England and the New Zealanders, Part I

George Augustus Selwyn

First published by College Press in 1847

Digitised and made available online by Auckland Libraries and the University of Auckland Libraries and Learning Services.

Epub © 2013 Early New Zealand Books Collection

ISBN 978-1-927279-71-7

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[TITLE PAGE]

ENGLAND
AND THE
NEW ZEALANDERS.

PART I.
REMARKS UPON A DESPATCH PROM THE RIGHT HON. EARL GREY,
TO
GOVERNOR GREY, DATED DEC. 23. 1846.

BISHOPS' AUCKLAND:
PRINTED AT THE COLLEGE PRESS.
1847.

[CONTENTS]

I. Proof that Earl Grey's instructions involve a breach of the National Faith of Britain.

II. Proof that Earl Grey's instructions involve a violation of established Law.

III. A Protest against the general doctrine put forth by Earl Grey, as the principle upon which Colonization should be henceforward conducted by Britain.

Together with an Appendix of practical considerations.

I. Proof that Earl.Grey's instructions involve a breach of the National Faith of Britain.

ENGLAND AND THE NEW ZEALANDERS.

I. Proof that Earl.Grey's instructions involve a breach of the National Faith of Britain.

1. The circumstances under which our connection with New Zealand commenced are clearly stated in the following words of Sir Robert Peel. 1

"In 1834 there had been a strong feeling on the part of the public of this Country, that England was chargeable with injustice in its treatment of the Aborigines. – Sir Fowell Buxton moved in 1834, in this house, an address to the Crown to this effect: "That deeply impressed with the duty of acting on the principles of justice and humanity with the Native Inhabitants of British Colonial Settlements, we call upon the Crown to adopt different principles from those which have been heretofore acted upon in some of our Colonial Establishments."

"In 1836, a Select Committee was appointed at the instance of the same Sir Fowell Buxton; evidence was taken in that year, and a Report was made in 1837 – a most full and able document – detailing the result of our relations with the natives in some of our Colonial Settlements, which made a deep impression on the Country. This is one of their observations, "It may be presumed that the Native Inhabitants of any land have an incontrovertible right to their own soil – a sacred right, which however, appears not to have been understood by this Country." 2

"That Report was made in 1837, and iu 1839 arose the question whether we should form new relations with New Zealand. The Marquis of Normanby was acting under the influence of the recommendations contained in that Report."

"The first Despatch which Lord Normanby wrote, referred expressly to the Report of your Select Committee and your adoption of the principles of that Report, which had made a deep impression on the public mind, with regard to the relations you should establish with the Aboriginal Natives of any Country in which you might form a Settlement. You agreed to the address praying the Crown to protect the rights of the Aborigines; You are responsible for the appointment of these Committees; and you are responsible for the doctrines laid down in their Reports, for you adopted them."

"Lord Normanby says: "The ministers of the Crown have deferred to the advice of the Committee appointed by the House of Commons, in the year 1836, to inquire into the state of the Aborigines residing in the vicinity of our Colonial Settlements; and have concurred with that Committee in thinking that the increase of national wealth and power, promised by the acquisition of New Zealand, would be a most inadequate compensation for the injury that must be inflicted on this kingdom itself by embarking in a measure essentially unjust, and but too certainly fraught with calamity to a numerous and inoffensive people, whose title to the soil and sovereignty of New Zealand is indisputable, and has been solemnly recognized by the British Government." 3 The Report of the Commitee had said that the right of the Natives to their Country is incontrovertible, and Lord Normanby, in establishing his relations with New Zealand, refers to the Report of the Committee and states that the right of the people of New

Zealand to the soil and sovereignty of the Islands is indisputable.

"Then you acknowledged New Zealand as a Sovereign and Independent State. Now I think that you were wrong in doing so. – These however are the engagements which we formed, and by which we must be bound."

"Look at the instructions that were given in 1839 to Captain Hobson. 4 "The Queen in common with her Majesty's predecessor disclaims for herself every pretence to seize on the Islands, or to govern them as a part of the dominions of Great Britain, unless the free and intelligent consent of the Natives expressed according to their established usages be obtained. Her Majesty's Government authorize you to treat with the Aborigines for the whole or any part of those Islands, which they may be willing to place under Her dominion." Lord Normanby writes, "The Natives may probably regard with distrust a proposal which may carry on the face of it the appearance of humiliation on their side and of a formidable encroachment on ours. – These however are impediments to be gradually overcome by the exercise, on your part, of mildness, justice and perfect sincerity in your intercourse with them. You will, I trust, find powerful auxiliaries among the Missionaries who have won and deserved their confidence." Lord Normanby went on to say, 5 "Having by these methods obviated the danger of the acquisition of large tracts of Country by mere land-jobbers, it will be your duty to obtain, by fair and equal contracts with the Natives, the cession to the Crown of such Waste Lands as may be progressively required for the occupation of Settlers resorting to NewZealand."

There is then no claim here on the part of the Crown to

possession of the territory in consequence of sovereignty.

"But Captain Hobson is not merely directed to treat with the Natives, according as the wants of the settlers might arise, for lands not actually enjoyed or occupied by them, but for the waste Lands of the Islands, with the express admission that those lands were of no value to the natives; for Lord Nor-manby proceeds: 6 "To the Natives or their Chiefs much of the land of the Country is of no actual use, and in their hands it possesses scarcely any exchangeable value." Is it not clear then that Lord Normanby's Instructions to Captain Hobson were to take the lands, not by any prerogative of the Crown, but by cession from the Natives. You must hear the qualifications and reserves under which the Natives of New Zealand entered into this engagement. Observe what the treaty was that was framed under these Instructions to Captain Hobson:

"Captain Hobson reports to the Authorities at home that in pursuance of Lis instructions he summoned the Native Chiefs. – He goes on to say: "When I had finished reading the Treaty, I invited the Chiefs to ask explanations on any points they did not comprehend, and to make any observations or remarks on it they pleased. Twenty or thirty Chiefs addressed the meeting, five or six of whom opposed me with great violence, and at one period with such effect, and so cleverly, that I began to apprehend an unfavorable impression would be produced. Rewa, while addressing me, turned to the Chiefs, and said, "Send the man away – do not sign the paper: if you do, you will be reduced to the condition of slaves, and be obliged to break stones for the roads. Your land will be taken from you,and your dignity as Chiefs will be destroyed."

"That was the language of the opposing chief. At the first pause Nene came forward and spoke with a degree of natural eloquence that surprised all the Europeans, and evidently turned aside the temporary feeling that had been created against us. He first addressed his companions. "Reflect," he said "on your condition, how much you have been exalted by European intercourse. How impossible it was for you to govern without frequent wars and bloodshed;" and he concluded by saying "they should receive us, and place confidence in our principles."

"This, remember, is a dry official report."

"You must," he continued, "be our father. You must not allow us to become slaves." "You must preserve our customs, and never permit our lands to be taken from us." – Can you resist such an appeal to your equity and honour? Do not hastily renounce that character for honour and good faith to which this Native Chief appealed in his eloquent address.

"He said to the surrounding audience, "Rely on British honour;" and to the British Representative, "You must be our father – take care our lands are not seized on against our will" –

"One or two other Chiefs who were favorable followed him in the same strain. – The consequence was that the Treaty was signed. These were the circumstances under which this inconvenient Treaty was made; and I ask, will you commence your relations with the Colony by an abandonment of the obligations you have entered into?"

So far was the Colonization of New Zealand from being undertaken by the British Government for any purpose of territorial aggrandizement or of providing waste lands for the people of Great Britain, that Lord Normanby in the same despatch,

declares, 7 "It can no longer be doubted that an extensive settlement of British subjects will be rapidly established in New Zealand, and that, unless protected and restrained by necessary laws and institutions, they will repeat unchecked, in that quarter of the globe, the same process of war and spoliation, under which uncivilized tribes have almost invariably disappeared, as often as they have been brought into the immediate vicinity of emigrants from the nations of Christendom. To mitigate, and if possible, to avert these disasters, and to rescue the emigrants themselves from the evils of a lawless state of society, it has been resolved to adopt the most effective measures for establishing among them a settled form of civil government. To accomplish this design is the principal object of your mission."

And so far was it from being intended to seize any portion of the lands of New Zealand, that Captain Hobson was further instructed by Lord Normanby, as follows, 8 "All dealings with the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith, as must govern your transactions with them for the recognition of Her Majesty's Sovereignty in the Islands. Nor is this all. they must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory, the retention of which by them would be essential or highly conducive to their own comfort, safety, or subsistence. The acquisition of land by the Crown for the future settlement of British subjects must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves."

Lord Normanby's successor in office, Lord John Russell, in a Despatch of July 17th. 1840, 9 to Sir George Gipps, after acknowledging the receipt of papers including Captain Hobson's report of his proceedings at Waitangi, says. "Her Majesty's Government, entirely approve of the measures which you adopted, and of the manner in which they were caried into effect by Captain Hobson." And afterwards, in his Despatch of December 9th. 1840, 10 speaking of the New Zealanders, he says "They have keen formally recognized by Great Britain as an Independent Slate; and even in assuming the dominion of the Country this principle, was acknowledged, for it is on the deliberate act and cessiou of the Chiefs, on behalf of the people at large, that our title rests."

The Royal Instructions to Governor Hobson, 11 on this point run thus:

"And it is our further will and pleasure – that you do especially take care to protect them, (that is, 'the native inhabitants of our said Colony, or of the lands and islands thereto adjoining,') in their persons and in the free enjoyment of their possessions, and that you do by all lawful means prevent and restrain all violence and injustice which may in any manner be practised or attempted against them."

And shortly afterwards the same Minister in a Despatch dated January 23th. 1841, 12 states: "Her Majesty, in the Royal Instructions under the sign manual, has distinctly established the general principle that the territorial rights of the natives, as owners of the soil, must be recognized and respected; and that no purchases hereafter to be made shall be valid, unless such purchases be effected by the Governor of the Co-

Parl. Pap. May, 1847. p. 27.

lony on her Majesty's behalf. – The Surveyor General should be required from time to time, to report what particular tract of land it would be desirable that the natives should permanently retain for their own use and occupation. Those reports should be referred to the protector of Aborigines; and the lands indicated in them, or pointed out by the protector as essential to the well-being of the natives, should be regarded as inalienable even in favour of the local Government."

Does not this imply, that the lands not essential to the well-being of the natives were to be at their own disposal?

In the preceding month, the Under Secretary, Mr. R. V. Smith had, in a letter to Mr. Somes, dated December 2nd. 1840, thus stated the general principle by which the Crown proposed to be guided in its measures for the Government and Colonization of New Zealand:

"With regard to all lands in the Colony acquired under any other title than that of Grants made in the name of, and on behalf of, Her Majesty, it is proposed that the titles of the Claimants should be subject to the investigation of a Commission to be constituted for that purpose; the basis of that inquiry will be, the assertion on behalf of the Crown of a title to all lands situate in New Zealand, which have heretofore been granted by the Chiefs of those Islands according to the customs of the Country and in return for some adequate consideration."

It is to be remembered that Captain Hobson was sent to New Zealand not as Lieutenant Governor, but as her "Majesty's Consul at New Zealand. 13

The New Zealand Company having, in November 1842, attempted to disparage the weight and authority of Lord

Normanby's Despatch, that Document and the proceedings taken under it wire recognized and affirmed by the succeeding Government and by a third Colonial Minister. Mr. Under Secretary Hope says (10th January 1843,) 14 "Lord Stanley has received this intimation with extreme astonishment. The letter to which reference is made had been presented to Parliament and printed in the Session immediately preceding the date of the agreement with the New Zealand Company. In that letter Her Majesty distinctly recognized the proprietorship of the Soil in the Natives, and disclaimed alike all territorial rights and all claims of sovereignty which should not be founded on a free cession by them. Lord Stanley cannot allow the Company to plead ignorance of a document thus formally and authoritatively communicated to the public; or permit them to assume that in entering into the arrangement with them, Her Majesty could contemplate deliberately violating the faith which she had publicly pledged to the natives, in conveying to the Company rights which, on the part of the Crown, She had solemnly disclaimed."

The New Zealand Company also professed to doubt the validity of the Treaty, as being made, (as they alleged) "with naked savages," and suggested, that "it might be treated by lawyers as a praiseworthy device for amusing or pacifying savages for the moment." This attempt had only the effect of eliciting from Lord Stanley his confirmation of the Treaty. Mr. Hope, writing to the Company, 1st. February 1843, 15 says "Lord Stanley is not prepared, as Her Majesty's Secretary of State, to join with the Company in setting aside the treaty of Waitangi, after obtaining the advantages guaranteed by it, even "though it might be made with naked savages, or though

it might be treated by lawyers as a praiseworthy device for amusing or pacifying savages for the moment." Lord Stanley entertains a different view of the obligations contracted by the Crown of England; and his final answer must be that, as long as he has the honor of serving the Crown, he will not admit that any person or any Government, acting in the name of Her Majesty, can contract a legal, moral, or honorary obligation to despoil others of their lawful or equitable rights."

And Sir Robert Peel in the New Zealand Debate of June 1845, 16 referring to the suggestion made by the New Zealand Company, said "I believe there are a good many lawyers in the New Zealand Company, and this may be the language of lawyers. – But what was the language of statesmen."

After citing Lord John Russell's Despatch abovementioned. Sir R. Peel proceeded to say, "That was the language held by statesmen. That Treaty was entered into with as much formality as their usages permitted; and are you now prepared because you find the engagements onerous and inconvenient – inconvenient to yourselves but injurious to the Natives even – are you prepared to disclaim and repudiate the act of Statesmen, and to concur with the lawyers, that the Treaty is a mere praiseworthy device for amusing and pacifying savages?" 17 "I ask, will you commence your relations with the Colony by an abandonment of the obligations you have entered into? I will say, if ever there was a case where the stronger party was obliged by its position to respect the demands of the weaker, if ever a powerful country was bound bv its engagements with a weaker, it was the engagement contracted under such circumstances with the Native Chiefs."

Lord Stanley writing to Lieutenant-Governor Grey, June 13. 1845, says, "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 honorably and scrupulously fulfil the conditions of the Treaty of Wnitangi." 18

Governor Grey, in a Despatch dated Bay of Islands, 24th. November, 1845 [?], 19 says, "I have agreed to receive upon Thursday next, the 28th. instant, a deputation of the principal chiefs, who are anxious to address me upon the subject of their lands, and upon the state of affairs generally. I shall not hesitate at once to relieve their apprehensions regarding their lands by assuring them that her Majesty has directed me scrupulously and honourably to fulfil the conditions of the Treaty of Waitangi.

On the 10th. December, 1845, Governor Grey transmitted home copies of an Address which he made to a number of the northern chiefs upon Friday the 28th. November. The address begins thus, 20 "Friends, Chiefs of New Zealand, the Queen has heard of the difficulties in which New Zealand is involved, and has therefore sent me here for the purpose of settling them. With a view to the arrangement of these difficulties, I have already instituted inquiries into the state of this country, and I shall continue to make these inquiries, and to ascertain the disposition of each tribe, and whether or no they have assisted the Government in putting down those who en-

gaged in prosecuting the present disturbances. – In the mean time, I assure the whole of the Chiefs, that it is the intention of the Government, most punctually and scrupulously to fulfil the terms and promises of the treaty which was signed at Waitangi on the arrival of Governor Hobson. I have heard that some persons, evil disposed both towards the Queen of England and the Chiefs of this Country, have told you that by your signing that paper you lost your lands. This I deny. By that Treaty you have the protection of the Queen, and your possessions are made sure to you. Your lands shall certainly not be taken from you without your own consent. You can sell your lands to the Queen or not sell them, just as you think proper; but remember that, when once you do sell them, they must be promptly given up."

In a Despatch of 10th. December, 1845, 21 Governor Grey writes "I think it only necessary to add in reference to the natives, that I have in the most public manner, in the strongest terms, and upon repeated occasions, assured them that I had been instructed by Her Majesty, most honourably and scrupulously to fulfil the terms of the Treaty of Waitangi; that their welfare and happiness was an object of the most lively concern to the Queen, and that it would be my most earnest desire to carry out her Majesty's most gracious wishes in their favour; and I am satisfied that these declarations on my part have produced a very favourable impression upon many of the most influential of the Chiefs."

In answer to these Despatches, the fourth Colonial Minister, Mr. Gladstone says, (26th. May 1846) "I have likewise the satisfaction of apprising you that Her Majesty's advisers

highly approve of your declaration with respect to the maintenance of the faith of the Crown in regard to the treaty of Waitangi." 22

The title then of Great Britain to this Country rests entirely upon a voluntary cession of the Sovereignty of the country to the Queen. Therefore, according to established principles of law, all private rights of property existing in the country at the time of the cession remain unaffected. By that cession, Great Britain has not acquired any land of any sort in the country, if that land have an owner among the natives, according to their own customs. Whether the land be actually occupied by its owner is not the question; but only, whether it have an owner.

2. The above would have been the state of the case, even if the Treaty had not contained any reference to the rights and property of the Natives. But in fact it did contain an express guarantee, and that in the strongest and amplest words.

By the 2nd. Article of the Treaty "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 and estates, forests and fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession."

These large and unrestricted words were introduced by us. We, and not the natives, drew and prepared the Treaty.

In pursuance of Lord Normanby's suggestion, Missionaries both of the Church of England and of the Wesleyan Mission were requested by Captain Hobson to obtain signatures to the Treaty in various parts of the country, "first explaining to them its principle and object, which," he said, "they must clearly understand before you permit them to sign." 23

All the Missionaries so employed by Captain Hobson, without one exception, have protested against the construction now attempted to be put upon the Treaty. They affirm, that they explained the Treaty to the natives in its natural and obvious sense – that they have since repeatedly silenced objections on the part of the natives to the British Government by reference to the Treaty as so explained – and further, that it is their belief, that by no other explanation could they have obtained the signature of a single chief throughout the country.

Major Bunbury also was employed by Captain Hobson for the purpose of obtaining signatures. In the discharge of this duty he visited the southern Island, and the principal chiefs of that Island also became parties to lhe Treaty, he proceeded even to Stewart's Island; and, in Foveaux Straits, he gave the following explanation of the Treaty: – "The Treaty guarantees the full and exclusive possession of their lands and other properties to the Natives." 24

Lord J. Russell writes to Captain Hobson, 30th. March 1841, "I have received your Despatch No. 7, of the 15th. of October last, inclosing reports from the various gentlemen whom you had commissioned to treat with the native Chiefs for the purpose of effecting their adherence to the Treaty of Waitangi.

I have to convey to you the approval of Her Majesty's government of the measures which you adopted throughout these negotiations." 25

In a translation of a letter, in the New Zealand language, which Governor Hobson "addressed as a Circular to the Chiefs generally," and transmitted to Lord J. Russell 15th. October 1840, is the following passage: – "And although the many white people say, The natives will be intentionally cast back; their country, lands, and sundry property will be taken from them for nought; I say peaceably, civilly, This is false. Believe not these sayings. Presently you will see the truth of what I have said and done." 26

In answer, Lord J. Russell says 17th. April 1841. "I have read with much interest the specimens which you have transmitted of your correspondence with the native Chiefs, and I approve in every respect the tone and tenor of those communications." 27

Governor Grey, on the 12th. December 1847, addressed the Legislative Council in these words: – "I feel it to be due alike to the interests of both races of Her Majesty's subjects within this Colony, to take this the first public opportunity which has been afforded me of stating, in the most explicit terms, that I have been instructed most honourably and scrupulously to fulfil the conditions of the Treaty of Waitangi, by which the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which the chiefs and tribes of New Zealand and the respective families and individuals thereof may collectively or individually possess, was confirmed and guaranteed to them so long as it may be their wish and desire to retain the same.

In February, 1846, Governor Grey, in answer to a letter addressed to him by 15 of the most influential chiefs in the District of Port Nicholson, wrote thus: "Maories and Euro-

peans shall be equally protected, and live under equal laws. Both of them are alike subjects of the Queen, and entitled to her favour and care. The Maories shall be protected in all their properties and possessions, and no one shall be allowed to take any thing away from them, or to injure them. The Europeans shall be protected in their property and possessions, and no one shall be allowed to take any thing from them, or to injure them." 28

The Cession of Sovereignty – the assurances accompanying it – the words of the Treaty and of numerous subsequent affirmations of that Treaty – could have but one meaning. The natives could not understand by them any thing else than this; that whatever they, amongst themselves, called and considered their own, should be as much their own after our coming as it was before.

On our part we used on every occasion the largest and most comprehensive terms, without a single word of exception or reservation: and we are not free now to narrow and limit those terms, by putting upon them a private construction of our own.

In conformity with the assurances so given, the territorial rights of the natives have been repeatedly recognized by Acts of the Colonial Governments:

1. By the Inquiries conducted by the Commissioners of Land Claims, Mr. Spain, Major Richmond, and Colonel Godfrey; who (one or other of them) held Courts of Inquiry at a great number of places in both Islands from the North Cape even to Otakou, and who proceeded always upon the principle that the Ownership of the Soil (whether waste or not) is vested in such persons as, according to native custom and understanding, are deemed to be the owners thereof. 29

2. By purchases of large tracts of land, in various parts of the country, without making any distinction between land already subdued by man's labour and lands wholly unsubdued.

The native right of property in wild land has been acknowledged quite as strongly by the acts of the New Zealand Company, as by those of the Colonial Government. For the Company also bought, or professed to buy, land, without any distinction as to its character or condition at the time.

In fact the territorial rights of the natives had been most distinctly asserted in the following extract from the Prospectus of the New Zealand Association of 1837; which Association was afterwards merged in the New Zealand Company of 1839.

"A recent change of opinion in this country on the subject of the rights of uncivilized nations now forbids the invasion and confiscation of a territory which is as truly the property of its Native inhabitants as the soil of England belongs to her landlords; and though it were as easy now to pursue the old course of substituting might for right, yet this would defeat a main object of the present undertaking; with our views, it would be a folly, as well as a crime, to do violence to any inclination of the Natives; and it follows, that in all our proceedings the national independence of the New Zealanders already acknowledged by the British Government in the appointment of a Resident and the recognition of a New Zealand flag, must be carefully repeated; and especially that we should not attempt to convert any part of their country into British territory without their full, free, and perfect understanding, consent, and approval."

The result then is that, by solemn and repeated words and deeds, our national faith is pledged to the following rule:

All lands in New Zealand which have any owners according to native custom, do still belong to those owners: whilst all lands which have no owners, fall to the Crown, by virtue of the Cession of Sovereignty.

1 Debate on N. Z. June, 1845, p. 239.

2 Report, p. 5.

3 Parl. Pap. April, 1846. p. 37.

4 Parl. Pap. April, 1840. p. 38.

5 Ibid. p. 39.

6 Ibid. 39.

7 Ibid. p. 37.

8 Ibid. p. 39.

9 Parl. Pap. 1841, p. 42.

10 Parl. Pap. 1841, p. 42.[??]

11 Parl. Pap. 11th. May, 1841, p.42.

12 Parl. Pap. 1841, p. 42.

13 Ibid. p. 37.

14 Parl. Pap. July 1844. App. p. 21.

15 Ibid. p. 36.

16 p. 243.

17 p. 215.

18 Parl. Pap. May 18, l846.

19 Parl. Pap. 1846. p. 10.

20 Ibid. p. 13.

21 Ibid. p. 18.

22 Ibid. p. 37.

23 Parl. Pap. 1841. p. 17.

24 Ibid. p. 107.

25 Ibid. p. 112.

26 Ibid. p. 113.

27 Parl. Pap. 1845-6. p. 23.

28 Parl. Pap. August, 1846. p. 19.

29 Reports of Commissioners.

II. Proof that Earl Grey's instructions involve a violation of established Law.

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." 30

"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." 31

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." 32

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." 33

"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." 34

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." 35 "In New Jersey, the proprietaries very early secured all their titles by Indian purchases." 36 "In 1758 the Indians, at a treaty at Easton, released, for a valuable consideration, all claims to lands in New Jersey." 37

"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." 38

"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."

"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." 39

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

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

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. 40

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." 41

It is true that the policy which anciently guided the Colonizing operations of Britain was practically abandoned in the

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. 42

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

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." 43

"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

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, 44 "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."

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.] 45

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.

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, 46 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." 47

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-

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." 48

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." 49

Now, without noticing minutely the vagueness and uncer-

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

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-

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.

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.

30 Kents' Commentaries III. 385. (Lecture 51.)

31 Ibid. 383.

32 Ibid. 391.

33 Bancroft Hist, of U. S. Vol. I. p. 346.

34 Kent. p. 391.

35 Ibid. p. 392.

36 Ibid. p. 394.

37 Ibid. p. 395.

38 Ibid. p. 390.

39 Ibid. p. 398.

40 Collection of Commissions etc. by Francis Maseres, London, 1772, p. 89-91.

41 p. 125.

42 N. Z. Debate, p. 210.

43 Government Gazette, July 6, 1847.

44 Ibid. p. 384.

45 Report, July 29, 18-14. Appx. p. 475.

46 Section 5.

47 Section 6.

48 Sections 6 & 7.

49 Section 9.

III. Protest against the general doctrine put forth by Earl Grey, as the principle upon which Colonization should be henceforward conducted by Great Britain.

ENGLAND AND THE NEW ZEALANDERS.

III. Protest against the general doctrine put forth by Earl Grey, as the principle upon which Colonization should be henceforward conducted by Great Britain.

It is not intended to enter into any argument as to the merits of the theory itself, but simply to protest against it, on the several grounds following:

1. It is hardly necessary to protest seriously against receiving any one man's authority as conclusive, in any matter of mere theory.

But, if one man's authority could be so received, certainly not Dr. Arnold's. Few men have put forth more theories; and few men's theories have won, hitherto, less acceptance. The one theory upon which he reflected most (that of Church and State) appears not to have been accepted by any one of the friends whose judgment he himself most highly valued. [See Life of Dr. Arnold, by Stanley.]

2. If any writing of Dr. Arnold's could possess such authority, certainly it would not be the writing which Earl Grey quotes.

The passage cited occurs in an article written for a Newspaper. . (Englishman's Register, No. 6. June 11th. 1831.) The article begins thus,

"The Labourers of England.

"Since the publication of our last Number, I have happened to meet with some other writings upon this subject, which profess indeed to remedy the distresses of the poor in a manner sufficiently summary. According to them, etc." Dr. Arnold then enters into an argument, of which the passage cited by Earl Grey forms a part.

That "last number" – No. 5. – was published June 4th. 1831. The writings then were met with, considered, and answered – and the answers published – -within the course of one week at the longest. 50

Earl Grey remarks, by way of a reason for accepting the passage cited by him as of authority, that "it was written not with reference to passing events or to any controversy which was at that time going on, etc." Does not the very first sentence of the Article, as just quoted, show the contrary to have been the fact?

The hastiness of the composition further appears from this, that the only statement made in the course of the Article, as of a matter of fact, is erroneous. It is not true, as Dr. Arnold assumes, that "our fathers took possession of the hunting grounds of the Indians." It has been shown above that they bought, and did not take, those hunting grounds.

3. This theory itself is expressly rejected by one author (at least) of not inferior authority, in a work written deliberately. Paley says, 'We now speak of Property in Land: and there is a difficulty in explaining the origin of this property consistently with the law of nature: – Moralists have given many different accounts of this matter; which diversity alone perhaps is a proof that none of them are satisfactory. One tells

us that, etc, – Another says that each man's limbs and labour are his own exclusively; that, by occupying apiece of ground, a man inseparably mixes his labour with it; by which means the piece of ground becomes thenceforward his own, as you cannot take it from him without depriving him at the same time of something which is indisputably his. – But this will hardly hold in the manner it has been applied, of taking a ceremonious possession of a tract of land, as navigators do of new discovered islands, by erecting a standard, engraving an inscription, or publishing a proclamation to the birds and beasts, or of turning your cattle into a piece of ground, setting up a landmark, digging a ditch or planting a hedge round it. Nor will even the clearing, manuring, and ploughing of a field give the first occupier a right to it in perpetuity, and after this cultivation and all effects of it are ceased. – Another, and in my opinion a better, account of the first right of ownership is the following: etc." 51

4. The theory, whether sound or unsound in itself, was not intended by Dr. Arnold to be applied to a case like this of New Zealand. When Earl Grey transfers it to the case of New Zealand he does so contrary to the express words of the author or propounder of the Theory itself.

Dr. Arnold limits his doctrine to "countries which have been hunted over but never subdued" – to "mere hunting-grounds – to "lands on which man had hitherto bestowed no labour."

Earl Grey himself says

"It is ture the New Zealanders, when European settlements commenced among them, were not a people of hunters;

they lived, in a great measure at least, upon the produce of the soil, (chiefly perhaps its spontaneous produce,) and practised to a certain extent a rude sort of agriculture." 52

In fact, a large part of the surface of these Islands – by far the larger part of the surface of this Northern Island – has been cleared and subdued by the labour of the native people.

5. This theory has been disclaimed, by solemn and repeated acts and declarations, in the name and by the authority of Kings and Queens of England, during the Colonization of North America. This has been shown above.

And it is to be remarked that, not only were those acts and declarations inconsistent with the theory; but that, precisely the same theory was distinctly propounded more than a hundred years ago, and was rejected by our fathers.

Dr. Arnold and Earl Grey were anticipated by the Revd. Mr. Bulkley of Connecticut in 1724. "But" says Mr. Chancellor Kent, "whatever loose opinions might have been entertained, or latitudinary doctrines inculcated in favour of the abstract right to possess and colonize America, it is certain that in point of fact the Colonists were not satisfied, or did not deem it expedient, to settle the country without the consent of the Aborigines, procured by fair purchase under the sanction of the civil authorities." 53

6. The New Zealanders, being British subjects, are entitled to the protection of British law.

Now, by British law, certain rights of property are recognized and maintained, which are based, not on labour expended, but simply on the custom or law of the country. This is the case with many moors and wastes in England and Scotland, used for sporting only. The persons, whom the Law regards as proprietors of those tracts, can only be called such in a lower sense than that in which the term might be applied to the North American Indian ranging over his forests. The acts of dominion or ownership are fewer in number, and less important, on the part of the Englishman than of the Indian: the Indian's game being his food, whilst the Englishman's game is only his sport. Yet this lowest of all kinds of property is protected by English laws, under severe sanctions.

By the new principle, every labourer has a natural right to occupy any uncultivated land in any country.

7. The old principle having been nationally re-asserted and applied to the case of New Zealand by a treaty in the Queen's name, by express recognitions and confirmations by four successive Colonial Ministers in the name of successive Governments (to say nothing of words and deeds in the Colony itself);

Is it possible to admit an after-thought of a fifth Colonial Minister, on the supposed authority of Dr. Arnold? Is it not too late, when the Colony has been founded on a principle directly opposite to the doctrines now propounded?

8. What would be the practical result of the application of these new principles to New Zealand, may be inferred from the following brief statement of the actual position of the natives, in respect of the soil of their country.

A few centuries back, the forefathers, of the present native people reached this country. In order to cultivate, they be-

gan to clear away, by the aid of fire, the forest which then; covered nearly the whole of the land. Every year a fresh strip of forest was burned off, and a fresh strip of soil cultivated. So the different parties of immigrants advanced inland: some from the sea; others, who happened to have explored a river or discovered a lake, from the banks of the river or the lake.

In this way a very large portion of the surface has been cleared: in this Northern island, probably not less than two thirds of the whole. That the process has been such as is here described, is made apparent to a person travelling across the country, by charred and broken stumps of trees remote from any existing forests – by forest trees still growing in patches on spots inaccessible to cultivation, or in belts along the very edges of watercourses, etc. 54

At such points of the cleared portion as are eligible for purposes of defence, of fishing, etc, permanent villages have been established: but the natives are generally met with in temporary dwellings on the borders of the forests. For example, near Auckland are a few villages on the sea coast. Travelling thence inland for 20 miles over an open country, you find at Papakura a piece of forest (rapidly decreasing) and a native village. Ten miles further, over fern hills, bring you to a second village (Tuimata), at the edge of a second forest. After some miles of forest, broken at intervals by old clearings, you enter upon cultivations, which extend upwards from the valley of the Waikato.

Again at Tauranga, in the Bay of Plenty, there are several

villages on the sea coast. Travelling inland, towards the South for about 12 miles, you reach native villages on the skirt of the forest. After about 15 miles, you emerge from the wood, and meet a party of cultivators, of another tribe, who have worked upwards from the lake of Rotorua.

The same appearance presents itself to an observer standing on the height of the Wairere, looking Westward across the upper part of the plain of the Thames to Matamata with its forest and two pas, and thence to Maunga Tautari, with its scattered villages, where the cultivators are again settled a-long the borders of the wood.

Indeed, the same state of things recurs, on a larger or smaller scale, in all parts of the country.

In this position the natives are uniformly found. Behind them lies the tract which they or their progenitors have subdued; before them is the forest, into the heart of which they continue to work year after year.

To the natives both tracts are of value; but the value of the unsubdued land is far higher than that of the other. The cleared land affords fern root and runs for their pigs; the swamps yield raupo for their houses, and flax for clothing and for trade; the streams supply ducks, eels and other fish. But the woodland is the source of fuel and of timber for houses and pas, and for canoes, and for the demands of the timber trade. It supplies harbour and breeding places for their pigs; but above all, it is that portion of the soil by the yearly appropriation of which they mainly subsist. It is, in their present state of agriculture, the very bread in their mouths.

They are now to be told that the land already cleared belongs to them, but that the forest land belongs to the Queen: – that to the latter they have no right at all, because they have expended no labour upon it; but that the Queen, who

also has expended no labour thereon, has an absolute right. That, from which they and their forefathers have derived substantial benefit, and which they have been by daily labour evincing their determination to subdue, is to be yielded up at the command of a distant power; that command, moreover, being issued in violation of solemn promises and assurances to the contrary, proceeding from the same power. They are to be required to sit down and starve, in order that in years to come (in some parts of the country, probably, not within a 100 years at the earliest,) a stranger may appropriate to himself that, which they are at this moment, putting forth their hands to appropriate to themselves.

Can we expect any human beings to acquiesce in a claim like this? especially, men so shrewd of head and strong of hand as the New Zealanders? and that too, when they have been in the habit for generations past, of waging deadly wars in defence of the least of these their rights.

9. But the new theory involves yet more serious consequences, and calls for a yet more solemn protest.

It is not confined to New Zealand. It enunciates a general principle, viz.

That we may enter into any other Country similar to New Zealand, and, without any reference to the usages or customary rights of the people of the country, may lay down our own definition of right, and confiscate the soil of the country in conformity with that definition. Nay, that we ought to do this by preference, – that, even though the natives may be willing to yield to us quiet possession upon receiving some compensation for that which they cede to us, yet we ought always to seize rather than to buy. We are to "avoid, as much as possible, any surrender of the property of the Crown." 55 Now, if the Queen

were to buy, and pay for, that which is declared to be her property, she would clearly by the very act of purchase surrender her property, and acknowledge it to belong to another.

British Colonization will spread in time over a large part of Polynesia, and the case of New Zealand will occur over and over again. As applied then to the whole Polynesian race, there is now asserted on behalf of Britain a right of invasion or seizure, subject only to such restrictions as we may be willing to impose on ourselves. To the practical working of such a doctrine we do not advert, though there has been abundance of recent experience in various parts of the Pacific. Everywhere, the assertion of a right to take has been met by a not less vigorous assertion of the right to keep. But it cannot be too seriously considered, that now, for the first time, it is announced by a Minister of the Crown of England, that, in the guidance of British Colonization hereafter, the old national principle of Colonization by fair purchase shall (so far as in that Minister lies) be abandoned, and, in its stead, the new principle of Colonization by seizure shall be adopted.

[Page 44 is blank]

50 Arnold's Miscellaneous Works, p. 143.

51 Moral Philosophy, Bk. 3. c 4.

52 "Mr. Banks saw some of their plantations, where the ground was as well broken down and tilled as even in the gardens of the most curious people amongst us. In these spots were sweet potatoes, coccos or eddas, which are known and much esteemed both in the East and West Indies, and some gourds. The sweet potatoes were placed in small hills, some ranged in rows and others in quincunx, all laid by a line with the greatest regularity." (Cooks First Voyage, II. p. 313.)

However, rudeness or the contrary cannot have any thing to do with the theory, which rests upon labour only, not on skill.

53 Comm. III. p. 388.

54 There are in some parts of the country large grass plains, as to which it is doubtful whether they ever were covered with wood. These have been already, to a great extent, let to colonists as Cattle-runs; a regular money payment being made yearly to the owners.

55 Earl Grey's Despatch, 29th. Decr, 1846.

Practical Considerations.

Practical Considerations.

1. The comparative populousness of New Zealand and of North America, in respect of the native races inhabiting those countries, will appear from the following statement.

Bancroft says,

"Very great uncertainty must indeed attend any estimate of the original number of Indians, east of the Mississipi and south of the St. Lawrence and the chain of lakes. The diminution of their population is far less than is usually supposed: they have been exiled, but not exterminated. – We shall approach, and perhaps exceed, a just estimate of their numbers two hundred years ago, if to the various tribes of the Algonquin race we allow about ninety thousand; of the etc. etc in all, it may be not far from one hundred and eighty thousand souls." 56

The area of this tract, "East of the Missisipi, and South of the St. Lawrence and the lakes," is about 824,000 square miles. This gives 4 1/2 sq. miles for each person. Now the surface of the New Zealand Islands is about 121,000 sq. miles: out of which, about 54,000 belong to the Northern

Island. This gives, for the whole country together, about 1 1/2 sq. mile for each person: and, for the Northern Island taken separately, about seven tenths of a sq. mile for each person.

Therefore, comparing New Zealand with North America generally, the population of New Zealand is, for any given surface, three times as great as that of North America.

Confining the comparison to this Island, – the population of the Northern Island is, for any given surface, more than six times as great as that of North America.

Again Bancroft says

"On the discovery of America, the number of the scattered tenants of the territory which now forms the States of Ohio and Michigan, of Indiana and Illinois, and Kentucky, could hardly have exceeded eighteen tliousand." 57

The five States mentioned by Bancroft contain 228,650 sq. miles. This gives 12 2/3 sq. miles for each person.

Therefore, comparing New Zealand with these five States, the population of New Zealand is, for a given surface, more than eight times as great as that of those five States.

Confining the comparison to this Island, – the population of the Northern Island is, for a given surface, eighteen times as great as that of the five States.

The ratio would be still higher, in every case, if a deduction were made (as in fairness it ought to be) for the large extent of mountainous and desolate country, utterly unavailable for man's use, in the centre of the Northern, and in the Western parts of the Southern, Island. No tract of like nature exists in that part of N. America, to which the comparison here instituted applies,

Yet of this thinly scattered Indian population the territorial rights have been recognized and respected (as has been already shown) by our forefathers, and by the United States.

2. So far as yet appears, the whole surface of these Islands or as much of it as is of any value to man, has been appropriated by the natives, and (with the exception of the parts which they have sold) is held by them as property.

The Commissioners, who were appointed to investigate Land Claims, travelled, in the course of their inquiries, from the North to the South of these Islands, holding Courts from place to place. The Claims, examined by them, extended from the North Cape to Foveaux Straits. No where was any piece of land discovered or heard of, which was not owned, according to native usage, by some person or set of persons. There might be several conflicting claimants of the same land; but, however the natives might be divided amongst themselves as to the validity of any one of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants.

In this Northern Island at least, it may now be regarded as absolutely certain, that (with the exception of lands already purchased from the natives) there is not an acre of land available for purposes of Colonization, but has an owner amongst the natives according to their own customs.

The natives are scattered over the face of the country, in parties varying in numbers from a few persons to several hundreds.

In this Island a journey of a thousnd miles may be taken, (from Auckland to Wellington, and back again by a different route, so as to visit the lake district and Taupo,) travelling at

the average rate of 20 miles a day, without sleeping more than one night at an uninhabited spot: and, in such a journey, the traveller will often in the course of one day pass several villages.

In the Southern Island also the natives are greatly scattered. The population has been reduced, partly by disease and partly by invasion and exterminating wars. Yet the relics of a tribe retain the claims of their fathers. Much the same state of things occurs there, as the United States found in Illinois.

See Treaty with Kaskaskias Indians, August, 1803. [Indian Treaties, p. 100.]

"Art. 1. Whereas, from a variety of unfortunate circumstances, the several tribes of Illinois Indians are reduced to a very small number, the remains of which have been long consolidated and known by the name of the Kaskaskia tribe, and finding themselves unable to occupy the extensive tract of country which of right belongs to them, and which was possessed by their ancestors for many generations, the chiefs and warriors of the said tribe – -for the considerations hereinafter mentioned – relinquish and cede to the United States, all the lands in the Illinois territory which etc."

For the most part, the boundaries of property are well defined.

In the immediate neighbourhood of such Pas as are at present inhabited, land is often minutely subdivided; each separate piece belonging to some one person, who cultivates either alone or jointly with some members of his family.

The same is the case in the neighbourhood of old Pas, even though they may have been abandoned for many years. The titles of the former cultivators are remembered, and maintained, by their descendants.

When the acts of appropriation, in some past generation, were of a less public nature, or took place a long time ago, the titles of the present claimants are of course much more difficult of proof. Out of cases of this kind, the greater part of the existing disputes have arisen.

Each of the claimants endeavours to prove some act of ownership, exercised without opposition by one of his ancestors. Acts commonly alleged are: – cultivating – building a house or catching rats on the land – setting an eel-wear – cutting down a Totara tree in the forest for a canoe, etc

These claims in the ordinary course of things, become sufficiently complicated; but are rendered much more so by the introduction of another set of claims, which arise out of rights of conquest, enforced in very different degrees in different cases. Boundaries between different pieces of property, have been often indicated by the natives incidentally, without any question put or any previous reference to the subject, in spots now remote from any habitation of man: for example,

On the edge of the forest between the Whanganui river and Tongariro;
On the highest peak of the Aroha;
At a stream in the heart of the wood between Tauranga and Rotorua.

But, between territories of different tribes, there are often found tracts of land which are called "kainga tautohe" or (literally) "debateable lands."

The lands of a tribe do not form one unbroken district, over which all members of the tribe may wander. On the contrary, they are divided into a number of districts, appertaining to the several sub-tribes. Each sub-tribe consists of the descendants of a common ancestor, (whose name it generally

bears,) who was, in former time, the conqueror, or in any other way the recognized owner, of the district. These smaller districts are, in many cases, numerous; and for the most part they are sufficiently well defined.

Within each of them, the families or members of the sub-tribe are free to range, both to take the natural products of the soil, and to cultivate for themselves such portion of it as they may choose. There is no paramount or controlling power, either in the tribe or in the sub-tribe, to restrain or to direct the exercise of this right of appropriation. Each family or freeman may use and appropriate, without leave of any. It is indeed a rude form of property, – a natural stage in the progress toward the more complete appropriation of the earth's surface in the way familiar to ourselves. But, still, every right which exists, whether in one person or in more, is truly a right of property; and there does not, in this state of things, exist any thing which can be correctly likened to a right of Sovereignty, as understood amongst us.

Mr. Spain says, in describing the Port Nicholson district, "There are seven divisions or families of a tribe, each claiming separate lands of their own, and certain rights and privileges, which are sometimes wholly denied and at others only partially admitted by the rest." 58

And again, speaking of the same district, "In a place so thickly populated as I have before described this to be, the boundaries of the parts of the district belonging to each tribe or family are generally pretty well ascertained and admitted between them. As a proof of this, I may mention that, in the case of native reserves, great difficulty has been found in getting natives belonging to one family to go on a reserve made within the boundary of the land belonging to another

family; although it has been fully explained to them that the reserves are made for the benefit of the natives generally, and not for any particular tribe or family. They cannot understand this; and, in several instances that have fallen under my notice, they have positively refused to cultivate a native reserve so situated, although at the time in actual want of a spot to grow their potatoes upon." 59

3. The New Zealanders have been in the constant habit of resisting, even to blood, any encroachment npon their territorial rights. They are not less disposed to resist now.

For their determination on this point, there are two reasons:

1. That these rights (whatever names our lawyers may give them) are of great value to the natives, as has been shown above. They, like other men, are naturally disposed to retain by force (if necessary) that which they know to be a benefit to themselves;

2. That every tribe sees, in any successful encroachment upon its territory, a peril to its own independence and even to its existence as a distinct tribe. An extreme jealousy on this point appears to be the natural result of their condition, and may with, truth be described as the "passion" of this people. This has been a main cause of desolating wars. There is a common proverb, "he wahine, he oneone, i ngaro ai te tangata:" ["woman and land are the destroyers of man."] The pride of each tribe centers in its power to maintain its own possessions against aggression.

This spirit in the native people is closely akin to one which, if we were speaking of ourselves, we should describe as patriotism.

In the year 1845, a dispute between two tribes touching a piece of what would be called 'waste land,' at 'Te ihu taroa' on the Waikato, led to a conflict in which 23 men were killed.

4. Yet the natives have always been and still are, not only willing, but eager to sell their land to the English.

Captain Hobson, shortly after his arrival in the Colony, reported to the Marquess of Normanby, "This mania for land-jobbing is by no means confined to Europeans; but has extended to the natives, who have proved quite as ready to sell their lands as the Europeans were to buy. 60

By a Return laid before the Legislative Council, 14th. of October, 1846, it appears that the number of acres of land granted to the original land-claimants, out of lands validly purchased by them from the natives, was

in 1842 - - - 10,000
– 3 - - - - ,797
– 4 - - - - 193,354
– 5 - - - - 26,500
making a total of 230, 651 acres. 61

This total does not include, either lands reserved to the Crown under the Land Claims' Ordinance, or the lands transferred to the Crown by way of exchange, under the arrangement sanctioned by Lord Stanley in 1843.

That system of exchange was in operation in the Colony from Decr. 1843 to (at least) July 1845. It may therefore safely be presumed, that those claimants who chose to keep their claims, when they had an opportunity of exchanging them for lands purchased by the Crown itself, could entertain no doubt of obtaining quiet possession of the lands comprised in their claims.

By a similar return October 14th. 1846, it appears that the estimated number of acres of land purchased by the Crown from the natives in the Northern District, up to the end of 1844, was 284,939 acres. 62

These two items alone yield a quantity of land more than sufficient for the population of all the British Settlements together: and of this quantity (with very trifling exceptions) undisputed possession appears to have been obtained.

On the 26th. March 1844, Governor FitzRoy issued a proclamation notifying that he would consent to waive the Queen's right of pre-emption over limited portions of land, upon certain conditions. A fee of 10 shillings was required to be paid to the Colonial Government for every acre of land which should be purchased and granted in pursuance of that proclamation.

On the 10th of October following, by proclamation, the fee was reduced to the rate of one penny an acre.

So great was the eagerness of the natives to sell, that the Government, which had given this liberty of sale, in October 1844, found it necessary, in January 1845, to chide the natives for availing themselves of it too freely, by coming to Auckland in great numbers to hawk their lands for sale up and down the streets. [Native Gazette, January 1845. Kua kite matou i te tini o koutou e haereere ana, e tohe ana ki nga Pakeha kia hokona o koutou whenua, a he maha etc.]

It appears that under the latter of Governor FitzRoy's proclamations, and between 14th. October 1844, and 17th. November 1845, (both included) the Crown's right of preemption was waived over 90,016 Acres, together with two Islands of which the area is not stated. 63

The readiness of the natives, generally, to sell their lands – and even to do so at the sacrifice of their own permanent interests – is assumed as a known fact in the judgment of Mr. Justice Chapman in Queen against Symonds above cited. 64

"The legal doctrine as to the exclusive right of the Crown to extinguish the native title, though it operates only as a restraint upon the purchasing capacity of the Queen's European subjects, leaving natives to deal amongst themselves as freely as before the commencement of our intercouse with them, is no doubt incompatible with that full and absolute dominion over the lands which they occupy, which we call an estate in fee. But this necessarily arises out of our peculiar relations with the native race, and out of our obvious duty of protecting them, to as great an extent as possible, from the evil consequences of the intercourse to which we have introduced them or have imposed npon them, To let in all purchasers, and to protect and enforce every private purchase, would be virtually to confiscate the lands of the natives in a very short time. The rule laid down is, under the actual circumstances, the only one calculated to give equal security to both races. Although it may be apparently against what are called abstract or speculative rights, yet it is founded on the largest humanity; nor is it really against speculative rights in a greater degree than the rule of English law, which avoids a conveyance to an alien. In this colony, perhaps, a few better instructed natives might be found, who have reduced land to individual possession and are quite capable of protecting their own true interests; but the great mass qf the natives would, if sales were declared open to them, become the victims of an apparently equitable rule. So true is it, "that it is possible to oppress and destroy under a show of justice."

The following letter of the Commissioners of Land Claims [Colonel Godfrey and Major Richmond,] states the result of a very extensive experience in reference to this subject.

Auckland, May 4th. 1843.

Sir,

In reply to the memorandum of his Excellency the Officer administering the Government, addressed to us this day, demanding,

"If the conduct of natives, in the investigation of land claims, has caused a great alienation of feeling between the parties, and a disposition in some cases has been manifested to get returned to them lands which they formerly sold:"

We have the honour to report, that we have now examined more than half of all the claims, yet have never remarked such a consequence in any of our investigations.

In cases wherein the boundaries have been loosely described in English, nay, frequently confessed to have been inserted by the purchasers after the signature of the deeds by the natives; then indeed, the natives, although admitting a sale of some portion, have boldly, and in every instance, with apparent truth, denied the extent of land alleged to have been alienated; upon these occasions they have declared, that although they do not and never did understand the boundaries there read to them from the deeds, they can however, and willingly will, point out to the surveyors the lands they actually sold.

We have examined some natives more than ordinarily dissipated, and corrupted by habits of intoxication; still even these never made any unjust attempt to repossess themselves of their lands; witness the examination of Pomare upon the sale

of Russell, which took place upwards of a year after its purchase from Mr. Clendon by the Government, and was well known by Pomare to have then become of a vastly increased value.

We do, however, believe, that pretty generally the natives have required some presents to induce them to undergo our examinations; and that, in a very few instances, where they had been seduced by the temptations offered to them by Europeans to sell the same land to two different parties, they would perhaps give their evidence in favour of the greatest bribe, although offered to them by the later purchaser; but such cases have been most rare, and only occurred when the morality of the buyers appeared quite as questionable as that of the sellers.

Except on such an occasion, we can scarcely recall to mind a single investigation in which the testimony given to us by the natives was not deserving of the most entire credibility.

We have &c.
(Signed) Edward L. Godfrey. M. Richmond. Commissioners

The Hon. the Colonial Secretary. 65

5. What has been asserted of the willingness of the natives to sell, and of the facility of obtaining quiet possession of the land sold, is not disproved by the state of the Company's Settlements.

There also the same willingness existed at first. It even continued after much dispute had arisen, and after direct aggression had taken place.

Mr. Commissioner Spain says,

"Now here is a case (with the natives' feeling as I have

described it to be, rather to press for payment for their land than to retain it or force the Europeans from those parts of which they are in possession,) that might easily be settled by carrying out the compensation system." 66

Amongst the causes of the New Zealand Company's want of success are, in the first place, their undue haste in the negotiating of purchases, and the incompetency of the interpreters employed for that purpose.

In New Zealand the claims to land are numerous – the claimants often live far apart from each other – and the people are especially slow and deliberative in settling the terms of a bargain. To make a good bargain there are needed, length of time – publicity – and knowledge of the native language. When these requisites are found, purchases of land in New Zealand may be, and, in a large number of cases, have been, made as safely at least as in England.

Colonel Wakefield, writing to the Secretary of the Company, says:

"The Court is not ignorant of the duties which devolved upon me in the early days of the Company's existence; of the necessity of acquiring a territory on which to locate the emigrants destined to follow me from England with so little delay, without the sanction, if not in direct opposition to the wishes of the Government; of the difficulty of obtaining in a limited period a clear and indefeasible title to sufficient land to enable the Company to meet its engagements in a country where such confusion as to proprietorship existed as I found here." 67

Mr. Commissioner Spain says,

"It appears to me, as far as the evidence has gone, that all the Company's purchases were made in a very loose and care-

less manner; that the object of the Company's agents, after going through a certain form of purchase, seems to have been, to procure the insertion in their deeds of an immense extent of territory, the descriptions of which were framed from maps and by obtaining the names of ranges of mountains, headlands, and rivers, and were not taken from the native vendors; and that such descriptions were generally written in the deeds before the bargain for the purchases was concluded: that these parcels contained millions of acres, and in some instances degrees of latitude and longitude: that the agents of the Company were satisfied with putting such descriptions in their deeds, without taking the trouble to inquire, either at the time of or subsequently, to the purchase, whether the thousands of aboriginal inhabitants, occupying the surface of these vast tracts.of country, had been consenting parties to the sale."

"I am further of opinion, that the natives did not consent to alienate their pas, cultivations, and burying grounds: that the interpretation between the aborigines and the agents of the Company in the alleged purchases was exceedingly imperfect, and tended to convey, in but a very slight degree, any idea to the former of the extent of territory which the latter, by those purchases, pretended to have acquired: and that the explanation by the interpreters of the system of reserves was perfectly unintelligible to the natives."

"A comparison of the native evidence given in the Company's cases, with that given in most of the cases of private claimants which I have investigated, will show a marked difference. In the former, with few exceptions, it goes to deny, or only partially to admit, the sales: while, in the latter, it tends generally to admit the sale and the receipt ef the consideration, and usually to describe clearly the boundaries of the land sold." 68

It will be observed, that Mr. Spain's concluding statement is in accordance with that made by the other Commissioners in their above cited letter of May 4th. 1843.

"I have shown," says Mr. Spain, "that many tracts of these vast territories are now in the peaceable and unquestioned possession, in the strictest meaning of the term, of large bodies of natives, who may be divided into three classes: those who seized on and had retained possession of portions of the conquered territory; those who have returned from captivity, and now from long sufferance are fairly repossessed of their lands; and those who, as was the case at Whanganui, having escaped to the mountain fastnesses in the interior on the approach of the invaders, returned on their departure, and have ever since retained unmolested occupation of their ancient possessions: and finally, personal investigation has convinced me that these resident natives had never been in the remotest degree parties to, – many of them never heard of, – the transaction by which the land they dwelt on, the soil they tilled, was sought to be disposed of to another, by the pretended possessor of some imaginary rights of territorial sovereignty. 69

The extent and purpose of the 'native reserves' were not properly explained to the native sellers.

Barrett, the interpreter in the transaction at Port Nicholson, is asked, "Did you tell the natives, who signed the deed, that one tenth of the land should be reserved for the use of themselves and their families, or simply that the Europeans should have one portion of the land and the natives the other portion? He answers as follows: No; I did not tell them that they would get one tenth; I said, they were to get a

certain portion of land, without describing what that portion was." 70

Again, as to the transaction at Whanganui, the same witness says, "What I stated to them was, that there was one part for the white people, and one for them: I did not say the proportion." And being requested to state (as nearly as he could recollect,) the very words which he used, he gave the following; 71

"I say to you all, – when the white people come, they will put a part for you to cultivate with the white people." "I say to you all, natives, when the white people arrive here, they will lay apart one side as a seat for you: the land is large enough to grow food for you all."

A further cause of the failure of the Company's operations was, the badness and insufficiency of such reserves as were made.

"In a Report recently submitted to Government on the native reserves, by the Government Surveyor, he says, 'That of the 4300 acres reserved for the natives in the district of Port Nicholson, only 1550 acres can be considered at all available for cultivation.' We believe that the Surveyor appointed by the Company to go over this estimate, reported that 1700 or 1800 acres were fit for native cultivation." [Letter to the Directors of the New Zealand Company, from the resident Land Purchasers. Wellington, 1846. p. 26.]

A further, and a most material, cause, was the seizure, or attempted seizure, of lands without the consent of the owners.

"I speak," says Mr. Commissioner Spain, "of the natives of Te Aro or Taranaki, and Pipitea. The evidence goes to deny their consent to the sale in any way, or their participa-

tion in the proffered payment; while Barrett has distinctly stated that he told Colonel Wakefield that the natives of Te Aro and Pipitea were not so willing to sell their land as the natives were at Petoni; and he also states in his evidence, "I know that there were some part of the natives not inclined to sell their land, namely, the natives belonging to Te Aro and Pipitea;" and when he went to visit those living at Te Aro, they told him, "that they had not had any payment for the land, and that Wharepouri and the other natives had no business to sell their land."

"On a subsequent visit, accompanied by Colonel Wakefield and Dr. Evans, the natives of the same pa told him, 'that they had never recived any payment for their land;' and afterwards, when blankets were offered in payment for their land, they declined to accept them." 72

Yet lands of these people form part of the site of the town of Wellington, and were sold, as such, by the Company, in London. 73 And in August 1840, an attempt was made to get possession of part of those lands by force, but without success. 74

In like manner at the Wairau, "The survey" says Mr. Spain, "was commenced only two months before the affray took place; the agent to the Company being well aware that the natives had always disputed the sale of the district." 75 Yet the Commissoner found, when the time for inquiry came, not only "the positive denial by Rauperaha and Rangihaeata of the sale," but also "the absence of any proof by Colonel Wakefield of its purchase." 76

"Owing to the small surveying-staff (consisting of a principal surveyor and three assistants,) originally sent out by the

Company, followed, as it immediately was by the Settlers, there were neither the means nor time for exploring the country. Land was taken and surveyed wherever it could most easily be found, without any reference to its quality, accessibility, or proximity to the town, and without any regard being had to the numbers and feelings of the native population." [Letter to the Directors etc. Wellington, 1846. p. 27.]

6. In the course of British Colonization, fair purchase has almost invariably been followed by quiet possession, but aggression and invasion have always led to the contrary result.

The secret of successful and undisturbed colonization is indicated by Mr. Chancellor Kent, in the following passage.

"The Minesink valley on the Delaware, was settled by Dutch emigrants as early as 1644; and, being an industrious, quiet and pious people, and having purchased the lands from the Indians, they lived in uninterrupted peace and friendship with them for upwards of 100 years." 77

"The massacre of the whites in Virginia, is asserted by Governor Winthrop (who wrote from contemporary information which came from the Indians,) to have been 'because the Indians saw the English took up all their lands, and would drive them out of the country.'" 78 Precisely where, as we have already seen, "the cases of unauthorized intrusion upon Indian lands happened," there also happened the only massacre we read of in the history of our early colonization of America. 79

Bancroft says, "From the first landing of Colonists in Virginia, the power of the natives was despised." 80 – "The plantations of the English were widely extended, in unsuspecting confidence, along the James River and towards the Potomac,

wherever the rich grounds invited to the culture of tobacco." – "Should the native occupants of the soil consent to be driven from their ancient patrimony? Should their feebleness submit patiently to contempt, injury, and the loss of their lands? The desire of self-preservation, the necessity of self-defence, seemed to demand an active resistance; to preserve their dwelling-places, the English must be exterminated; in open battle the Indians would be powerless; conscious of their weakness, they could not hope to accomplish their end except by a preconcerted surprise. The crime was one of savage ferocity; but it was suggested by their situation." 81

The feebleness of the Indians of Virginia is strikingly shown by the following statement:

"Smith once met a party that seemed to amount to seven hundred; and so complete was the superiority conferred by firearms, that with fifteen men he was able to withstand them all." 82

Again, of the same tribes, Bancroft says, "So weak were the natives, that, though the careless traveller and the straggling huntsman were long in danger of being intercepted, yet ten men mere considered a sufficient force to protect a place of danger." 83

The weakness of the Indians induced them to have recourse to treachery, to defend themselves against aggression; the strength of the New Zealanders prompts them, in the like case, to an open and resolute resistance.

"It appeared" says Mr. Spain, "that the Officers of the Company, who had arrived in the first expedition, had fixed upon Petoni as the site of the Town, where the early settlers landed and commenced erecting their houses. This part be-

longed to E Puni and his tribe, by whom the sale to the Company had always been admitted, and consequently the settlers experienced no opposition from them. After the arrival of another vessel from England with settlers, it was, after considerable discussion, ultimately determined to change the site of the town from Petoni to Lambton Harbour, which was accordingly done. The new site was upon land belonging to the natives of Tiakiwai, Pipitea, Kumutoto, and Te Aro, who, having always denied the sale, offered every opposition to the settlers, and have firmly retained possession of their pas from that time to the present." 84

"Porirua and Wairau – in both instances the opposition to the surveys and occupation has been, from the first, systematic and determined." 85

So far as the N. Z. Company's dealings with the natives were what they professed to be, namely, good and complete purchases, the natives have acquiesced and all has gone on quietly. In so far as those dealings partook of a different character, the contrary has been the result. 86

7. The cost of obtaining land in New Zealand, by purchase from the natives, will appear from the following facts.

The number of acres bought by the Crown up to the end of 1844 was 284,939. The consideration paid for the same was £5285. 87

Thus the average number of acres obtained for every £1 of purchase money was between 53 and 54: making the average price of an acre about 4 1/2d.

Much of this land was purchased after its value had been raised by the establishment of the Town of Auckland.

It may be safely assumed that the average price of land purchased from the natives will not exceed 3d. an acre.

Recent transactions in New Zealand will have furnished to the Government at Home some means of estimating the probable cost of attempting to get possession of land in New Zealand otherwise than by fair purchase. That cost may be better calculated in England than here.

Besides, all such attempts must involve other losses more serious by far and deplorable than any outlay, however vast, of mere money.

8. The suspicions which have been entertained by the natives as to our policy and designs, with regard to their lands, have, from the beginning, formed one of the main difficulties in the Colonization of New Zealand.

Partly from hearsay, partly from actual observation, the natives have become well acquainted with our doings in Australia. Suspicions, necessarily flowing from that knowledge, were (as we have seen) avowed, and strongly urged at Waitangi.

Major Bunbury found them equally prevalent even in the Southern Island.

"We arrived at Cloudy Bay; – -Mr. Williams, Captain Stuart and myself landing the same evening at Gore's Cove, where we found several European residents, and the brother of the Chief of Kapiti Island (Rauparaha) with two or three chiefs of inferior note, his nephews; the whole of these refused to sign the Treaty, under the impression that, if they did so, their lands would be taken from them; in other respects

they received us civilly; the old man, the brother of Rauparaha, promised however to come off the following morning to the ship. – On the morrow following our arrival, we were invited by some chiefs from other coves adjoining that which we had visited the preceding evening: these did not hesitate to sign the treaty, when it was explained to them: a young chief, of the name of Mauipu we found particularly intelligent; he spoke a little English, and told me he had been at Hobart Town, and on board H. M. S. "Conway." – When told, after he had read the treaty, of the difficulty we had experienced at the neighbouring cove, he said, that tribe was not singular, and that most of the natives imagined that we asked them to sign in order that the Queen might afterwards take their lands from them. Both Mr. Williams and Captain Stuart were surprised at the very clear manner in which he explained to another chief the nature of the second article of the treaty, which relates to the land and property of the natives; and, as he offered to return on shore to them, we accompanied him. The old chief, named Nohorua, (brother to Rauparaha,) on condition that his signature was witnessed by his English son-in-law Thomes, agreed to sign, in order that, (as he said,) should his grandchildren lose their land, their father might share the blame; the others, his three nephews, said they would see us on board. – To show how much these people have been harassed about their lands, and how jealous they are in preserving this species of property, – they all objected to receive presents after signing, lest by some quibble I might construe it as a payment for its surrender, until they were again assured to the contrary." 88

These natural apprehensions slumbered for a season after the commencement of the Colonization of the Country.

They were waked up again, in the north, mainly by certain effects of British Sovereignty which the natives had not foreseen in the South, mainly, by the proceedings of the New Zealand Company.

Governor Grey arrived in New Zealand in November, 1845. Shortly after his arrival he wrote to Lord Stanley from Auckland, November 23st. 1845, as follows:

"Terms of peace having been proposed, (previous to my arrival,) to the rebel chiefs, which were made conditional upon their surrendering certain tracts of land, I found that an impression was still prevalent that the Government desired to get possession of their lands from the natives; and even some of those chiefs who have hitherto been in alliance with the Government, were so apprehensive on this point, that they would not rest satisfied, until they had an opportunity of personally conversing with me, and thus assuring themselves of my future intentions with regard to them. This interview has just been concluded; and I explained to them that Her Majesty was aware of the various difficulties which now existed in New Zealand, and that I had been sent here for the express purpose of inquiring into, and adjusting these difficulties; and that, until I had had an opportunity of making the necessary inquiries, and of satisfying myself which were the best means of removing the present evils, I could give them no information upon the line of policy I might think it proper to adopt; that, in the mean time, they might rest assured that the Queen's only object was to promote their welfare; that the British Government did not entertain the idea of depriving them of their lands; and that under no circumstances would the services of those chiefs, who had so actively and energetically assisted the Government, be overlooked. They expressed themselves perfectly satisfied with these assurances

on my part; but added, that they feared that I should find that the evils, which disturbed the country, were much greater than I had been led to suppose; and that they were much pleased to hear that I was about to inquire for myself, and to obtain information upon the state of affairs here. They concluded by stating, that the assurances they had received were so satisfactory that I might rely on their affording every assistance in carrying out my views. Their whole demeanor satisfied me that every suspicion was removed from their minds." 89

In a despatch of November 22nd. 1845, Governor Grey says, 90

"The only means by which I can hope to secure the allegiance of the chiefs, who have naturally no abstract sentiments of loyalty, is to attach them to the Crown by permanent benefits, which may convince them that Her Majesty's intentions to them are benevolent in the highest degree, and that the Queen entertains no idea of despoiling them of their property."

Governor Grey proceeded immediately to the Bay of Islands, from which place he wrote further, on the 24th. November;

"I find that great distrust regarding the intentions of the British Government, upon the subject of claiming all lands of the natives not actually in occupation and cultivation, exists among many of the most influential and hitherto friendly chiefs in this quarter. They are tolerably well acquainted with the details of the discussion which took place in the house of Commons at the end of June last, regarding the state of New Zealand, and their apprehensions are avowedly based upon what transpired during the debate to which I am alluding." 91

In consequence, Governor Grey gave to the natives the assurances mentioned above, which, he was satisfied, "produced

a very favourable impression upon many of the most influential of the Chiefs." 92

As to the South, Mr. Commissioner Spain says, in September 1843, of the conflict at Wairau:

"This fatal business put an end to all confidence on the part of the natives in the Europeans, and they came to the conclusion that the British Government had suddenly altered its policy towards them, and intended to take away from them all their land by force." 93

Again, in March 1845, Mr. Spain says, "It was my painful duty to act as a Magistrate during the proceedings immediately consequent on the melancholy catastrophe at Wairau; which has done so much towards the estrangement of the two races, and from which may be dated the existence in the native mind of a feeling of jealousy and animosity towards the European stranger, but little calculated to strengthen the bonds of friendly intercourse betwixt us or to promote the advancement of civilization." 94

In this way, from time to time, the old suspicions have revived and gathered strength. It has been conceived by some of the natives that the Missionaries have been, from the beginning, parties to a plot, jointly with the Government, for seizing the native lands; and that they were employed to prepare the way for the execution of that purpose.

This supposition or suggestion has naturally found favour with, some of the leading heathen chiefs. It has often been avowed.

So high has the feeling risen at times that, in one part of the country at least, it was made a subject of serious discussion whether it was not necessary to combine for the purpose

of driving the English wholly out of the Country. Nor has this notion been made a secret: it has been openly mentioned.

Still confidence has on the whole prevailed: because no act of aggression has been committed by the Queen's Government. Acts of injustice committed by others have only accustomed the natives to appeal for redress to the Queen: and have ended in strengthing their confidence, that the Queen would always cause justice to be done.

So long as the British Power presents itself to a native tribe as friendly and just, every tribe is anxious, and is induced by the strongest motives, to make that Power its ally and protector.

The importance of maintaining in the minds of the natives a favourable disposition towards the English authority, may be seen from the following remarks of Governor Grey, in a Despatch dated 11th. December, 1845;

"The friendly chiefs will now be able to bring into the field a much larger number of men than they have previously done; – I ought also, perhaps, to state to your Lordship, that in many operations in the field, such as occupying a wood, lining the banks of a river, etc., these native troops afford the most essential assistance to Her Majesty's forces; indeed I do not think that our operations could be successfully conducted without their co-operation." 95

If then, in warring against a small part of the native people, our success has been so dependent on the co-operation of native allies; what result can we expect when, by our unjust policy, we shall have united against us the entire native population?

The conduct of the British Government in this country has

hitherto been such as to produce amongst the natives generally a considerable degree of reliance on British justice, and to remove, or greatly diminish their natural and reasonable apprehensions.

In particular, those who have received Christianity are disposed to look up to us for guidance and government.

But, let the plan of confiscation or seizure be once acted on and all this will be at an end. The worst surmises of the natives will have become realities. To them we shall appear to be a nation of liars.

All our means of exercising a moral influence over this people will have ceased, together with all the hopes, (which we have nationally professed to hold most dear) of success in the work of civilizing and Christianizing them.

The Christian faith itself has, from the necessity of the case, been received mainly upon our credit; that is, in the belief that the Pakeha who proclaimed it, was a true man, honestly seeking to benefit, in every way, those whom he instructed. [If] Our dishonesty shall be seen, if [delete] the Christian religion will be abandoned by the mass of those who now receive it. That such will, in that case, be the result, may be shown,) as far as any result yet contingent can be foreshown at all, from the language and conduct of the natives since the contents of Earl Grey's Despatch became known:

This consideration can scarcely be deemed a slight matter, in the judgment of any Englishman: certainly it cannot appear so, in the judgment of any Christian man.

[Page 72 is blank]

56 Hist, of U. S. Vol. III. p. 253.

57 Ibid. p. 241.

58 General Report, p. 306.

59 Reports, April 8th. 1846. p. 7.

60 Parl. Pap. May 1841, p. 12.

61 Government Gazette, 1846. Appx. E.

62 Ibid. Appx. C.

63 Government Gazette, June 16, 1846.

64 Government Gazette, July 6, 1847.

65 Parl. Pap. July 1844. Appx. p. 334.

66 General Report, p. 306.

67 Report of N.Z.C., Appx. 62 E.

68 General Report, p. 305.

69 Reports, April 8th. 1846. p. 40.

70 Ibid, p, 8.

71 Ibid. p. 74.

72 Reports, p. 5.

73 General Report, p.296.

74 Parl. Pap. May, 11th. 1841.

75 General Report, p. 301.

76 Reports, April, 8th. 1846. p. 41.

77 Commentaries III. p. 392.(n)

78 Ibid. p. 398.(n)

79 Ibid. p. 396.

80 Vol. I. p. 180.

81 Ibid. p. 181.

82 Ibid. p. 180.

83 Ibid, p 208.

84 General Report, p. 295.

85 Reports, April, 8th. 1846.

86 It should be stated that Mr. Spain's Report here cited, has been twice confirmed; first, by Governor FitzRoy; secondly, by Governor Grey. Both Porirua and Wairau have been subsequently purchased by Governor Grey.

87 Government Gazette, 25th..Nov. 1846. Appx. C.

88 Parl. Pap. 11th. May 1841, p. 108.

89 Parl. Pap. 1846. p. 2.

90 Ibid. p. 3.

91 Ibid. p. 16.

92 Ibid. p. 18.

93 General Report, p. 300.

94 Reports, p. 16.

95 Parl. Pap. 1845 – 6. p. 29.

Addenda.

Addenda.

1.

Extract from a letter, dated 22nd. October, 1847, from Mr. Hobbs, Wesleyan Missionary at Hokianga, to the Chief Justice of New Zealand.

"When Captain Hobson had obtained as many signatures as he could at Waitangi, he came overland to Hokianga for the same purpose. We were honoured by his Excellency's presence at our Mission Station, and I became his interpreter. Great excitement had for some time existed in consequence of the prevalence of reports, that the Queen had sent her officers to take this country as they had done New Holland, and that the chiefs would thereby lose both their dignity and their country.

"Captain Hobson's object was announced to a large meeting, composed of the principal natives and most of the Europeans resident in the District. Many speeches were made, and questions proposed by the natives, and I interpreted His Excellency's most solemn assurance that, if they signed the treaty, truth and justice would always characterize the proceedings of the Queen's Government. Considerable opposition was offered by several influential natives, lest the land should be taken from them, and repeated assurances were given by His Excellency that the Queen did not want the land, but merely

the sovereignty, that she, by her officers, might be able more effectually to govern her subjects who had already settled here, or might hereafter arrive, and punish those of them who might be guilty of crime. That, if the Queen wanted land, she would purchase it of them, and that it should never be forcibly taken from them. After many reiterations of such pledges as these, (for the negotiation was unremitted from breakfast time till nearly six in the evening) one of the principal Christian chiefs turned to me and my colleagues, and asked, "what is your opinion as to our signing the document? will it be for our good?" We replied that we thought it would."

2.

A Letter from Mr. Maunsell, of the Church Missionary Society, to Governor Grey.

Waikato Heads, October 18th. 1847.

Sir, – That a Clergyman should have but little to do with politics, is a remark of which I fully admit the propriety. Still, when principles opposed to religion or justice are advanced – or when there is growing through the community a dangerous feeling of which others cannot obtain as accurate knowledge, he would, I consider, be unfaithful to his country and cause, if he were to decline expressing his sentiments, or giving a warning. It is for these two reasons that I venture thus to trespass upon your attention.

Your Excellency is no doubt aware of the prominent part that the Missionary body took, on the arrival of Captain Hobson, in inducing the Aborigines to acknowledge the Sovereign power of the Queen. For those efforts we received public acknowledgements from Captain Hobson and his Officers.

Since then, it will, I trust be admitted that we have been the firm advocates of British rule, and the watchful promoters of peace. We have not, I trust, deserted the interests of our people, but in maintaining those interests, we have ever (and to a larger extent than is generally known), urged them to the duty of obedience.

The late Despatches, from Earl Grey, with the Instructions accompanying them, will, if acted upon, compel us, I fear, to assume, at least in appearance, a somewhat different position in future. Reports and surmises are now spreading through the country – Every visitor to Auckland brings back a confirmation, – and the question is then put to us, "is it true?"

To such a question, I find it difficult to answer. Silence is interpreted into assent. To answer in the negative I cannot. These Instructions and the Despatch are, we see, the carrying out of the resolutions and report presented by the Select Commitee of the House of Commons, July, 1844, (of which also, Earl Grey was I believe the chief author;) and they all indicate an uniform, preconcerted plan, a plan which, though rejected by the then Colonial Secretary, is now revived with authority, and furnished with machinery for being carried into operation;

In these documents we see indeed the maintenance of the Waitangi Treaty ostentatiously put forward; but we detect throughout the whole, what far counterbalances such averments. Not only do we miss the kind spirit of paternal interest that was evinced by the former Colonial Secretaries towards the aborigines; but we see also a strong inclination to censure that treaty; and, if not a plain repudiation, at least a plain attempt to evade its force.

This being the case, we find our position most perplexing. Our people have heard us repeatedly affirm the high honour and justice of our government, and the interest it has always taken in the protecting and fostering aboriginal races. They now ask us, – "Why is the Treaty of Waitangi thus virtually broken? why for the sake of a few useless spots, that could have been purchased for a comparative trifle, is a train laid for involving the whole country in a flame?"

If it were merely the honour and interest of the British government that were concerned in the question, we might fairly decline engaging in such discussions. But unfortunately we are too deeply involved to be allowed to be silent. "For you," say they, "urged us to acknowledge the sovereign power of the Queen. We did so on your assurances that our lands should not be touched. It appears now that the Queen is dissatisfied with that agreement, and is preparing to take our lands by force. Thus have we been deceived by you, into feeding the child, until he becomes a man, and strangles us."

This, Sir, is the only point in which I have been as yet accused, (and that by some of the leading men of the district,) with having betrayed their interests. – How to answer, I know not. It is not very gratifying to one's feelings to have to fasten a charge of breach of faith upon one's country – a country also confessedly the most noble spirited that has yet been recorded in the pages of history. Neither, on the other hand, would it appear wise to bear such assertions without offering an explanation. For we cannot but feel that our influence as religious teachers, as well as our very residence among them is most intimately connected with the confidence they repose in us as their friends and advisers.

The only course that some of our body have seen out of the difficulty is, to leave the country as soon as you begin to act upon those instructions; and others will, I hope, remain; but if they do remain, they will have no other alternative left than to set the whole matter fairly before their people; to shew that we never contemplated such measures on the part of our government, when we induced them to sign the treaty, and that though we were guilty of a mistake, we were not at least guilty of an attempt at deception.

I trust Sir, that I may never see the day in which Englishmen will forget that national honour is an essential part of national dignity. The greater the power, the more striking will be an act of meanness. From the day on which the Treaty of Waitangi was signed, the conduct of the New Zealanders toward the British has been marked by a spirit of chivalry, of friendship, and of good faith. They have cheerfully ceded the rights of sovereignty, and pre-emption; and for a very small compensation have willingly endured fatigue, and faced death against their own relatives, in defence of that authority thus ceded.

What, I would ask, has been given by the British Government to them in return? It surely cannot be considered an equivalent that a powerful nation, that has already subdued and destroyed so many aboriginal tribes, has settled on their shores. It has been by all parties admitted that this colony has not been founded by force, but by compact. A compact implies advantages given as well as received, What has been received by the British government is visible to all; what has been given to the New Zealander it is difficult to discover. Former Colonial Secretaries did indeed give something. They gave us approbatory sentences and kind recommendations. These were encouraging: we took the will for the deed, and

were thankful. Earl Grey seems only to regard this people as being not far from the lowest in the scale of human existence, and unworthy of the little they now retain.

His Lordship will, I hope, recollect that if the civilized man has claims, he has also duties; and that to those beneath us in the degree of advancement, we should shew our eminence, not merely in skill and power, but in the more exalted qualities of benevolence and truth.

The bill lately brought forward by your Excellency for the Education of the Aborigines, I regard as the only practical acknowledgement as yet made by the government, of the value of those influences, by means of which it has so peacefully established itself in this island. Whether that bill will be permanent and successful in its operation, experience alone can decide. Still, considering the opinion which is now taking hold of the native mind, that the English nation delights in usurpation and war, I cannot but hail such a measure as most beneficial. If it be effectual, it will be a boon to the country; and a boon that I am sure, you will regard as much an offering to justice, as to philanthropy.

It will perhaps be urged that the aborigines have received the privileges of British subjects. What those privileges are, I have yet to learn. They contribute upwards of £10,000 per annum to the revenue of the colony, while they have no one in the Legislative Council to represent their interest, or to raise his voice in their name against an act of injustice.

Controul over the sale of their lands they must, it seems, be considered to have entirely surrendered. The British government not only firmly grasps all thus ceded: but now demands more. Waste, Unclaimed, Unoccupied, are, in the vocabulary of Earl Grey, all one and the same in meaning. Those mystic words, Sovereignty and Pre-emption, are then

called into requisition; and made to serve the same purposes as did the ox hide in hands of a proto-colonist of former times. They are to be stretched into such convenient lengths, as to enclose just as much as the more powerful and more crafty are pleased to determine.

England has her unoccupied territories: and no doubt Earl Grey has his unsubdued lands ranged over by nothing else than the deer and the pheasant.

So has also the New Zealander his bird preserves, his 'runs' (the grand sources of supply to our colonial markets,) his useful timbers, his valuable plants, his fisheries, and localities sacred in his regards as having been the abode of his forefathers, the scenes of their triumphs, or the resting place of their bones.

Why then does the statesman of such a wealthy nation seek to confiscate these the guaranteed possessions of our friends and allies? Why does he not ponder before he advances arguments so palpably weak? before he proceeds to trample upon the acknowledged rights of a people that commands the admiration of our Captains, – of a people most deeply interesting to the thoughts of the philanthropist? – before he thus exposes to the contempt and ridicule of their own converts, his fellow subjects, who risked their lives in the benevolent mission of the grand Christian bodies of the mother country, who risked their influence and success in obtaining for their Sovereign the bloodless cession of the most promising Islands in these seas?

A reference to Captain Hobson's communications will show that I took a large share in these proceedings. I think, therefore, I have a right among others, to be heard in this announcement of these new measures. Captain Hobson recorded my letter to him of April 14th. 1840, in which I expressed

my sense of the responsibility I had incurred, and strong confidence in the honour of the British government, (which letter I take the liberty to forward for your inspection.) I trust I am not asking too much if I beg your Excellency to forward this my protest against those instructions and that despatch so that if my country will be unjust, I may at least enjoy the gratification of having made it known that it was not for such a purpose that I consented to become her instrument.

I remain, &c,
[Signed] R. Maunsell.
To His Excellency, Governor Grey,
&c, &c.

Extract from a letter to the Colonial Secretary. Referred to in the foregoing.)

April 14th. 1840.

"In forwarding the accompanying document, I would beg to observe, in reference to ourselves, that cordially as we desire to co-operate with Governor Hobson in all measures consistent with our principles, we cannot but state, that we feel strongly the responsibility incurred in the eyes of the natives, by the steps we are now adopting.

"I would beg therefore with all deference to add, that having put ourselves thus prominently forward in obtaining an acknowledgement of the Sovereign power of the Queen, on the part of the natives, so we trust, that that acknowledgement will never be made, even apparently, the basis of any measure that may hereafter result in their prejudice.

"The steps we have taken have been taken in full depen-

dence on the well known lenity and honour of the British government, and we rest assured, that we shall never hereafter find ourselves to have been in these particulars mistaken."

[Signed] R. Maunsell.

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