be at large in any part of the Colony of New Zealand without lawful cause before the expiration of the term for which such person shall have been ban-
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ished, every such person being thereof lawfully convicted, shall be liable to penal servitude for any term not less than four years, and not exceeding ten years. "
Summary jurisdiction over property, without a hearing on the part of the accused, and without requiring any previous prima facie evidence as to its being stolen property, was thus vaguely and arbitrarily given in Clauses VIII to XII.
"VIII. All goods and chattels personal of whatsoever kind, or wheresoever found, of any aboriginal inhabitant of any district, or of any tribe of aboriginal inhabitants, or of any aboriginal native respectively, subject to the provisions of this Act, may be seized by any person authorised by the Governor to make such seizures, and when seized shall be delivered into the care of some person to be appointed by the Governor in that behalf.
"IX. All ships, vessels, boats, barges, punts, and canoes, and all vehicles, employed or used, and all goods or chattels personal, dealt with in any manner in contravention of the provisions of this Act, to whomsoever the said ships, vessels, boats, barges, punts, canoes, vehicles, goods, or chattels may belong, may be seized by any person authorised as aforesaid, and when seized shall be delivered into such care as aforesaid.
"X. Whenever any goods or chattels personal, ships, vessels, boats, barges, punts, canoes, or vehicles shall have been so seized and delivered as aforesaid, the person into whose care the same shall have been delivered shall forthwith cause a notice giving full particulars of such seizure to be published in all the newspapers published in the Capital Town of the Province in which the seizure shall be made, and if there be no such newspapers then in such other way as may be calculated to give full publicity to the same, and shall by such notice warn all persons having any claim in respect of such seizure to prefer the same to the Resident Magistrate of such Capital Town within twenty-eight days after the day of the first publication of such notice.
"XI. On such claim being made the said Resident Magistrate shall fix a day for the purpose of hearing the same, and shall, at the request of the claimant, issue a summons calling
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upon the person in charge of the property seized to appear. On proof of the due service of such summons it shall be the duty of the Resident Magistrate to examine the claim, whether the person so summoned be present or not, and cither to condemn the said property as liable to seizure under this Act, or order the same to be given up to the said claimant, as to such Resident Magistrate may seem just.
"XII. If no claim shall be made in respect of any seizure within the time fixed for claiming the same, or, if made, it shall not be duly prosecuted, or if the property seized shall have been condemned in any such case, the property seized may be sold in such manner as the person in charge of the same shall think fit, and the proceeds arising from such sale shall be disposed of in such manner as the Governor shall direct."
Clause XIII indemnified persons acting under the authority of the Governor in pursuance of the provisions of the Act.
Clause XIV provided that no prosecution under the Act should be commenced without the authority of the Governor, and "that the production of any written authority, either general or special, and either previous or subsequent to the act done," for the purposes of the Act, "purporting to be signed by the Governor, shall be prima facie evidence of such authority having been given."
The preamble of this Bill recites that its object was to enable the Governor "to enforce obedience to the law" " without the employment of military interference." It may reasonably be doubted whether the inhabitants placed under the ban would quietly submit to outlawry and civil excommunication; and especially whether they would permit the comprehensive seizures contemplated in Clauses VIII and IX without resistance; or even whether friendly tribes and chiefs would submit to be debarred from all intercourse with their proscribed fellow-countrymen. It would be impossible to carry out such a measure without the general support of the people, a support which there is no probability that they would give.
The obstructions it would have placed in the way of the whole body of Missionaries are too obvious to require notice.
LONDON: T. C. JOHNS AND SON, ST. BRIDE'S, FLEET-ST,
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Williams & Norgate have published:
The War in New Zealand. By WILLIAM FOX, Member of the House of Representatives, Auckland, New Zealand. 8vo.
One of England's Little Wars. A Letter to the Right Hon. the DUKE OF NEWCASTLE, Secretary of State for the Colonies. By OCTAVIUS HADFIELD, Archdeacon of Kapite, New Zealand. 8vo...1s.