1856 - Shortland, Edward. Traditions and Superstitions of the New Zealanders - CHAPTER XIV

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CHAPTER XIV.

"A CERTAIN man had a male child born to him; then another male child; and then a third male child. He also had daughters. At last the father of this family being at the point of death, the sons and daughters and all his relations assembled to hear his last words, and to see him die; and the sons said to their father, 'Let thy mouth speak, 0 father, that we may hear your will; for yon have not long to live.' Then the old man turned towards his own younger brothers and spoke thus: 'Hereafter, 0 my brothers, be kind to my children. My cultivations are for my sons. Such or such a piece of land is for such or such a nephew. My eel-weirs, my potato gardens, my potatoes, my pigs, my male slaves, and my female slaves, are all for my sons only. My wives are for my younger brother.

"Such is the disposition of a man's property: it relates only to the male children. The custom as

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to the female children is not to give them any land: for their father bears in mind that they will not abide on the land. They may marry husbands belonging to another tribe not at all connected with their parents' family: therefore no portion of land is given to them. Not so the male children: they stand fast always on the land: they do not remove to a distance with the intention of never returning home again.

"The sons marry wives, and beget children, and they leave their lands for their male offspring. In case they are attacked by another tribe, and none of the family escape, the land then changes owners; because all the men of the family have been destroyed. That is the reason why the land changes owners.

"Hear the custom in regard to lands which are held by right of conquest. 1 Suppose some very large tribe is defeated. Suppose that tribe is defeated once--is defeated again a second and a third time; till at last the tribe becomes small, and is reduced to a mean condition. It is then made to do the work of dependents--to cultivate the land for food, to catch eels, and to carry wood. In short, its men are treated as slaves.

"In such a case, their land passes to the possession of the tribe whose valour conquered them. They will never think of striving against their masters;

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because their power to fight has gone from them. They were not brave enough to hold possession of their land; and although they should grow numerous afterwards, they will not seek a payment for their former losses; for they are fearful, and say among themselves, 'Don't let us strive with this tribe, lest we perish altogether, for it is a brave I tribe.'"

The preceding paragraphs are literally translated from a letter written by a New Zealander, in reply to some inquiries as to the nature of titles to land in his country. Being a chief of rank, and very intelligent, his authority is as good as any that could be referred to; and, from its agreeing with information collected among other tribes in different and distant places, I inferred that the ideas on this subject prevalent throughout New Zealand were similar. It is observable that the head of a family has a recognized right to dispose of his property among his male offspring and kinsmen, and that his will, expressed shortly before his death in the presence of his family assembled for the purpose, possesses all the solemnity of a legal document.

The custom which leaves the lands of the family to the males, to the exclusion of females, is certainly universal, and is no doubt the cause why the consent 2 of brothers is always necessary previous to their sister's marriage. If consent is given,

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a portion of land may be given with them: but if a female marry a man of a strange or an unfriendly tribe, the brothers will not give her any land. "We have no land to give you, mam; go to your husband for a piece of his land. You'll take nothing away with you but your smock. Why you're only a slave to blow up his fire," 3 was the uncourteous reply given to a sister who, under such circumstances, went to her brothers to ask for a share of the lands of the family.

Even when any land is given to a sister on her marriage, it is only given conditionally; for if she have no issue, it reverts to her brother's family. This fact I first learned from being present at a dispute between two branches of the same tribe about the right to an eel-weir. The eel-weir in question had three generations before been in possession of a husband and wife, the former of whom belonged to one branch, and the latter to the other branch of the tribe. The female had no children; and after her and her husband's death, the younger brother of the husband attempted to take possession of it. This was opposed by the brothers of the wife, and the weir was allowed to fall to decay. The grandson of the younger brother, who raised the original claim, now renewed it; but also met

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with similar opposition on this principle of the law of the land, that the eel-weir having come into possession of the last occupier through his wife, who died without children, her right descended to her own brothers and their children, and not to her husband's brothers and their children. The value of this argument was fully acknowledged by the claimant; who, however, denied that it applied to the case in dispute, alleging that he did not claim the eel-weir as having belonged to the wife of his grandfather's elder brother, but through another female ancestor who had belonged to the same branch of the tribe, whose representative he was. The genealogical table 4 in the note will better explain the case.

From inquiries carefully made subsequently, I found this principle of law regulating the descent of real property to be everywhere acknowledged.

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When there is no male issue, the females succeed to their father's land; but then, too, their ability to hold it in opposition to the encroachments of male relations depends on the respect in which their husbands are held by the members of the tribe. Were they to marry aliens, their husbands could only obtain possession of their wives' land by force of arms.

The relative rights of the conquerors and the conquered to land, which once belonged to the latter only, and since their conquest have been retained by them with consent of the conquerors, are not quite fairly stated above; for as the writer belonged to a victorious and powerful tribe, his sentiments have naturally a bias in favour of the sole right being with the conquerors. If, however, a member of the conquered tribe were to be consulted on the same point, we should learn that he had not abandoned all idea of a right in the land he dwelt on. Instances could be referred to where the conquered remnant of a tribe have regained power enough to re-possess themselves of their former lands; and in all cases where the conquerors have sold to Europeans the lands of their tributaries, the latter have resisted the right of the sellers to dispose thereof irrespectively of their interests. The following letter from a narrative on this subject is not without interest:--

"This is written that foreigners may understand

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our title to the Aroha, 5 and to prevent the attempts of persons to offer it for sale clandestinely, as Ngatipaoa did to Mr. F------ and to Mr. T------. When news of that proceeding reached us, we objected to it; and afterwards, when Mr. F------ and Mr. T------ came to visit the place, we would not let the land go. I will tell you how another tribe came to have a right in our lands.

"In former times the men of the Aroha and the men of Hauraki lived peaceably each on their own lands. Afterwards a chief of Hauraki, named Te Apa, came on a visit to the Aroha. There he saw certain lands which he coveted, and evil entered his heart. So he commenced robbing the lands, and the stores of food; he also took away the clothes of women and children, and beat the men.

"Then the chief of that part of the country, named Puamanuka, took counsel with the other chiefs, and resolved to fight Te Apa.

"Soon after Te Apa came again with one hundred and forty men, and commenced robbing the eel-traps. But this time the chiefs of the country assembled all their tribes to resist him; and it happened that one of these chiefs, named Ngautoka, having detached his own tribe from the main body, in order to go to the place where all their property had been secured, fell in with Te Apa

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and some of his party, just as they reached it, and caught them.

"Then, said Te Apa, 'Let me live.' But Ngautoka replied, 'You shall not live; for you have done much evil.' So he killed Te Apa. And the men who escaped fled to Hauraki.

"As soon as it was known that Te Apa was dead, the tribes of Hauraki assembled, and came to fight with the men of the Aroha to obtain satisfaction for Te Apa. Then they began to kill each other: and the men of the Aroha were the victors.

"Afterwards some men of Hauraki came peaceably to the Pa of Puamanuka: but not finding him there, when it grew dusk one of them climbed up into a lofty swing-staff, 6 and looking round the country saw in the distance the light of a fire in the bush. At day-break they all went away, and returning to Hauraki, said to their friends, 'The man we seek as payment will die.' So setting out secretly with a war-party, they led them straight to the spot in the bush where the light of the fire

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had been seen. There they found Puamanuka, as they expected, in a hut with his wife, and killed them.

"After the death of their chief, the men of the Aroha were defeated by the men of Hauraki: but the survivors still remained in possession of their own lands, while the conquerors returned to their own country, and never dwelt on the lands of the Aroha up to the time when foreigners first came to New Zealand. This is written that you may understand the right of conquered tribes to the lands on which they dwell."

In order to make more clear to the reader the existing differences in the nature of the titles to land in New Zealand, before any attempts to purchase it were made by Europeans, it will be convenient to distinguish the lands of the New Zealanders under four different classes.

The first class to comprise lands held by individuals, or by a few members of the same tribe jointly. In this class are included not only lands the titles to which are hereditary descent for many generations, but lands which have been taken actual possession of by conquerors for their own use, the title to which may therefore be of a recent date.

The second class--lands over which many of the same tribe have, to a great extent, a joint right, but which may contain within their boundary smaller

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detached portions, the property sometimes of one, sometimes of more persons.

The third class--land lying between the lands occupied by neighbouring tribes, claimed by both, but occupied by neither. 7

The fourth class--land, the original possessors of which have been conquered by another tribe, who have allowed a remnant of the former to continue in occupation.

Lands of the first class, native proprietors sell with the greatest reluctance. They seldom, if ever, offer them for sale voluntarily: and, in many cases, no price that any one would give will tempt them to alienate this their freehold property, the title to which is undisputed.

Lands comprised under the second class are readily offered for sale: but it frequently happens that this is the act of a part only of the proprietors, without the knowledge of the rest--for the New Zealanders have a great propensity to conceal the claims of all who are at a distance--and it is this circumstance which renders it so difficult, even for a person tolerably conversant with the language and manners of the people of the country, to discover all lawful owners. Hence it cannot be wondered at, that purchases of land made by Europeans directly from natives, in former days, before any Govern-

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ment was established, should have given rise to disputes when the titles of the sellers afterwards came to be investigated. Sales of this unfair description have been stigmatized by the natives themselves by the epithets, hoko puku, hoko huna, hoko tahae (secret, hidden, and thievish sales); and though the parties aggrieved generally went no further in showing their opposition than to write protests to the Governor on the subject, they let it to be understood that they were quite prepared to maintain their rights by force, if any one should attempt to take possession of their portions of the land thus sold clandestinely.

The following protest against the sale of a place called Maunga-tapu, 8 besides throwing some light generally on the subject of titles to land, gives an example of a remarkable fact, namely, the transfer of land as payment for loss in war, with a view to establish peace on an equal basis. The design of the protest is to show how families belonging to another tribe came to have a right in Maunga-tapu, which had been part of the hereditary land of the tribe Ngati-Tawhaki:--

"The original right to the land was Mura's.

Mura begot Parenoa (a female).
Parenoa " Te Hopukanga.
Te Hopukanga " Mauroa.
Mauroa " Te Hiore
Te Hiore " Te Kauae. 9

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"The tribe Ngati-Tawhaki was defeated by Haua and Hapi, 10 in two pitched battles in one day--the battles of Nga-taierua and Wakapapaenoa. Some time after, Ngati-Tawhaki attacked Waikato, and killed a chief named Mataroa. Then Werewere went against Ngati-Tawhaki, and besieged one of their Pa, called Owaranga. The name of the chief of the Pa was Rurangi.

"So Werewere shouted out, 'Rurangi, come outside.'

"'Come and attack me where I am,' answered Rurangi.

"Then Werewere attacked the Pa, and was killed. Afterwards Te Oro and Haua went together to seek a payment for Werewere, but they did not obtain compensation: for after laying siege to a Pa called Tokerau, they could not take it. Then Te Oro shouted to the chief of the Pa, who was called Taha, 'Taha, give me your daughter for a wife;' and Haua shouted out, 'Let me too have one of your daughters, Taha.'

"'I will not give my daughters now,' replied Taha; 'but if you will return peaceably home, you may come back to fetch a wife for each of you.'

"So Te Oro and Haua went home, and then returned to fetch their wives, taking with them a party of seventy men. And when they arrived at the Pa,

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Paretapu and Pareomaoma were given them for wives: and thereon peace was made.

"Te Oro took to wife Paretapu: and had a son named Te Ahuroa. Te Ahuroa married Hinemateora. Their children were Te Tiwha and Namaioro, and two daughters, Pareteoro and Te Kiri.

"On another occasion, land was given up as a payment for Werewere's death.

"It happened thus. A party of about forty of Ngatitawhaki went to Pakerau. On their arrival, they found that all the men of the Pa had gone out eel-catching; and that Pare was the only female of rank left at home.

"So the forty shouted out to the Pa, and sat down to rest on the ground. Then their hostess had fires lit to roast fern-root for the guests. There were ten of these fires; and when the food was dressed the strangers gathered round to partake of it. And their chief, taking notice of their hostess, inquired, 'Whose daughter is this?' To which some one replied, 'She is Werewere's daughter.' Then said the chief of the guests, whose name was Pupua, 'Don't pound the fern-root, my daughter, as if you were angry with me. Look, my child. What say you to the land stretched out in that direction. I mean Maunga-tapu, which stands before you.' Thus was Maunga-tapu given over as payment for Werewere."

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In conclusion, the writers of the protest advise, that all persons who sell land clandestinely, belonging to others, shall be obliged, in return for the goods they have received as payment from Europeans, to give up some land which absolutely belongs to them.

With regard to land of the third class, it is manifest that neither of the parties having a right thereon could give a good title independently of the other. Yet some of the largest claims to land advanced by Europeans depended on purchases made solely from one or other of these parties.

Lands of the fourth class also have been frequently sold, or offered for sale to Europeans, by the conquerors, without consideration for the rights of those who remained in actual possession of the soil. If, however, the rights of the latter to some portion of it were not recognized, they would be outcasts, without place of residence or means of support. Yet so far does self-interest warp the judgment, that it has been gravely maintained, by persons who had purchased lands of this description from the conquerors, that the rights of its conquered inhabitants, whatever they might once have been, ought to be considered to have ceased at the time of their conquest.

From such complicated titles to land, accompanied with a readiness on the part of the sellers to conceal all adverse claims--in fact, to cheat the

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buyer as far as practicable--it will be evident to any one, that to make an unexceptionable purchase of land from the aborigines of New Zealand requires both experience and caution; yet for some time previous to the establishment of Government, every foreigner who came to the country inquired eagerly for land; and was generally in so great a hurry to anticipate others who might come to outbid him, that he readily paid a considerable deposit of goods for whatever was offered, without knowing anything about the real value of the title. In fact, the idea appears to have been general, that the New Zealanders had no defined titles to lands, and that nothing was more simple than to purchase the lands, which they seemed to value so little. On the other hand, the New Zealanders, seeing the readiness with which Europeans would part with their goods in exchange for land, without much inquiry as to the titles of the sellers, sold them lavishly land to which their rights were disputed, and, sometimes, to which they had no right whatever.

No wonder that, when the titles of the purchasers came to be investigated, the persons whose duty it was to make known the true state of the case should incur the odium and abuse of many who saw their extravagant hopes of being lords of a splendid territory destroyed.

I ever found the New Zealanders ready to acknowledge the evils resulting to themselves from

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the unfair and indiscriminate system of selling land, which prevailed to such an extent before put a stop to by the treaty of Waitangi: and judging from conversations on the subject with their more sensible and influential chiefs, and from frequent letters of caution written by them regarding clandestine sales, I believe that, at any general meeting of themselves, the unbiassed expression of their sentiments would have been in favour of leaving the purchase of the lands they wished to sell under the superintendence of the Government. A great number of the colonists, however, particularly those who had before been engaged in land speculations of the nature referred to, desired to have again liberty to purchase land directly from the natives: and having in their interest a cleverly conducted journal, they tried to make it appear that a sense of justice to the aborigines was one of their most powerful motives. "By the Government asserting a preemptive right," they argued, "the native is deprived of the privilege of offering his land to the highest bidder, and of his right as a freeholder." They thus gained the ear of Governor Fitzroy: and the better to support their representations, they even got up deputations of the natives who lived near Auckland to petition for the restoration of the unrestricted right of selling their land to the public. A reply might have been given these natives, the force of which they would not have denied; namely,

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that to allow them to sell land as they demanded would lead to constant attempts at fraud on their part, and to endless disputes both with each other and with the colonists; and the deputation might without difficulty have been even made to confess, that to grant their petition would be to do them an injury.

Unfortunately, the only persons who could have elicited from the natives these sentiments were either not on the spot, or out of deference to popular influence allowed themselves to become parties to the mystification. And so general was the mania for buying land, that no one ever considered for a moment that if in more civilized countries, where buyers and sellers spoke the same language, it was not thought prudent to purchase land without appealing to some competent authority to examine the title of the seller, it could hardly be safe in New Zealand for Europeans, not well versed in the language and customs of the country, to purchase land from natives without the intervention of a competent and legally authorized person.

Under certain conditions, I believe, permission might have been granted to the settlers to purchase limited quantities of rural lands from the aborigines, with mutual advantage to both parties: and in a letter 11 written to Mr. Hawes on the nature and extent of the natives' titles to the lands of New

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Zealand, I suggested those conditions which appeared to be necessary to secure the interest of both buyers and sellers--if ever the Government should think it advisable to adopt such a measure.

In New Zealand, where there is a large and intelligent aboriginal population, watchful of every act of the white population, it has always appeared to me an error to give to land a value fictitiously large, in order to make it bear the expense of surveys, immigration, and other necessary charges, while these charges might have been provided for by some other sort of tax; for by so doing a great inducement is offered to the native landholder to insist on a corresponding high price for his waste lands. On the contrary, by allowing the natives to sell moderate quantities of land, from time to time to settlers--subject to the conditions above referred to -- a direct and visible interest in the colonization of the country would be given them: and, as the sales of their lands would be materially damaged by reports of acts of violence on their part, a powerful guarantee for their peaceable and quiet dispositions would be thus provided.