II. Proof that Earl Grey's instructions involve a violation of established Law.
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ENGLAND AND THE NEW ZEALANDERS.
II. Proof that Earl Grey's instructions involve a violation of established Law.
Even if there had been no Treaty--no Acts or declarations on the part of the Queen--yet we should have been bound to the rule just stated, by our own Colonial.Law.
From the commencement of English Colonization in North America, the territorial rights of the native race, as owners of the soil, have been asserted and protected by the Law.
"The original Indian nations were regarded and dealt with as proprietors of the soil which they claimed and occupied, but without the power of alienation except to the Governments which protected them, and had thrown over them and beyond them their assumed patented domains. Those governments asserted and enforced the exclusive right to extinguish Indian titles to lands inclosed within the exterior lines of their jurisdictions,, by fair purchase, under the sanction of treaties.--The Colonial and State Governments and the Government of the United States uniformly dealt upon these principles with the Indian nations dwelling within their own territorial limits." 1
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"The Supreme Court of the United States, in the case of Worcester (in 1832,) reviewed the whole ground of controversy relative to the character and validity of Indian rights within the territorial dominions of the United States. They declared that the right given by European discovery was the exclusive right to purchase, but this right was not founded on a denial of the right of the Indian possessor to sell. Though the right to the soil was claimed to be in the European Governments, as a necessary consequence of the right of discovery and assumption of territorial jurisdiction, yet that right was only deemed such in reference to the whites; and, in respect to the Indians, it was always understood to amount only to the exclusive right of purchasing such lands as the natives were willing to sell. The royal grants and charters asserted a title to the country against Europeans only, and they were considered as blank paper so far as the rights of the natives were concerned." 2
Accordingly it was the general practice to extinguish the native title by fair purchase. Thus "The people of all the New England Colonies settled their towns upon the basis of a title procured by fair purchase from the Indians with the consent of Government, except in the few instances of lands acquired by conquest, after a war deemed to have been just and necessary." 3
Amongst the Instructions issued to Endicot, the first Governor of the Colony of Massachusetts Bay, in 1629, were the following:
"If any of the salvages pretend right of inheritance to all or any part of the lands granted in our patent, we pray you endeavour to purchase their tytle, that we may avoid the least scruple of intrusion." 4
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"Such" says Bancroft, "were the Orders long and uniformly followed in all changes of Government, and placed on record more than half a century before William Penn proclaimed the principles of peace on the borders of the Delaware."
In a letter of Governor Winslow (1676) of the Plymouth Colony, he states, that, before king Philip's war, the English did not possess one foot of land in that Colony, but what was fairly obtained by honest purchase from the Indian proprietors, and with the knowledge and allowance of the General Court." 5
So in New York: "While the Dutch held and governed the Colony, the Indian titles were always respected, and extinguished by fair means with the consent of the natives. This policy was continued by their conquerors." 6 "In New Jersey, the proprietaries very early secured all their titles by Indian purchases." 7 "In 1758 the Indians, at a treaty at Easton, released, for a valuable consideration, all claims to lands in New Jersey." 8
"The legislature of Pensylvania, in 1783, asserted it to have been their uniform practice to extinguish Indian titles by fair purchase." "Governor Culvert, in 1633, planted Maryland after fair purchases from the Indians." 9
"There are also repeated proofs upon record of purchases from Indians which covered a considerable part of the lower country of Virginia; and Mr. Jefferson says (notes on Virginia, p. 153.) that the upper country was acquired by purchases made in the most unexceptionable form. The cases of unauthorized intrusions upon Indian lands happened in the early settlement of Viginia; for laws were very soon made in Virginia to protect Indians in their territorial possessions and rights from the frauds of the whites."
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"Georgia was settled under similar good auspices, and Savannah with a considerable tract of land, was purchased from the Creek Indians by Governor Oglethorpe in 1733 and 1738 under the sanction of solemn treaties."
"The government of the United States, since the period of our independence (says Mr. Chancellor Kent) has never insisted upon any other claim to the Indian lands than the right of preemption upon fair terms." 10
For the purpose, mainly, of obtaining cessions of territory in consideration of annuities and other payments the United States of America have, in the course of sixty years, made 218 treaties with the various native Tribes of North America. [See "Treaties between the United States of America, and the several Indian tribes from 1778 to 1837." Printed by the Direction of the Commissioner of Indian Affairs. Washington, 1837.]
The following is an extract from "The Kings Proclamation of October 7th. 1763, for erecting the four new Governments of Quebec, East Florida, West Florida, and Granada."
"And whereas it is just and reasonable, and essential to our interest and the security of our Colonies, that the several nations or tribes of Indians with whom we are connected and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories, as, not having been ceded to us, are reserved by them or any of them, as their hunting grounds: We do therefore with the advice of our Privy Council declare it to be our royal will and pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume upon any pretence whatever, to grant
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warrants of survey, or pass any patents for lands beyond the bounds of their respective Governments as described in their Commissions: and also that no Governor or Commander in Chief of our other Colonies or Plantations in America, do presume, for the present, and until our further pleasure be known, to grant warrants for survey, or pass patents for any lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the West or North West; or upon any lands whatever, which, not having been ceded to, or purchased by us as aforesaid, are reserved to the said Indians, or any of them.
And we do further declare it to be our royal will and pleasure for the present as aforesaid, to reserve under our Sovereignty protection and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three new Governments, or within the limits of the territory, granted to the Hudson's Bay Company; as also all the land and territories lying to the westward of the sources of the rivers, which fall into the sea from the West and North West as aforesaid: And we do hereby strictly forbid on pain of our displeasure, all our loving subjects from making any purchases or settlements whatsoever, or taking possession of any of the lands above reserved, without our especial leave and license for that purpose first ordained.
And we further strictly enjoin and require all persons whatsoever who have either wilfully or inadvertently seated themselves upon any lands within the countries above described, or upon other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements.
And whereas great frauds and abuses have been committed in purchasing lands from the Indians, to the great prejudice
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of our interests, and to the great dissatisfaction of the said Indians; In order therefore to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our privy council, strictly enjoin and require that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians, within those parts of our Colonies where we have thought proper to allow Settlements: but if at any time any of the said Indians, should be inclined to dispose of the said lands, the same shall be purchased only for us, in our name, in some public meeting or Assembly of the said Indians, to be held for that purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and, in case they shall lie within the limits of any proprietaries, conformable to such directions and instructions as we or they shall think proper to give for that purpose. 11
The subsequent conduct of the British Government has been in conformity with the foregoing proclamation.
Sir Howard Douglas, in the New Zealand Debate, June, 1845, thus described 'the policy and practice of Great Britain in the Canadas.'
"There the soil has been obtained by compact with the Indians. Every part of the vast region now settled, has been obtained by regular conveyances and compacts, from the native tribes. I have been a party to such compacts as a Commissioner to treat with numerous and extensive tribes, in what were then remote and unsettled parts." 12
It is true that the policy which anciently guided the Colonizing operations of Britain was practically abandoned in the
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colonization of Australia; but, at any rate, it was abandoned tacitly. It does not appear that any servant of the Queen was found openly to deny or disavow that policy. And the atrocities, which were consequent upon the course taken in Australia, were amongst the chief causes of the national re-assertion of the old and righteous principle in the case of New Zealand. 13
Further, the principle thus recognized in the case of North America, has been expressly and solemnly asserted by the Supreme Court of New Zealand, as directly applying to the rights of the native people of this land. Queen against Symonds (June, 1847)
The Chief Justice, after laying down the general rule of law as to the dominion of the Crown over the Soil of British Colonial Possessions, said,
"Now at the very commencement of the Colonization of this Country, the same principle was distinctly enunciated. The 2nd. Section of the Land Claims Ordinance of June 1841, (Sess. 1. No. 2.) 'declares and enacts that the sole and absolute right of preemption from the Aboriginal inhabitants rests in and can only be exercised by Her Majesty, Her heirs and successors, and etc.' In fact, if we pass in review the various provisions of this Ordinance, both as to the limitations and restrictions under which grants are to be made in any case, and as to the express directions that lands of certain descriptions shall not be granted to any claimant whatsoever, we see throughout the Ordinance a distinct recognition and assertion of the doctrine just now stated. It is every where assumed that, where the native owners have fairly and freely parted
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with their lands, the same at once vest in the Crown and become subject wholly to the disposing power of the Crown." -- "So soon as the right of the native owner is withdrawn, the soil vests entirely in the Crown for the behoof of the nation." -- "This rule then does in substance and effect assert that whenever the original native right is ceded in respect of any portion of the soil of these Islands, the right which succeeds thereto is not the right of any individual subject of the Crown, not even of the person by whom the cession was procured-- but the right of the Crown on behalf of the whole nation, on behalf of the whole body of subjects of the Crown--that the land becomes, from the moment of cession, not the private property of one man, but the heritage of the whole people." 14
"The 'practice,' said Mr. Justice Chapman, 'of extinguishing native titles by fair purchases is certainly more than two centuries old. It has long been adopted by the government in our American colonies, and by that of the United States. It is now part of the law of the land; and although the Courts of the United States, in suits between their own subjects, will not allow a grant to be impeached under pretext that the native title has not been extinguished, yet they would not hesitate to do so in a suit by any of the native Indians. In the case of the Cherokee nation, v. the State of Georgia, the Supreme Court threw its protective decision over the plaintiff-nation against a gross attempt at spoliation, calling to its aid throughout every portion of its judgment the principles of the common law as applied and adopted from the earliest times by the Colonial Courts. (Kents Commentaries, Vol. iii. Lecture 51.) Whatever may be the opinion of jurists as to the strength or weakness of the native title, whatever may
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be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers. But, for their protection and for the sake of humanity, the Government is bound to maintain, and the Courts to assert, the Queen's exclusive right to extinguish it. It follows from what has been said that in solemnly guaranteeing the native title, and in securing what is called the Queen's preemptive right, the Treaty of Waitangi, confirmed by the Charter of the Colony, does not assert, either in doctrine or in practice, any thing new or unsettled."
"The existing rule then contemplates the native race as under a species of guardianship. Technically, it contemplates the native dominion over the soil as inferior to what we call an estate in fee: practically it secures to them all the enjoyments from the land which they had before our intercourse, and as much more as the opportunity of selling portions useless to themselves affords."
It should be observed that the above rule was originally laid down, and has since been maintained, in favour of persons who were not British subjects.
"The several local governments, before and since our revolution," says Mr. Chancellor Kent, 15 "never regarded the Indian nations within their territorial domains as subjects or members of the body politic and amenable to their jurisdiction."
Now the New Zealanders are British subjects.
By Article 3. of the Treaty: "Her Majesty the Queen of England extends to the natives of New Zealand, Her royal protection and imparts to them all the rights and privileges of British subjects."
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Again, all the natives, whether parties to the Treaty or not, have been declared British subjects:
"All the territories comprised within the Commissions for tha Government of New Zealand, and all persons inhabiting those territories, are and must be considered as being, to all intents and purposes, within the dominion of the British Crown." .[Lord Stanleys Despatch, June 21, 1843.] 16
Also, during the military proceedings in the North and in the South, all natives found in arms were without further inquiry, alike uniformly described in Proclamations and public documents as rebels : And one was executed as guilty of 'High Treason.'
Much more then are the rights of the New Zealanders to be respected, who have at least all the claims which the North American Indians possessed, with the additional title of British subjects.
And especially when those general rights of British subjects, clear in themselves, are further defined, in respect of the territorial rights of the New Zealanders, by Article 2. of the Treaty.
No right of any British subject can justly be, or in practice ever is, taken away from him, even by a Legislature in which he is represented, without compensation for the loss of that right.
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Therefore, (1) by National Compacts and Assurances on the part of Britain,
(2) by the Common Law of the British Colonies, and
(3) by the Constitutional rights of British subjects,
the New Zealanders are entitled to retain against the Crown all lands in New Zealand which are owned, according to native custom: whilst all lands not so owned fall to the Crown.
We now come to Earl Grey's recommendations.
In the "Instructions" of 28th. December, 1846, 17 Chapter Thirteen, it is provided that "The Protector of the Aborigines or any officer appointed to act in that capacity by the Governor or Lieutenant Governor of the province shall transmit to the Registrar of the district, a statement of the extent (as nearly as it can be ascertained) and of the locality of all the lands situate within the same, to which any such natives, either as tribes or as individuals, claim either a proprietary or a possessory title, which claims shall also be provisionally registered."
"All lands not so claimed cr provisionally registered by the time so to be limited as aforesaid, shall thenceforward be and be considered as vested in us, and as constituting the demesne lands of us in right of our Crown, within the New Zealand Islands." 18
The substance of these enactments is simply this: That to an Officer, to be appointed by the Governor, shall be entrusted, and confined, the registration of the claims of the native people to their lands. The natives are to have no con-
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trol or right of interference in any way in respect of the appointment of this Officer, or of his conduct when appointed. Yet, if he shall fail to cause any claim to be registered, whether the default arise from oversight, error, or any worse cause, the lands not registered shall be confiscated. And this confiscation is to be final, and without appeal:
For, though by the following sections a Land-Court is constituted and an appeal therefrom provided, yet the jurisdiction of the Land Courts, (and consequently the Appellate jurisdiction) is limited to "investigating and deciding on the accuracy and validity of such registrations:" and the registries of the several districts, when revised and corrected by the Land Court and Court of Appeal, are to be "received as final and conclusive evidence of the title to any lands comprised in such registries, and as final and conclusive evidence of our title in right of our Crown to all lands not comprised therein." 19
Moreover Claims registered provisionally on behalf of the natives are to be rejected, unless it be established that, "either by some Act of the Executive Government of New Zealand as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the right of such Aboriginal Inhabitants to such lands, has been acknowledged and ascertained. Or, that the claimants, or their progenitors, or those from whom they derived title, have actually had the occupation of the lands so claimed, and have been accustomed to use and enjoy the same, either as places of abode, or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life by means of labour expended thereupon." 20
Now, without noticing minutely the vagueness and uncer-
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tainty of the wording of the Rule thus laid down, and the questions which may be raised upon it, it is enough to say that it is not the rule of the Treaty of Waitangi:-- that it is something different from the plain and simple rule to which we are already bound.
But it should be particularly observed that, even supposing the new rule to admit of a construction which should render it identical in substance and effect with the old one, yet, in the application of the two rules, there is a wide and essential difference. For, the old rule was universal and absolute: the proposed one is partial, and subject to a condition preceding. The old rule applied at once to all the lands of the country: the new one, to the residue only; that is to say, to such portion only of the lands as shall have escaped the preliminary process of confiscation.
These Instructions then amount to a breach of national faith, because they are incompatible with our existing obligations under the Treaty.
Accordingly we find that the Instructions are so understood by persons at home, who are known to have the strongest interest in the question and the best means of information about it. By them it is avowed, that the measures of Earl Grey are in effect a repudiation of the Treaty.
In the Colonial Gazette of January 2nd. 1847, in an Article on 'The New Zealand Charter,' we read,
"Having hinted these doubts, we take our leave of the subject for the present, by expressing our admiration of the humane, equitable, and judicious manner in which the subjects of the Aborigines and their land rights have been dealt with. Every care has been taken to protect the natives that true humanity could desire. But the absurd notion of attributing
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to a few thousand straggling barbarians a right to exclude from lands they cannot use, and never possessed, civilized men who both can and will turn them to account, is repudiated. This idea has been put forth by landsharks to cover their dog-in-the-manger acquisitions, and has been turned to profitable account by certain wily savage chiefs. The dominion of the lands is vindicated to the Crown as a derivative right of the right of sovereignty, and the humbug treaty of Waitangi very properly laid on the shelf"
And to the same purpose, the "Spectator." of the 2nd. of January, 1847,
"Earl Grey has promulgated his Constitution for New Zealand. Though by no means faultless, the measure seems calculated to be a fair opening to the true history of our great Southern Colony, after the preliminary chapters of tragicomic blundering. It sweeps away the whole system of official machinery, and self-impeding sophistry established by Lord Stanley---all the "Treaty of Waitangi" nonsense, and all the past Downing-Street plans for hindering the settlement of the islands; and it plants local self-government."
But this breach of faith is at present only a matter of proposal and recommendation: It is not as yet completed in fact.
The mode in which it may be completed hereafter is shown in the next Section, which provides that
"For ensuring the observance of the preceding rules respecting the preparation of the Charts, and the keeping of the registries aforesaid--and otherwise for carrying into full effect these our instructions respecting the several matters aforesaid, the Governor in Chief of New Zealand shall by proclamation to be by him for that purpose issued, make and establish all such rules as, in pursuance of the powers in him in that be-
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half vested by the said recited Act of Parliament and Charter and by these Our Instructions, it may be competent to him so to make and establish, and so far as it may not be competent to such Governor-in-Chief to establish such rules, it shall be his duty to propose to the respective legislatures of the said respective provinces, the enactment of all such laws as may be necessary for that purpose."
Now, as the recited Act of Parliament (St. 9 and 10 Victoria, c. 103, "An Act to make further provision for the Government of the New Zealand Islands,") contains no enactment relative to the lands of New Zealand, it will remain for the Governor in Chief to invite the Provincial Legislatures to complete this breach of faith by their acts. So that it is in effect recommended,
1. That the faith of Britain directly and solemnly pledged to the New Zealanders shall be violated, by an indirect and circuitous mode, and through the action of the Provincial Assemblies of the Colony: and
2. That Legislatures, in which the New Zealanders will not be represented, shall confiscate the lands of the New Zealanders, which the Queen has expressly and repeatedly guaranteed to them: and
3. That, as a necessary step in order to attain to the Breach of a Treaty, the provincial Legislature shall begin by repealing (in the special case of the New Zealanders) the Common Law of the British Colonies, by which lands within the Colonies are secured to their native owners.
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It is believed that no Legislative Assemblies in these Islands would listen to such an invitation as the above, even if we could suppose it to be made. But it is not the less to be remembered and seriously considered that the above proposals --in substance--are suggested, and that in the Queen's name, by the Colonial Minister to the Provincial Assemblies of New Zealand.
