CHAPTER III
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CHAPTER III.
DIFFICULTIES OVERCOME BY THE COLONISTS.
It must not be supposed that the Colony has been so successfully established without difficulties. We have indeed had our fair share of them; but they for the most part arose from the absence of the protection of Government, which was for a long time entirely withheld from us in a most unaccountable manner. Some description of the way in which we succeeded in maintaining good order at Port Nicholson, even before we were visited by any officer of the Government, may be interesting to the reader.
As I have already stated, we left England without knowing precisely where the first Colony would be placed; and when the settlers were landed on the shores of Port Nicholson, they found themselves left entirely to their own resources to maintain order and mutual protection.
As it was known that Captain Hobson was at the Bay of Islands, we were in daily expectation of being visited either by the Governor in person or by an officer of the Government. In fact we fully expected that Port Nicholson would be chosen
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for the seat of Government as being the most central position for that purpose.
We accordingly waited upwards of a month without taking any step even for our mutual protection, and then we did no more than we were absolutely obliged to do.
I should mention that a Committee of the Colonists had been chosen in England to watch over the interests of the settlers, and generally to do all that was necessary for the complete organization of the body of Colonists previous to their departure.
Early in March 1840, this Committee was called together at Port Nicholson, as a special council. Previous to that some little irregularities had occurred, and for the purpose of protecting society against such acts of individual aggression, a magistrate and several constables were appointed. The conduct of the Colonists had been extremely orderly throughout; but among twelve hundred people living entirely without a Government, and especially with the crews of several ships at all times in the harbour, it was beginning to be apparent to every one that an absolute necessity had arisen for the imposition of some restraints upon the actions of individuals. The Colonists felt the want of protection, and it was evident to every person in the Colony that unless some plan of the kind was immediately adopted, a state of very great disorder and insecurity would arise.
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It should be observed, that at the time this step was taken, the only part of New Zealand which had been declared to be under the Crown of England was the small peninsula lying north of the river Thames. The Port Nicholson district,---indeed the whole of New Zealand except the small portion above named---was still under the dominion of the native chiefs, and had been treated as a country, "not within her Majesty's dominions"---that is, as a foreign country.
Under these circumstances, and in order to give perfect legality to their proceedings, the council obtained from the Native Chiefs full and complete authority to establish and exercise British law at Port Nicholson.
The beneficial effects of this became immediately apparent. People felt, at once, that security for their persons and property was established, as offences which it was before necessary to overlook, were immediately detected and punished.
One good effect of establishing the authority of the magistrate and the supremacy of the law, was the protection thereby afforded to the natives against petty aggressors. I have already mentioned the good conduct of the settlers generally towards the natives, and the good feeling of the latter towards the former in return; but occasional cases of ill conduct did occur, and as soon as the magistrate commenced his sittings, these cases were brought under his cognizance.
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I was an eye witness of one of these. A sailor belonging to one of the ships, had struck a daughter of Epounee, a principal Chief of Port Nicholson. Immediately about twenty of the natives started up, stripped off their mats, and rushed upon the man and his two companions with the evident intention of taking immediate vengeance. The constables, who were fortunately at hand, rescued the offender, probably from immediate death, and persuaded the natives to allow him to be punished by the authorities. There were a great many settlers, as well as natives present, who would probably have interposed had the man or his companion been sacrificed; so that what might have been a frightful disturbance, attended with considerable bloodshed and loss of life, was converted, by the timely interposition of the constables, into a peaceful appeal to the law. In many other cases the natives have been taught by the protection which was extended to them, to repose confidence in the efficacy of the laws. The case I have mentioned was the only one that came under my own observation, but many others occurred during my temporary absence from the colony.
The only case which excited any considerable interest on account of the resistance to which it led, was that of the master of the ship Integrity. This vessel had been chartered by a gentleman of Van Diemen's Land, who has since settled at Welling-
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ton; and some dispute having arisen between him and the master, the latter was alleged to have assaulted him and to have refused to allow him to remain on board the ship. He accordingly lodged a complaint against the master, for whose apprehension a warrant was issued.
I have already explained that the bulk of the colonists had squatted at the mouth of the Hutt, but the settlers by the Adelaide had established themselves on the beach at Thorndon, the present site of Wellington. It was there that the warrant was served upon Captain Pearson; but he resisted its execution, and having his boat on shore, he sent notice to his people to come to his assistance. Two armed boats accordingly put off from the ship, upon which the settlers who were encamped at Thorndon, turned out with the determination of supporting the constables in the discharge of their duty, and of preventing a rescue. Upon the manifestation of this determination, all show of resistance was discontinued, the Integrity's boats returned to their ship, and Captain Pearson was conveyed before the magistrate, and on his refusal to acknowledge the competency of the court, was committed for trial.
In order to provide, as much as possible, for his comfort, and at the same time for his safe keeping, he was taken, under the charge of a constable, on board a ship in the harbour; but through the culpable negligence of the constable, he managed to
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effect his escape to his own ship, and as she sailed shortly afterwards for the Bay of Islands, no opportunity for his recapture occurred without risking a collision between the constables and the people of the ship, which it was desirable to avoid. When Captain Pearson reached the Bay of Islands, his representations, however they may have been intended to operate, had the good effect of hastening the establishment of the Queen's authority at Port Nicholson. Lieut. Shortland, Governor Hobson's colonial secretary, was immediately despatched thither, accompanied by a detachment of thirty soldiers, and a small body of the "mounted police," but dismounted; and on his arrival in the month of June, he caused the British flag to be hoisted, and the Governor's proclamation to be read, declaring the Queen's authority over the whole of New Zealand, to the great joy of the colonists, who testified their satisfaction by receiving Lieutenant Shortland with every mark of attention in their power, and by paying due honour to the British flag.
Thus ended the provisional government, which we had established for our own protection at a time when protection was withheld from us by the Government. No other object had ever been intended, and the provisional government was kept up in a very proper spirit, and in a most effective manner. So long as it lasted, it served the purpose for which it was designed, and maintained
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good order throughout the settlement in a manner entirely satisfactory to the people.
The satisfaction which the colonists felt at the arrival of the Government authorities was changed to disappointment when it was found how little was likely to be done to promote the security of property. We had ourselves provided most effectually for the correction of such offences as the magistrate may take cognizance of; and we fully expected that the arrival of Lieutenant Shortland would be followed by the establishment of higher courts of criminal and civil jurisdiction; in short, we could not doubt that government in all its branches ---that everything which was necessary to give security to person and property would be established among us. No change, however, took place, except in the persons of the magistrates, and the source of their authority. All that they did---all that they had authority to do---was to hold sittings similar to those of the justices of the peace in this country, taking cognizance only of such offences as one or two justices may lawfully adjudicate upon. Even this amount of protection was of short duration; for, from the time when Lieutenant Shortland quitted Port Nicholson in September, until the month of December, 1840, Port Nicholson had only one justice of the peace; so that all offences which by act of Parliament require "two justices" to adjudicate upon, were either left unpunished, or were punished illegally at
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the peril of the single justice. It followed from this, that practically the protection of person and property would have been weaker in Port Nicholson after the visit of Mr. Shortland than before, had it not been that the Queen's authority produced a considerable moral effect, which in some measure compensated for the inadequacy of what was established.
The want of some tribunal for the recovery of debts, and especially of small debts, has been grievously felt by the settlers; and had the provisional government continued a few weeks longer, there is no doubt that it would have devised some method of supplying the want. Many of the retailers literally lived upon the importing merchants, of whom they bought on credit; and under the security that their creditors had no means of recovering the debts due to them, they made use of all the ready money they could muster, in making purchases out of the Sydney ships which arrived at Port Nicholson, the supercargoes of which only sold for cash.
On the establishment of regular government, we had a fair right to expect that something more would be done for the security of property than we were able to do for ourselves. We expected that a court of requests would be established for the recovery of small debts. We expected that the institution of civil courts would immediately follow. Yet, up to the time I left Wellington,
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not a single step had been taken in these essential matters, and it seemed as if the Government which ought to have protected us was desirous of driving the settlement into a state of disorganization and anarchy. Yet it has sustained itself against all these disadvantages, though of course under numerous inconveniences, from which the colonists ought to have been protected.
Since my return to England I have seen a notice, dated Sydney, 4th January, establishing Courts of Requests at the Bay of Islands and Port Nicholson, to be held in January, April, July, and October. This may give some small relief, but the infrequency of the holding of these courts almost robs them of all utility. Courts for the recovery of small debts should be held weekly; and even if this had been done, no provision had then been made for the recovery of larger debts than the Court of Requests has jurisdiction over, or for the redress of civil injuries generally.
As a further illustration of my statement, that the protection of property had not, at the time I left, advanced one step beyond that which existed previous to the arrival of Lieutenant Shortland, I may mention that although the straying of cattle and the damage they caused was sufficient almost to prevent, and certainly to check the cultivation of gardens in Wellington, the efforts of the settlers were unable to procure a pound; and even had they succeeded, the Sydney act is so defec-
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tive, that the impounded beasts must have been advertised at Auckland certainly, and possibly at Sydney. This is really a serious evil, inasmuch as it interferes with the application of capital to land, and contributes, with the other evils I have mentioned, to the further insecurity of property. In short, the means of securing property which a Government has at its command, are confined to Auckland, where there is no property to secure.
Even the administration of the effects of deceased persons was left in abeyance, for want of some competent authority to grant such adminis tration. If the colonists had been left a little longer to manage their own affairs in their own way, no doubt they would have found some means of dealing with the effects of persons dying intestate; but in this, as in other cases, the effect of the visit of Lieut. Shortland was to prevent us from doing anything, whilst the Government did scarcely anything for us; and in one case, I know the property of a person, who was unfortunately drowned, was locked up out of the control of his creditors in Port Nicholson, and of his next of kin in England, and so it remained, perhaps to perish, at the time I left the colony.
As a Judge has been appointed for, and sent to New Zealand, I trust his practical jurisdiction will not be confined to the least populous part of the Islands, as all the advantages of government have hitherto been.
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The want of a competent criminal tribunal has been severely felt, both by individuals and by society at large. I have already stated that the punishment of offences was confined to such as two justices, in the first instance, and afterwards to such as one can legally take cognizance of. Up to the time I left Port Nicholson, nothing in the shape of Courts of Quarter Sessions capable of trying felonies, or even misdemeanors, had been instituted. Drunkenness could be restrained, assaults punished, and some few other delinquencies could be summarily treated, but wherever a trial was necessary, the power of the justices ceased; it was confined to mere committal. Now, in practice, the effect of this was either oppressive to the accused, or led to the ultimate impunity of the offender. A committal for trial, unless the delinquent could find and be admitted to bail, amounted to imprisonment for an indefinite period; and when an offender was held to bail, he felt pretty secure that no ultimate appearance was at all likely to be required of him.
I recollect one cruel case of an old man fully committed for trial by Lieut. Shortland, but as there was no means of trying him, he continued in prison, I believe, up to the time I left. The gaol, be it observed, is only a native-built house, so that the only means of safe keeping is to chain the culprit's legs, and sometimes to handcuff him. In the case in question, the poor old man was in
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feeble health, which rendered his punishment doubly severe, and perhaps many times more severe than would have been inflicted had he been found guilty by a properly constituted tribunal. When it is considered that he may after all have been innocent of the offence laid to his charge, the oppressiveness of a power to commit without a tribunal to try offences will be sufficiently apparent, and ought not to have been permitted to last a single month after Lieut. Shortland made his appearance at Port Nicholson.
When offenders were admitted to bail, the effect was impunity to the accused and injury to society, by turning an unpunished delinquent loose on the community. One notorious case was that of a carpenter, charged with thieving the property of the New Zealand Company. He was admitted to bail by the magistrate, and was at large for six months, at the end of which time he ran away, being considerably in debt. The admission to bail was a mere form, for he was never required to appear. Thus admission to bail is as injurious to the public as committal for trial is oppressive to the accused. The institution of Courts of Quarter Sessions, which need not have been delayed at all, would have prevented both classes of evil.
In the month of May, 1840, private business called me to New South Wales, and I did not return to Wellington until the beginning of September. During that interval the discussions on the
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bill respecting the titles to land in New Zealand took place in the New South Wales Council, and before the precise nature of the measure was known, various reports reached New Zealand disadvantageous to the interests of the settlers. Great alarm consequently existed respecting the titles to land held under the Company, and this, added to the extreme uncertainty which prevailed as to the disposition of the Governor towards the settlers of Port Nicholson, and the unsettled state of the Government generally, created a degree of alarm which, when I returned to Wellington, really amounted to a panic. Almost the first man I met asked me abruptly if I would go to Chile. Not comprehending the import of his question, I sought explanation, when I learned that a proposal had been made and seriously entertained for abandoning the settlement, under the conviction, that by removing in a body to Chile, we should by our capital and labour impart that value to any country we might occupy, which we had already begun to confer upon Port Nicholson. The proposal was, however, abandoned for one of a more sober character; namely, the appointment of a deputation to proceed to Sydney to obtain a confirmation of the settlers' titles to their land; and I merely mention the fact to show the state of the public mind at the time, arising out of the circumstances I have described.
From the month of September, this state of
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alarm gradually subsided, partly in consequence of the renewal of immigration by the arrival of ships from England, and partly by means of the accounts which reached the Colony, that there was some prospect of a favourable arrangement with Government; and when the deputation at length returned from Sydney, in December last, after a successful negotiation with Sir George Gipps, but little real alarm remained, though the settlers still suffered all the inconveniences that I have pointed out as arising from the absence of any efficient administration of the laws.
Now that it is all over, I feel surprised at the patience and steadiness of the settlers during the time when no proper authority was established among them, and they lived in constant fear of being deprived of the land of which they had got possession. It would have been said before-hand, that the settlement could not have preserved its existence under such circumstances. Yet the fact is, that it continually advanced in prosperity. By a sort of common consent, it seemed to be understood, that in our neglected position, everything depended on ourselves. The great bulk of us acted on this understanding, and thus the few evil-doers were kept in check by example and moral influence. A stranger coming among us would have supposed that we were under all the ordinary restraints of a long established society, and it was often said among us, that England could
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not furnish the example of a community better governed by the law, than we were by our own right dispositions.
It may perhaps be concluded, speaking of the whole body of settlers, that the absence of protection and law, by making us reflect on the consequences towards others of all our actions, led to a higher degree of good conduct than would have taken place if we had had a Governor, courts of justice, and soldiers to keep us in order. This influence, however, could not have lasted much longer, and it is therefore satisfactory to be assured that lawful and complete government has by this time been fully established in the Company's Settlements.
