Memorial to His Grace, The Secretary of State for the Colonies...

Church Missionary Society

First published by Church Missionary Society in 1861

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

Epub © 2013 Early New Zealand Books Collection

ISBN 978-1-927288-38-2

[TITLE PAGES]

NEW ZEALAND.
MEMORIAL
TO HIS GRACE THE
SECRETARY OF STATE FOR THE COLONIES

TOGETHER WITH
A MEMORANDUM
NEW ZEALAND AFFAIRS.

LONDON:
CHURCH MISSIONARY HOUSE, SALISBURY SQUARE.
1861.

LONDON:
T. C.. JOHNS AND SON, PRINTERS,
ST. BRIDE'S. FLEET STREET.

[CONTENTS]

CONTENTS.

MEMORIAL.......v

MEMORANDUM.

INTRODUCTORY REMARKS......1

WIREMU KINGI'S TRIBAL RIGHT IN THE WAITARA A MATTER FOR JUDICIAL ENQUIRY.......2

(1.) The Tribal Right not Extinguished....4

(2.) Kingi's Personal Claim as Chief....10

TE TEIRA'S TITLE ALLEGED TO BE INCOMPLETE......14

THE PRECIPITATE DECLARATION OF WAR......18

APPENDIX.

THE TRIBAL RIGHT, AN INTEGRAL PART OF THE SYSTEM OF LAND TENURE IN NEW ZEALAND.....25

POLICY OF THE NEW ZEALAND GOVERNMENT DIRECTED TO THE MODIFICATION OF THE TRIBAL TENURE... 31

APPREHENSIONS OF A FORCIBLE INTERFERENCE WITH THE TRIBAL RIGHT........32

THE MAORI KING MOVEMENT AND THE QUEEN'S SUPREMACY.......36

GENEALOGIES OF KINGI AND TEIRA........37

RESOLUTIONS OF THE NATIVE CONFERENCE......38

KINGI'S PERSONAL SERVICES TO THE GOVERNMENT.....39

SOLE RESPONSIBILITY OF THE GOVERNOR IN NATIVE AFFAIRS......40

PROCLAMATION OF MARTIAL LAW.......ib.

SUBSEQUENT MEASURES OF THE COLONIAL GOVERNMENT.....41

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MEMORIAL OF THE CHURCH MISSIONARY SOCIETY

MEMORIAL of the Church Missionary Society to His Grace the Secretary of State for the Colonies on the present circumstances of New Zealand.

1. YOUR Memorialists beg to refer to the part which the Missionaries of this Society bore in the first attempts to civilise the Natives of New Zealand: – to the part which they bore in explaining to the Natives the provisions of the Treaty of Waitangi, both before and at the time of its being signed by the Chiefs: – as well as to the fact that the Missionaries have been led by force of circumstances, and in some instances at the request of the Governor of New Zealand, to take part in the discussion of the question now at issue between the Government and the Natives. These references will afford, your Memorialists are persuaded, a sufficient ground for addressing Her Majesty's Government on the present occasion.

2. YOUR Memorialists have felt it their duty

to investigate with the utmost care all the accounts which have been received from New Zealand through the public channels of information: and they have themselves received much additional information from the letters of the Bishops, Missionaries, and other Clergymen, several of whom are residing amongst the tribes now unhappily in conflict with the troops. Your Memorialists beg to refer to a Memorandum upon New Zealand Affairs which accompanies this Memorial. *

3. YOUR Memorialists are persuaded that they only express the sentiments of Her Majesty's Government in deprecating the notion that any just rights of the natives, which have been guaranteed to them by the Treaty of Waitangi, and by numerous subsequent official declarations, will be sacrificed on the ground of a superiority of race, or to satisfy the want of the settlers of enlarged cultivations.

4. YET your Memorialists are convinced that it is an apprehension of such an invasion of the natural and guaranteed rights of the natives, – more especially in respect of tribal rights, and of the claim of the chiefs to represent those tribal rights as well as the interests of orphans, minors, and absent members of their tribes, – which has led to the unhappy collision with the natives of Taranaki.

5. YOUR Memorialists deprecate the various statements which have been made by certain officers of Government, threatening the introduction of a "new system" in respect of native titles. But your Memorialists are happily relieved from the necessity of dwelling upon this point by a declaration of the Colonial Secretary to the Bishop of New Zealand so late as September 5th, 1860, to the effect "that the Government does recognise (to the fullest extent) all lawful rights of the chief and tribe which have been recognised by former Governments, or have ever been understood to exist" – which declaration the Bishop and the Clergy generally have accepted as a satisfactory disavowal of any "new policy" in respect of native titles.

First Suggestion

6. YOUR Memorialists, however, earnestly request Her Majesty's Government to make some authoritative declaration to the effect that the tribal rights, and the rights of the Chiefs in respect of land titles, will be recognized as heretofore: so as to allay the apprehension of all parties in New Zealand of any deviation from the policy which has been for twenty years regarded as established by the Treaty of Waitangi.

Second Suggestion

7. YOUR Memorialists are compelled further to express their deep regret, that under all the cir-

cumstances of the disputed claims at Waitara, Martial Law should have been precipitately, as they apprehend, proclaimed, and proclaimed also under the equivocal expression in the Maori language of "Fighting Law," against all the tribes of Taranaki. Your Memorialists would, therefore, most respectfully urge, in the second place, that Her Majesty's Government should take some method of explaining to the natives that such proclamation of "Fighting Law" did not, and does not yet preclude the peaceable solution of the questions at issue.

8. YOUR Memorialists beg, also, to represent the importance of immediate measures for securing an adequate adjudication of the disputed claims of Wiremu Kingi, and of the other claimants who have objected to Te Teira's right of sale: so as to remove the immediate cause of strife, apart from the general settlement of the question of Native Titles, which may require much time and lengthened discussions before it can be brought to a conclusion.

9. YOUR Memorialists would venture to remind Her Majesty's Government that a Bill, the provisions of which would have facilitated the settlement of Native Titles, was in preparation at the very time of the outbreak at Taranaki, and that if such a law

had been previously in operation in New Zealand, the adjudication of Kingi's claims would have been conducted by a very different process from that which occasioned a disastrous collision with the Natives. Your Memorialists also refer to a recent declaration of Mr. Richmond, the Colonial Secretary for Native Affairs (Memorandum, May, 1800), that the Colonial Government are anxious for some competent mode of adjudication upon Native Titles.

Third Suggestion

10. YOUR Memorialists therefore venture to suggest as a third measure, imperatively called for, the adoption by the Home Government of some mode of adjudication upon the particular case of the land at Waitara.

11. YOUR Memorialists are fully aware of the complications caused by the Land League and by the "Maori King" movement in New Zealand, but they believe that these combinations have received their most fearful aspect from the events at Taranaki, and that they would lose their chief strength if that affair were peaceably settled, and the Government policy on land-titles were distinctly avowed.

12. YOUR Memorialists confidently hope that the adoption of the measures they have now ventured to recommend would allay the apprehensions

of the Native race, and they think it probable that Wiremu Kingi himself, whom they regard as a Chief not insensible to generous and noble sentiments, might be won back to his ancient loyalty; and they feel assured that the effect of such measures, if emanating from the direct authority of the Queen, upon all other Natives, especially upon those not committed against the Government, would be most salutary, and so tend, under the Divine blessing, to stop the effusion of blood, and to avert the horrors of a war of races.

13. Your Memorialists have not presumed to urge the three suggestions now specified as the only measures which may be required, but only as those which peculiarly belong to their own province and to their relations with New Zealand, and which are in themselves peculiarly urgent: they also believe that these measures would satisfy the numerous Europeans in the Colony who are now advocating the just consideration of Native claims, including the Bishops and the late Chief Justice of New Zealand, and the great body of the Clergy, and many other disinterested parties; and that their powerful co-operation would be thus secured to Government in the adjustment of existing difficulties. At all events, as your Memorialists would most respectfully represent, such a manifestation of the Christian principles of conciliation on the part of Her Majesty's

Government, while putting forth the strong arm of power, will afford the best ground of hope for the blessing of Almighty God upon whatever measures may be subsequently adopted for the pacification of the interesting and important Colony of New Zealand.

CHICHESTER,
President.

CHURCH MISSIONARY HOUSE,
January 4th, 1861.

MEMORANDUM ON NEW ZEALAND AFFAIRS.

MEMORANDUM ON

NEW ZEALAND AFFAIRS.

THE prevalence in New Zealand, of a "tribal tenure" of land, in virtue of which "individual title does not exist, except in rare cases," has been affirmed by competent authority; it is secured to the natives by the treaty of Waitangi, under which the sovereignty of the Islands was ceded to Great Britain, and its nature and consequences are now generally understood in the colony and at home. 1 The system having in certain cases pressed heavily upon the settlers, the policy of the Colonial Government has been directed to the modification of it, with a view to the individualization of native titles; 2 while the more recent proceedings of the Government of New Zealand have raised serious apprehensions of a forcible interference with the tribal right: 3 for the Maories are a people peculiarly sensitive as to their landed possessions, and jealous of their nationality. The Maori King movement 4 again has greatly increased the difficulty of dealing with disputed land questions, from its tendency to embolden resistance on the part of the natives, and to embarrass the

authorities by the uncertainty created as to the true grounds of opposition, and as to how far the ramifications of it may extend. But the existing war has arisen, in the first instance, out of a disputed claim to land, and not out of the Maori King movement; in fact the leading man of the war party at Taranaki has steadily kept aloof from that movement, nor did the supporters of it, as such, come to his assistance when the war broke out, although solicited to do so by special deputation. It is not necessary to determine how far the two questions have since become entangled.

The present review of the subject embraces the following heads: –

I. WIREMU KINGI'S TRIBAL RIGHT IN THE WAITARA A MATTER FOR JUDICIAL INQUIRY.
II. TE TEIRA'S TITLE ALLEGED TO BE INCOMPLETE.
III. THE PRECIPITATE DECLARATION OF WAR.

I. WIREMU KINGI'S TRIBAL RIGHT IN THE WAITARA A MATTER FOR JUDICIAL INQUIRY.

The question on which the justice of the war hinges is the right of Teira to sell to Government a block of land, in disregard not only of the tribal right of Wiremu Kingi in the valley of the Waitara, but also of the individual rights of Kingi and other natives having rights to specific allotments therein. The Government would seem to take their stand, mainly, on the negation of Kingi's tribal right. 5

In a very brief and imperfect outline of a debate upon the war, in the Legislative Council, on Thursday, Aug. 30th, it is reported that

"The Attorney General entered into a lengthened and elaborate examination of the whole question, both with respect to the justice and policy of war, commenting upon the papers which had been laid before the Council, quoting them to show that William King had no title to the land, which was in the first instance, that of Te Whero Whero [the Waikato Chief,] by right of conquest, and that the very land purchased from Teira, and which was the cause of the present difficulty, had been included in a portion of the territory purchased by Col. Wakefield in 1839, but, which purchase neither Governor Fitzroy nor Governor Grey had the power to enforce." – (New Zealand Examiner, Nov. 13, 1860, p. 200.)

This accords with the authoritative statement by Mr. Richmond, the "Native Minister," in a paper dated Auckland, 27th April, 1860: –

"King's stand is really taken upon his position as a chief; and possibly had the Ngatiawa not been broken up and driven from their territory, or had the circumstances of King's re-establishment at Waitara been different, his birth might have given him the command over the tribe which he pretends to exercise. It is enough to say that King's right to dictate to them is not recognised by the principal men of the Ngatiawa in Taranaki, and that its attempted exercise is the

real cause of the disturbances which have so long vexed the district." – (Parl. Papers, July 27th, 1860, p. 168.)

In a second memorandum, signed by Mr. Richmond, and dated May 25, 1860, he says, "The right set up by King is simply the old title of the Maori Chief – the right of the strong arm, which he asserts under quite novel circumstances. At the meeting in March, 1859, when Teira's offer was accepted by the Governor, King plainly took this stand. 'Waitara,' said he, 'is in my hand; I will never let it go.'" Again, June 26, 1860, he says, "The only question raised in the purchase of Teira's block was W. King's right to put a veto on the sale." (New Zealander, Aug. 25 and Sept. 5.)

It may be gathered from these citations, that Kingi's veto, so far as regards his tribal right, is denied on the grounds: –

(1) That such right was extinguished by the conquest of the Waikato tribe, and the sale of their right to the Government, or by the sale to Col. Wakefield.

(2) That Kingi's personal right as chief is not recognised by his tribe.

(1.) To elucidate the first of these points, it will be necessary to pass under review the transactions which have accompanied the return of the Ngatiawa tribe to Taranaki.

The main body of the tribe having migrated voluntarily, or been driven southward by the Waikato, the remnant sold a district of 60,000 acres to Col. Wakefield, the agent of the New Zealand Company, in 1840. The Waikato now put in a claim to the district as conquerors, whereupon, in 1842, Governor Hobson, through Mr. George Clarke, Protector of the Natives, bought up their claims by purchasing, not the mana or "tribal right," as abstracted from the usufructuary right of occupation, but "the land and all things that are on or under this land." (Ibid, p. 170.) In June, 1844, Mr.

Spain (the Land Commissioner) confirmed Col. Wakefield's purchase, hut two months later, in August of the same year, Governor Fitzroy set aside Mr. Spain's award, except so far as regards 3500 acres, in favour of the absent members of the Ngatiawa, great numbers of whom were soon re-established in their ancient possessions – Wiremu Kingi, with a party of 587 souls, returned from Waikanae, in April, 1848. [Parl. Papers, Jan. 1850, p. 201.)

It might be argued, according to established New Zealand usage, that inasmuch as the Waikato confessedly did not occupy (except to a most trifling extent,) the district they had conquered, their right as conquerors did not accrue. It might also be urged that on every principle of equity, as well as on a fundamental principle of feudal tenures, the rights of the returning refugees would be restored to them under their original title; 6 especially when brought back under British protection. But we are not left to draw conclusions of a general nature. These are completely superseded by the action taken by Governor Fitzroy. Mr. Spain's award was grounded on the principle of recognising a title in "actual occupiers" only, to the exclusion of that of absentees. The Governor was guided by the opinion of Mr. Clarke, supported by numerous precedents, "that the New Zealanders do not forfeit their territorial rights by being carried into captivity." The remainder of this important transaction is thus narrated by the Governor himself:

"On the 3rd of August, a large meeting of English and natives were assembled at New Plymouth to hear the final decision.

"The Governor informed the assembly that he did not take the same view of the question as Mr. Commissioner

Spain, and that he should not confirm the award of that gentleman.... On points of law, especially the law of New Zealand, considered with reference to national laws in general, authorities might differ without prejudice to the opinion of either, but if was for him, the Governor, to decide. 7 He would immediately cause further investigation to be made as to the various claimants to particular portions of land. He would then endeavour to make special arrangements with those claimants, and he would allow, in all their integrity, the claims of those of the Ngatiawa tribe, who were not parties to the sale in 1840." – (Mem. by Governor Fitzroy, Parl. Papers, June, 1845, p. 101.)

The words, "in all their integrity," guaranteed to the natives the permanent possession of their lands, with all the rights attendant upon such possession, and upon the position of each in the tribe. The words are the more significant, in that Governor Fitzroy had previously referred to the Waikato, as having had their right of sale acknowledged by Mr. Spain, 8 conjointly with that of the remnant of the Ngatiawa.

He sets aside therefore, the consequences of both sales (except so far as regards the 3500 acres), in favour of the absent Ngatiawa.

Governor Grey would gladly have upheld Mr. Spain's award, but he felt the "matter to be beset with difficulties, and complicated in an extraordinary degree." Having, however, been instructed by Mr. Gladstone, the Secretary of State for the Colonies, to do his utmost to procure for the New Zealand Company the block awarded to them by Mr. Spain, he attempted a compromise (March, 1847), "to evade, as far as practicable, the various difficulties which had arisen under these conflicting circumstances." His scheme, which was far from acceptable to the natives, and only partially carried out, was based on the principle of "re-purchase." This he considered had been rendered necessary by Governor Fitzroy's proceedings, and while professedly refusing to admit the ownership of those who would not assent to his arrangement, "he thought proper," says Mr. Richmond, "(probably on grounds of policy) to acquiesce in the assertion of proprietary rights by the ancient occupants; and the precedent thus set has been followed by his Excellency the present Governor." (Parl. Papers, Dec., 1847, p. 13. Mr. Richmond's Memo., May 25.)

Again, in the Memorandum on the Affairs of Taranaki, transmitted to the Colonial Office, November 19th, 1855, the present Governor, without any reservation, designates Governor Fitzroy's decision as "just" and "very politic." (Parl.

Papers, July, 1860, p. 177.) Moreover, the very purchase of Teira's land is in itself a waiver both of the right derived through Mr. Spain's award and of that through the Waikato, for this latter right, if valid at all, was valid for the land and everything on and under it. (See above, p. 4.)

But it is said that Wiremu Kingi had previously alienated his right to the Waitara; and in proof of this, the Colonial Government have published a Deed of Sale, dated Nov. 8, 1839, which was signed by him under the name, E. Witi, for himself and his father, and which embraces within the specification of its boundaries, the block now sold by Teira. This point, therefore, requires some explanation.

The deed upon which Mr. Spain made his award in favour of the Company's purchase at Taranaki, was dated Feb. 15, 1840. To this Kingi was no party. That which he did sign belonged to the previous year, and was one of two deeds of general cession, nearly coincident both in date (Oct. and Nov. 1839) and in the territories assigned by them to the New Zealand Company. (They are printed in Parl. Papers, Apr., 1846, pp. 109 and 113.) Mr. Spain describes them "as the overriding deeds under which the New Zealand Company asserted that it had acquired territories amounting to about one-third of the whole surface of New Zealand." (Parl. Papers, Apr. 1846, p. 36.) The lands ceded by these deeds comprise portions of the middle and northern islands described as lying between the 43rd parallel of south latitude, and a line drawn from Mokau (about 38 deg. S.) on the west, to Tahukakore (about 41 deg. S.) on the cast coast of the northern island. In reference to that signed by Kingi, Col. Wakefield told Archdeacon Hadfield "that he never had any intention of taking possession of any land under it, and it was only intended 'to throw dust in the eyes of the Sidney land-sharks,' that he might keep them away, or that if they came he could assert

a primary claim to the land, which would invalidate any other claim." (Archdeacon Hadfield's Evidence before the House of Representatives, Aug. 14.) From the minutes of the Land Commissioners' Court, held at New Plymouth June 5, 1844, it appears that no issue was raised upon this deed in behalf of the Company, when their claims in that district were formally under consideration, (Parl. Papers, Apr. 1846, pp. 50, (38) and the Commissioner himself "distinctly informed" Archdeacon Hadfield "that when he looked at the deed he treated it as waste paper, and that there had been no award made under it." (Evidence, Aug. 14.) Moreover, both deeds of general cession were virtually set aside by the arrangement with the Imperial Government, under which the Company was allowed one acre for every five shillings expended in land purchases and promoting emigration, (Parl. Papers, May, 1841, p. 86) and which ultimately reduced their claim from 20,000,000 to about 1,000,000 acres, the actual assignment of the land being subject to further limitations as to locality, and to the adjudication of the Land Commissioners and the Governor. It may be doubted whether Kingi understood the real nature of the document he signed, for Waikanae, at which place he was then residing, is included in the land sold to the Company, and the date of it nearly coincides with that of his father's injunction not to sell the Waitara. (See p. 37.) At all events, he may justly consider himself as discharged from all obligations then incurred, by the general disregard of this singular conveyance, as well as by the more formal and decisive action of Governor Fitzroy respecting the Taranaki land above adverted to, nor can it, at this distance of time, be revived against him. The anxiety evinced by many of the Ngatiawa in 1839, to secure an English settlement at Taranaki, arose out of their belief that they would thus be

enabled to return to their old homes without fear of the Waikato. (Mr. Spain, Parl. Papers. April, 1846, p. 52. Col. Wakefield, Rep. Com. House of Commons, 1844, p. 629.)

Applying to the case the principle laid down by Lord Grey in 1847, to maintain rights "already recognised," (Parl. Papers, Dec, 1847, p. 84) it is impossible, consistently with good faith, now to set aside or subvert the formal decision of a former Governor, or to plead claims, in their origin of doubtful validity, and repeatedly waived. 9 A "just" as well as a generous policy cannot be reversed when time has added the right of prescription to its original solidity.

The claim through previous sales being thus barred in equity, and by express and public compact, the tribal right within the valley of the Waitara has not been extinguished; and it cannot be extinguished, if Kingi's claim be good, unless by his consent, express or implied. It is necessary, therefore, to consider –

(2.) Kingi's personal claims as Chief –

a. He has always been acknowledged as such by the authorities and other Europeans.

He was looked upon as the leading man among that por-

tion of the tribe settled at Waikanae in 1847. (Parl. Papers, Feb., 1848, p. 17.)

His birthright is not denied by Mr. Richmond: – "Possibly... his birth might have given him the command over the tribe, which he pretends to exercise – Mr. Richmond's plea being that this birthright has been forfeited by the circumstances of his re-establishment at Waitara. (See above, p. 3.)

Again, Kingi's name perpetually recurs as a leading chief in the correspondence respecting the Taranaki feuds in 1855.

"At the Waitara River... I found William King, one of the principal chiefs of the district." (C. L. Nugent, Major, 58th Regiment, Native Secretary.)

The Rev. W. W. Turton (Wesleyan Missionary) says: – "William King and his tribe have joined all their energies and resources, &c."

The resident Magistrate, Mr. J. Flight, speaks of "the Waitara natives under Wiremu Kingi," – and again of the attempt of "the Ngatimanui," (a distinct tribe) "and Wiremu Kingi" – employing the name of the chief for that of his tribe. (Parl. Papers, July, 1800, pp. 74, &c, 132, 133, passim.)

b. And by the Taranaki natives generally.

The Rev. J. J. Riemenschneider, (no friend to W. Kingi, whom he stiles – whether justly or not is not the question here – "a wily man," and a "notorious" chief,) in a letter to the Chief Land Purchase Commissioner, dated Sept. 24th, 1855, testifies that the Taranaki natives say of him, "he is on his own land, being the real and true chief of Waitara." After pointing out, in words of prophetic warning, the danger as estimated by the natives, of coercive steps against either one or both of the two chiefs, Katatore and Wiremu Kingi, he adds: – "In the course of my listening to their long 'koreros,'

and of my occasionally arguing with them about the various points, I observed that it appeared to me there was much reason to believe that Wiremu Kingi had, properly speaking, no land and no claims of his own to the lands at the Waitara, on the south side. With much evident surprise they (the Taranaki) looked and asked me where then his lands and his claims were if not there, since he was the rightful and principal chief of the Waitara.

"When I further reminded them that W. Kingi had no right either to hold or to occupy land on this (south) side of Waitara river, since in 1847 he had given his distinct promise to Governor Sir George Grey, previous to his coming up from the south, that he would not settle on this side, 10 but on the opposite (north) banks of the river, I received in reply, that W. Kingi being the head chief of all Waitara, on both sides of it, it was for himself to choose and to say on which side and on which spot he was to reside. In fine, the Taranaki natives seem to scorn the idea of having that personage set down as merely a second or third-rate chief, and as being possessed of only a nominal right and claim to the Waitara lands which he holds and occupies." (Parl. Papers, July, 1860, pp. 170 seqq.)

Kingi's name (E. Witi) stands first in the list of Ngatiawa signatures to the Queen Charlotte's Sound deed of Nov. 8, 1839. (Parl. Papers, Apr., 1846, p. 111.)

In a native letter from some members of the tribe, written since the outbreak, they say: "We had no doubt or anxiety about our lands – we had no fear that we should lose them, because we were distinctly informed of William King's de-

termination to keep possession of our lands – he being the chief to protect our lands there." (Fox's War in New Zealand, App., p. 57.)

Wiremu Kingi, then, enjoys at the least the presumption of right arising out of that "notoriety of possession" which, in the absence of other proof, was admitted by the Common Law of England, "as equivalent to the formal grant of seisin." 11 Intestine strife can be no new thing in the interior of a New Zealand tribe: but Mr. Richmond's assertion cannot be accepted without further investigation, "that King's right to dictate to them is not recognised by the principal men of the Ngatiawa," whether "in Taranaki" or elsewhere, and that too, at a time when they have shown the contrary, by rallying round his standard. 12

The question assuredly demands a more sifting inquiry than has hitherto been given to it.

Again, if not the paramount chief of the Waitara, Kingi's position would seem to be at least such as to render his assent essential to the completion of a valid purchase; and the Governor has clearly departed from the wise and cautious principle laid down by himself in 1855: "I have disapproved of Mr. Cooper's conduct, in commencing a survey, before he was assured that all who had even a disputed claim to the land, desired it should be sold, and have declined to make a demand for reparation, which could only be enforced at the expense of a general war, including sooner or later all the tribes in the northern island." (Parl. Papers, July, 1860, p. 177.)

The opinion of a person of Mr. Clarke's antecedents, must carry with it great weight on a subject of this nature. It is this: – "We never considered a purchase complete,

until all parties having claims, or pretended claims, were satisfied. The same rule was adopted by Commissioners Godfrey and Richmond in reference to European purchasers (as distinguished from purchases by the Government). Had such a chief as W. King objected to a purchase, or a chief of much less note, it would have been rejected by them immediately. Apply this rule to the present pretended purchase of Government. * * * * I should have objected to any purchase where such an influential Chief as W. King opposed the measure, or even hinted at an objection, and there is no tribunal at which such cases could be decided, but that of the chiefs; and, after all, no decision would have been valid, without convincing King, and having his assent to the purchase. – Mr. George Clarke, formerly Protector of Aborigines, and Head of the Land Purchase Department for many years; in a letter to Mr. Carleton, July 25th, 1860." (Fox, p. 24.) 13

II. Te Teira's Title alleged to be Incomplete.

Beside the tribal right of veto vesting in and exercised by Wiremu Kingi, Teira's right to sell has also been contested on the ground that there were other owners whose consent had not been obtained.

The Government acknowledged that there were other claimants by appending to the description of the boundary a condition, "that all who might have claims within the block might either sell or retain them, as they thought proper." (Speech of Mr. Stafford, the Colonial Secretary, Aug. 7.)

Among these Kingi himself puts in a usufructuary claim in right of himself and his wife 14 to some small allotments of

the land. Mr. McLean admits that Kingi's cultivations were "wholly, or almost wholly, on the north side of the river." (Evidence, Aug. 14.) Teira himself acknowledges that they were not wholly outside the disputed block, for in a letter to the Governor, March 20th, 1859, he says: –

"Your word advising them (W. Kingi and his party) to mark off their own pieces of land within our line (boundary of the block offered by Teira) they have received, but they do not consent. I consent because it is correct."

Again, in a letter signed Tipene Ngaruna, we meet with this passage: –

"When we met to talk at Hurirapa, Teira said that he would give up his lands outside the boundary, in exchange for the lands belonging to all others within the block which he was selling. All present replied, 'We will not exchange our lands,' &c. "(Dr. Featherstone's Speech, Southern Cross, Sept. 1.)

Mr. Fox says: –

"It is now stated that the 600 acres are not the property of Teira, but the joint property of himself and perhaps 100 other owners – an amount of sub-division very common among natives, whose several occupations are often but a few rods in extent. 15 The Ven. Archdeacon Hadfield declares before the House of Representatives that he is prepared to

prove that there are at least 100 proprietary owners. Riwai Te Ahu gives full particulars in his letter, which I append. 16 Hohepa Ngapaki, and ten others, resident at Otaki, prefer their claims in another letter also appended. 17 Wi Tako, Te Puni, and other important chiefs at Wellington, confirm this to the Superintendent of that Province. Another old chief, who resided for forty years at Waitara, draws a map showing a multitude of small allotments, to which he assigns owners by name. Now only fourteen men and five women have as yet signed the incomplete deed of sale held by the Government; a great many, certainly the majority of these joint proprietors, have not consented to sell; most have never been asked; 18 and tell us that they never heard of the transaction, till informed that the fighting was going on. Some

have positively refused to sell, among whom is Patukakariki, the head of E. Teira's hapu, who is actually fighting on King's side." (Fox, p. 38.) Mr. McLean in his Evidence before the House of Representatives, admits the dissent of Patukakariki, but says that he never asserted his claim.

No little pains have been taken by speakers and writers in New Zealand to prove that Kingi did actually put in his claims both seignorial and proprietary. It is difficult to account for the Governor's allegation, in his opening address to the Legislative Assembly, that Kingi did not "assert" his claims, seeing that nearly the whole year is said to have been spent in investigating the claims adverse to Teira, and in correspondence with Kingi himself and others, on the subject. But Mr. Richmond's statements quoted above are alone sufficient evidence on the point. (See above, p. 3, &c.)

In every point of view, therefore, the conclusion is irresistible, that the action of the New Zealand Government has been hasty and impolitic; the presumption is strong that it has been unjust. Further inquiry is urged by the natives themselves: –

"'The Governor,' said one of the native speakers at the great meeting at Waikato in May last, 'ought to have gone and enquired into the conduct of Te Rangitake (Kingi), then returned, consulted Potatau, and formed a committee of missionaries, magistrates, and chiefs, to enquire into the matter, and if they found that Rangitake is wrong, settle the matter by giving the land to the Governor. But he went to Taranaki and let out all his wrath at once.'" (Fox, p. 37.) And again at Kohimarama in July, one speaker said: – "The Governor was wrong here. Had he sent us to confer with W. Kingi and he had proved obstinate, it would then be time for the Governor to punish him." Another said: – "It appears to me that the Governor was wrong because he did not

first call together the (native) teachers that they might arrange it. Had he done so, it might have been settled. Mr. McLean interposed, and said that four teachers, whom he named, had tried to settle it, but Kingi's party would not listen." (New Zealander, Aug. 1.) But this was an intervention far too slight and informal for so serious an emergency.

From the evidence of Mr. McLean, the Chief Commissioner, before the House of Representatives, it appears, that he initiated the inquiry, and made in person some partial inquiries of those whom he "knew" to be "the real claimants," at Queen Charlotte's Sound and Wellington; and then instructed Mr. District Commissioner Parris to conduct the negociations, and proceed with the inquiries. (New Zealander, Aug. 18.) This admission on the part of Mr. McLean, fully bears out the assertion of Mr. Fox, supported as it is by other high authorities, that the negociation with Teira and the investigation of his title, were virtually left to Mr. Parris, a Sub-Commissioner, "and who really stands in the transaction as at once a party and a judge." (Fox, p. 37.) The Land Purchase Department is, in its very constitution, an agency of the Executive for the purposes indicated by its title, and possesses none of the adjuncts requisite for conducting a regular judicial inquiry. (See Mr. Richmond's Memo., May 25.) – The delicate nature of this transaction, its intricacies, and the momentous issues depending upon it, alike demand a most searching and impartial inquiry, and one, the dignity of which shall carry with it the weight essential to important judicial proceedings.

III. The Precipitate Declaration of War.

There is no evidence that any final report of the proceedings of the Land Purchase Commissioners had been made to the Governor in January. The only report laid before the House

of Representatives is dated as late as July. On this point the testimony of Mr. Fox is clear: –

"No report on the sufficiency of the purchase was furnished by the Land Purchase Commissioners to the Governor before the war commenced; nothing, except two or three letters of so many lines, 'reporting progress,' in the transaction by Mr. Parris. Rut no general report was furnished till the middle of July, 1860, five months after the war had commenced; and the Reports then furnished by Messrs. Parris and McLean, contain no evidence of title, nor any means to enable the Governor to judge of the completeness of the transaction. See these in Sessional Papers, E. No. 3 A." (Fox, p. 40.)

Moreover, "evidence has, since the war began, been brought to light, proving that.... when the Governor commenced the war, he had by no means made himself the proprietor of the land for which we are fighting, nor has he done so to this day." (Fox, p. 38.)

"At the date of the proclamation of martial law, and indeed to this day, only an instalment of the purchase-money had been paid, and no deed or agreement whatever had been executed. After the war broke out, a deed was prepared, (but without any plan of the land endorsed) and signed by nineteen vendors, men and women, the Government, as the Native Minister stated in the House of Representatives, being afraid that these vendors might get killed in the war, and taking their signatures to an incomplete deed 'ex cautela.'" (Ib. p. 39.)

In the course of the inquiry into native affairs in 1850, Mr. McLean, the Chief Commissioner, had recorded his opinion that "it will be found in almost every case impossible to induce the natives to consent to a survey of any lauds which they may not previously have unanimously agreed to sell, as they generally consider any attempt to survey or mark

boundaries, as an exercise of the right of ownership, &c." (Parl. Papers, July, 1800, p. 307.)

Yet the New Zealand Ministry 19 advise (Jan. 25, 1860) "1st. That Mr. Parris be instructed to have the said land surveyed in the ordinary manner, and to take care that the native chief, W. King, be directly, but not officially, made aware of the day on which the survey will be commenced.

"2nd. Should W. King, or any other native, endeavour to prevent the survey, or in any way interfere with the prosecution of the work, in that case, that the surveying party be protected during the whole performance of the work by an adequate military force, under the command of the Senior Military Officer; with which view, power to call out the Taranaki militia and volunteers, and to proclaim Martial Law, be transmitted to the Commanding Officer at New Plymouth.

"3rd. That when the survey shall have been completed, the Officer commanding at New Plymouth shall, until further instructions, keeps possession, by force if necessary, of the said land, so as to prevent the occupation of, or any act of trespass upon it, by the natives." (Despatch of the Governor to the Duke of Newcastle, June 28, 1860. New Zealander, Aug. 25.)

Accordingly on the 20th of February, the survey was attempted. It was resisted, but not by an armed force. Some 60 or 80 of Kingi's followers were present, but they were kept in the background, and the interruption was caused, Mr. Parris says, by one man, according to other accounts by a number of women, who "went out and 'hugged' or embraced them, telling them not to survey the land," and some of them are said to have held the chain. Among these women, as it is now ascertained, were the wife and two daughters of Patukakariki, the chief of Teira's subdivision of the tribe, and the spot where they interfered, is said to have

belonged to that chief, who was and is dissentient from the sale, and is now fighting on Kingi's side. (Fox, pp. 36, 39, 52. Archdeacon Kissling, C. M. S. Papers, p. 15.)

"A short struggle ensued, in which a native, who accompanied the survey party, struck down one of Kingi's men... Mr. Parris, therefore, rushed in to prevent further collision and probable bloodshed, and directed the surveyor to retire." (Mr. Richmond's Memo., May 25, 1860.)

The advice of the ministry had provided against interference in any way. In accordance with it the Governor had prepared a Proclamation of Martial Law, dated 27th January, which he had "forwarded to Brigadier Lieut.-Col. Murray, the officer in command of a detachment of the 65th Regiment at Taranaki, with instructions 'to issue it, if circumstances should occur such as, in his opinion, to render it impossible to carry out the wishes of the Government without resorting to the powers conferred by it.'" (Fox, p. 34.) It was issued, Feb. 22, two days after the resistance to the survey.

The terms of the Proclamation, moreover, are stated, by competent Maori scholars, to have made it a declaration of war, 20 – and that too not against Kingi and his party, but against all the Taranaki tribes – and as such, it is said to have been understood by the natives.

A doubt has been expressed as to whether Colonial Governors have authority to proclaim martial law. 21 It is not necessary to discuss the question here. Even had Wiremu Kingi's claim been less colourable than it is, nay, even though, in the judgment of the Government, he were

clearly in the wrong, the interposition of the military was uncalled for under the circumstances of the case. At the worst, the resistance to the survey was no more than a breach of the peace. The natives of New Zealand are not to be dealt with as a race of savages. By those who know them intimately, they are represented as a law-loving people, and they do not swerve from the conditions of a bargain fairly made and fully understood. They have given proof of their moderation in their general conduct to Europeans, whom they have hitherto greatly outnumbered; and in the present instance, tribes whose sympathies with Kingi is undoubted, have nevertheless stood aloof from the strife, though it was in their power to have created powerful diversions in his favour, by operating against the unprotected settlements. Archdeacon Hadfield distinctly testifies to Wiremu Kingi's having "stated that he really had no objection to the Pakeha's buying land. If they only allow them (the natives) to settle their own differences and define their own boundaries, he would be prepared to negociate with them for the sale of the land." The result of this conversation was communicated to Mr. Parris next morning. The Archdeacon expresses his belief "that had six or twelve months been allowed to elapse without molestation, a sale might have been effected with general consent." (Evidence, Aug. 14.) Kingi, therefore, would not have assumed the aggressive, and negociation was still open to both parties.

But the Governor had committed a further error. The communication with Auckland by steam was easy and rapid, yet he entrusted the issues of peace and war to other hands. In point of fact, he actually hastened down to Taranaki, and on the 1st of March invited Kingi and "any reasonable number of his followers" to a conference, under a safe conduct. But it was too late. The Proclamation of "fighting

law" had been issued. The Governor did not recall or suspend it. Kingi refused to trust himself within his power, and is said, in turn, to have "asked the Governor to come to his pa, assuring him safety." The Governor now complains that "the officer commanding at Taranaki did not carry out his instructions in the manner intended." (Despatch to the Duke of Newcastle, June 28.) Had the Proclamation been withheld till he could reach the spot, the delay of these few days might have given opportunity for calmer deliberation and more cautious action.

It is not necessary to pass under review the events subsequent to the 22nd of February. The tactics of the natives, and their general mode of conducting the war, must be judged of by a Maori rather than by a European standard. The acts of violence and rapine ascribed to them since the war broke out, have been perpetrated by the few, and not participated in by the main body of those in arms against the Government. But they are beside the point now under consideration. No transaction subsequent to the Proclamation of Martial Law can affect the question of the justice or policy of its issue. Whatever opinion be entertained on the points involved in the land question, beyond all controversy the paramount consideration is the precipitancy of the appeal to arms. 22

[Page 24 is blank]

1 Appendix A.

2 Appendix B.

3 Appendix C.

4 Appendix D.

5 There is considerable difficulty in ascertaining precisely the grounds taken by Government – a difficulty which has been felt as powerfully by those on the spot, as it is in England. As far as can be gathered from the statements which have reached this country, the counts of the plea put in in justification of the war are – That the supremacy of the Crown is threatened – (Governor's Address to the General Assembly); That no claim was asserted or possessed by Kingi – (Ib.); That the purchase by Col. Wakefield extinguished all native rights, Kingi's father and himself having been parties to one of the deeds of sale: That the purchase from the Waikato extinguished all tribal right among the Ngatiawa – (Attorney-General and Mr. Richmond); That the birthright centres in Teira himself – (See p. 37); That Kingi's tribal right is disallowed by his tribe – (Mr. Richmond). It is deeply to be deplored, that, in a question of such vital moment. Government has not laid finger on some decisive point on which to take their stand once and for all.

6 Blackstone's Commentaries, vol. iii. pp. 21, 228, Stewart's Edition, 1851.

7 The Commissioners were appointed to "hear, examine, and report," upon such claims as were referred to them. It was explicitly provided that the Governor should not be held obliged to make grants recommended by the Commissioners, "unless his Excellency shall deem it proper to do so." (Land Claims Ordinance, June, 1841. Parl. Papers, Feb. 1842.) Mr. Spain says that in announcing his decision, he "most carefully explained that the same was subject to confirmation by" the Governor, "and could not be carried into effect without his approval." (Parl. Papers, Apr. 1846. p. 60.)

8 This however, is inaccurate. Mr, Spain allowed Col. Wakefield's purchase from the remnant of the Ngatiawa on the spot, as against the exiled members of their own tribe, and remarks that no claim was brought forward on the part of the Waikato. This, he adds, may be accounted for by the contents of a letter from Governor Hobson, put in by Capt. King. In this letter the Governor simply mentions the purchase. (See Parl. Papers, Apr. 1846, pp. 133, 67, 70. The payment to the Waikato, in fact, seems to have been mere hush money. (Rep. Com. House of Com., 1844, p. 113. Parl. Papers, Aug., 1842, p. 188.) It is not easy to see how the right could reside both in conquerors and conquered. The claim of the Waikato, however, whatever its value, was clearly barred as against themselves, by the sale to Mr. Clarke. The Waitara valley is beyond the boundary of the 3000 acres awarded to the Company by Governor Fitzroy.

9 The Despatch quoted in the text was explanatory of principles set forth in the Instructions which accompanied the Charter of 1846. Lord Grey adds: "The Protector of the Aborigines is there directed to inform the Registrar respecting all lands within his district, to which the natives 'either as tribes or individuals,' claim either proprietary or possessory title, that all such claims shall be registered; and that wherever it shall be shown either that such lands have been actually occupied by the natives, or that the ownership to such lands, although unoccupied, has been recognised by the executive or judicial authorities to be vested in the natives, such claims shall be finally and conclusively admitted." These Instructions and the Despatch covering them were unfavourable to the native title, and created no considerable excitement in the colony. Yet they quite meet the case of the Taranaki land dispute, and require that Governor Fitzroy's decision should be regarded as final. (See the Instructions, Parl. Papers, Jan., 1847, p. 85.)

10 Such a promise could not affect Kingi's right as chief, which was personal, had followed him to Waikanae, (see p. 37), and would follow him wherever domiciled. In a list of the returning Ngatiawa, made out by Mr. McLean, in April, 1848, the names both of Kingi and Teira occur as intending to settle at Waitara. (Parl. Papers, Jan. 1850, p. 205.)

11 Blackstone's Commentaries, vol. ii. p. 280, Stewart's Edition, 1854.

12 Appendices E and F.

13 Appendix G.

14 It is now admitted, that whatever the value of his tribal claim. King is one of those who have aright to 'some small allotments' inside the block sold by Te Teira, the precise locality of which is unknown to Government." (Fox, p. 39.)

"All of these different portions of land have names given them by our ancestors; the name of William Kingi's is Te Porepore. One portion of land belonging to his son and daughter, which was the property of their mother, is that on which Te Hurirapa's pa stood, which was burnt by the soldiers. Another portion of land is at Orapa, to the south of where their old pa stood. All these portions are contained in the block asserted to be Teira's, and have all been taken by the Governor." (Riwai Te Ahu. Fox, App., p. 52.)

15 See p 27.

16 Extracts from these are quoted elsewhere.

17 Extracts from these are quoted elsewhere.

18 "Neither he, (the District Commissioner, Mr. Parris,) nor any other Commissioner, ever visited Waikanae or Otaki, where King and the larger part of his tribe had resided for twenty years, and where many of the claimants are now found; nor did they send to those places any notification of what was going on. (McLean's Evidence before House of Representatives.)" (Fox, p. 40).

"We have heard the justification (put forth in defence) of Mr. Parris's wrong act in reference to our portions of land. It is as follows: – 'A long time was allowed to elapse; no objections were made to (the sale) of the land. Mr. Parris, Land Commissioner at Taranaki, carefully inquired in order to ascertain who were the owners of the land offered to him. Mr. Parris made inquiry and was satisfied as to the right.' We presume that this statement is put forth that all men may wonder at the carefulness of his proceedings: that people may be led to believe that he really did make enquiries! Listen. We are living at Waikanae – one at Otaki. Mr. Parris never came to make enquiries of us as to whether we had lands there or not (nor did any of his fellow Land Commissioners come to make enquiries). He did not even write to enquire. He did not during the whole of that year advertise in the newspaper his wish to ascertain what claimants there were to that land. He did nothing of the kind. One of the Land Commissioners enquired of some persons in Queen Charlotte's Sound; but he passed us by and made no enquiries of us." (Ib. App. p. 56.)

It is asserted that some of the alleged signatures purporting to give consent to the sale on the part of members of the tribe at Queen Charlotte's Sound were forgeries. – (Dr. Featherstone's Speech, Southern Cross, Sept. 1.)

19 Appendix H.

20 Appendix I.

21 When Governor Grey issued Proclamations of Martial Law in 1845, 1846, and 1847, an Indemnity Ordinance was passed by the Legislative Council (Oct. 11, 1847), discharging from all legal liabilities, the officers who had acted under them. (Parl. Papers, Aug., 1848, p. 68.)

22 The Native Policy of the Colonial Government is further exemplified by subsequent measures adverted to in Appendix K.

APPENDIX.

APPENDIX.

(A.) Page 1.

THE TRIBAL RIGHT AN INTEGRAL PART OF THE SYSTEM OF LAND TENURE IN NEW ZEALAND.

THE Magna Charta of the New Zealander, as between himself and the British Settler, is the treaty of Waitangi, a treaty to which the faith and honour of the British Crown were pledged in 1840, and the obligations of which have since been again and again re-affirmed by the representatives of the Crown in the colony, and by statesmen of all parties in the Imperial Parliament. It is sufficient to refer to the noble stand taken on this point by Lord Derby (then Lord Stanley), when Secretary of State for the Colonies: –

"I repudiate with the utmost possible earnestness the doctrine maintained by some, that the treaties which we have entered into with these people are to be considered as a mere blind to amuse and deceive ignorant savages. In the name of the Queen, I utterly deny that any treaty entered into and ratified by Her Majesty's command, was or could have been made in a spirit thus disingenuous, or for a purpose thus unworthy. You will honourably and scrupulously fulfil the conditions of the treaty of Waitangi." (Despatch to Sir Geo. Grey, June 13, 1845. Parl. Papers, May, 1846, p. 70. See also Parl. Papers, July 27, 1860, p. 44. Despatches from and to the Colonial Office, &c., passim.)

The Second Article of the Treaty is as follows: –

"Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands

and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it their wish and desire to retain the same in their possession. But the chiefs of the united tribes, 23 and the individual chiefs, yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them on that behalf." (Parl. Papers, July, 1840, p. 10.)

Upon this article two observations are of importance – i. "The Treaty of Waitangi, in the Maori text, expressly guarantees to the Chiefs their full rights of chiefship. The English form, the original draft of the treaty, was less explicit on the point." (Chief Justice Martin, Parl. Papers, Aug., 1860, p. 8.)

ii. The term 'pre-emption' was also rendered in the Maori by a word said to mean simply 'purchase;' but independently of this translation, it has been ruled, on constitutional grounds, in an important judicial decision, to mean not "the first refusal," but the exclusive right of "extinguishing the native title." (Parl. Papers, Dec, 1847, pp. 64, &c.)

Among the peculiar usages of the New Zealanders, is that of the tribal possession of land. The Native Secretary sums up the result of an inquiry on this, among other subjects concerning native affairs, conducted in 1856, in these words, "Individual title to Maori land does not exist except in very rare cases, and these doubtful." (Parl. Papers, July, 1860, p. 309.)

The Report of the Board of Commissioners is in these terms: –

"Each native has a right in common with the whole tribe over the disposal of the land of the tribe, and has an individual right to such portions as he or his parents may have regularly used for cultivations, for dwellings, for gathering edible berries, for snaring birds and rats, or as pig runs.

"This individual claim does not amount to a right of disposal to Europeans as a general rule, but instances have occurred in the Ngatiwatua tribe in the vicinity of Auckland, where natives have sold land to Europeans under the waived

Crown's right of pre-emption, and, since that time, to the Government itself. In all of which cases no after claims have been raised by other members of the tribe; but this being a matter of arrangement and mutual concession of the members of the tribe, called forth by the peculiar circumstances of the case, does not apply to other tribes not yet brought under its influence.

"Generally, there is no such thing as an individual claim clear and independent of the tribal right."

In this opinion 27 of the witnesses examined by the Board concurred. Two witnesses dissented, one of whom mentioned three cases, but stated that "the individual Maories merely acted as agents for the tribe." (Parl. Papers, July, 1860, pp. 237, 257).

Mr. McLean, the Chief Land Commissioner, grounding his opinion on 16 years' experience in all parts of the country, says (April 16, 1856): –

"I do not think that any native has a clear individual title to land in the northern island."

His Taranaki experience has an important bearing on the question now at issue. In reference to the adoption of Crown grants for natives, he remarks: – "I do not think it practicable to give Crown grants to natives by defining the boundaries of individual rights to land; it would be productive of quarrels and disputes, as there is really no such thing as individual title that is not entangled with the general interests of the tribe, and often with the claims of other tribes, who may have migrated from the locality.

"I have tried this system at the suggestion of the Bishop, at Taranaki. It gave me considerable insight into the state of native tenure; but in endeavouring to carry it out I found it took about 30 days to define the boundaries of the claims of 40 individuals over an extent of 40 acres; and even then they regarded the arrangement as altogether imaginary, and it did not appear to affect, in the estimation of the natives, the general or tribal right. When I considered the title settled of some individuals on this basis, I found the natives quarrelled amongst themselves about the boundaries, and prevented any definite arrangement being carried out until I afterwards purchased the whole of the tribal claim in order to secure a clear title.

"I wish every native could get a Crown grant; it would be the means of dissipating many jealousies, and breaking up

their confederacies.... It is absolutely necessary that the tribal claim to such land should first be perfectly obliterated by previous sale to the Government." (Parl. Papers, July, 1860, pp. 303, 304.)

These remarks, are the more noteworthy, because Mr. McLean, is now supposed, by persons of high position in New Zealand, to be labouring with the Governor and Native Minister, "to make it appear that the claims of tribal right, and the right of the hapu, rest only on the 'strong arm,'" (Fox's War in New Zealand, p. 27; see also above, p. 4.)

The Constitution Act (15 & 16 Vict., cap. lxxii) provides only for the purchase "from the Aboriginal Natives" of "land of or belonging to, or used or occupied by them in common as Tribes or Communities," (sect. 73) and the preamble of the Bill which passed the House of Lords, but was withdrawn on the motion for its second reading in the House of Commons in 1860, recites as a reason for further legislation, that in the above Act "no provision is made in respect of land belonging to any of the said Aboriginal Natives, otherwise than as Tribes or Communities."

It may be fairly inferred that the omission arose out of a deliberate design, whether of policy or from a better knowledge of New Zealand tenures, and was not an oversight; for, in the Land Claims Ordinance of June 9, 1811, which must have been in the hands of the framers of this bill, "purchases or pretended purchases" from individuals are recited as having been made previously to the treaty of Waitangi. 24

In January, 1842, Lord John Russell wrote: – "It would appear to be the custom or understanding of the natives, that the lands of each tribe are a species of common property, which can be alienated on behalf of the tribe, only by the concurrent acts of its various chiefs." (Parl. Papers, May, 1811, p. 52.)

In disallowing a New Zealand Act, which will presently be adverted to, Lord Carnarvon in May, 1859, remarks: –

"I perceive, however, that the proposed scheme has a further object, and that it is intended to furnish a means of ultimately enabling individual colonists to purchase the landed property granted in severalty to individual natives... But such a change I conceive to be in the highest degree unadvisable. The present system of land purchase appears as far as I can judge, to be understood and acquiesced in by the natives, and to be working well for the colony."

"On the other hand the system of individual purchase is, to say the least, opposed to the spirit of the New Zealand Government Act (vide supra), and it is open to important objections in point of policy.... I hold it, therefore, far more advisable that Government should purchase territories than that individuals should purchase properties, &c." (Parl. Papers, July 27, 1860, p. 172.)

The testimony of an old and experienced colonist, whose position gives his statements and opinion the weight of authority, is decisive as to the practice of the Government in this respect: –

"There is no doubt that on previous occasions purchases may have been effected from hapus, or even from individuals, with only the tacit consent of the tribe; but such cases are exceptional, and, as a general rule, the Government has always made the head chief a party to the negociation, and paid the whole, or a great part, of the purchase money to him, on behalf of the tribe. No instance previous to the Taranaki purchase, has ever occurred in which land has been purchased by the Government from a hapu, or from an individual, against the remonstrance of the head chief. See the preceding extract from Mr. Clarke's letter. 25 A return of any such purchase, if it existed, has been moved for in the House of Representatives, and the mover has been told by the Government that the return would be simply 'nil,' and no return has yet been made. The purchase from E. Teira, which has led to this war, is believed to be the first attempt to buy from individual natives or from a hapu, against the personal remonstrances of the chief of the tribe, and the chief of the hapu." (Fox, p. 25.)

In a despatch dated Oct. 14, 1858, Governor Browne himself quotes at length and as conclusive upon the subject, the evidence of Mr. Merivale before a Committee of the House of Commons in 1857, to the effect that "in New

Zealand, by the interpretation put upon the treaty of Waitangi, by the Home Government, it was considered that the New Zealand tribes had a right of proprietorship.... like landlords of estates, for which the Crown was bound to pay them." (Parl. Papers, July 27th, 1860, p. 18. See Report of the Committee of the House of Commons, July, 1857, p. 10.) It is therefore, to say the least, somewhat strange that he should now write, "This is a subject of great difficulty, and the practice varies in different parts of New Zealand." (Parl. Papers, August, 1860, p. 4,) and again, "the right to sell land belonging to themselves without interference on the part of the chiefs (not having a claim to share in it,) is fully admitted by Maori custom." (Governor Browne to Sir E. B. Lytton, 29th March, 1859, in Fox, p. 27.) The weight of evidence is therefore conclusive that, with exceptions too trivial to touch the general question, the tribal right is and has hitherto been uniformly recognised as an integral and inseparable part of the existing system of land tenure among the natives of New Zealand. The principal chief is the legitimate mouthpiece and representative of the tribe; and though his influence will vary with the strength of his individual character, he exercises, as chief, a right which savours of a seignorial or manorial right: but that right reaches no higher than a principle of land tenure.

It follows that it constitutes no part of "the rights and powers of sovereignty" ceded to Her Majesty by the treaty of Waitangi, for it floats beneath all questions of sovereignty, being, in fact, a native title secured to the Maories so long as they desire to retain it, by the selfsame instrument which ceded the sovereignty, and under which provision is made for the extinguishing of the same, by purchase, by the Queen alone. When the Governor, referring to Kingi's opposition to the sale and resistance to the survey, addressed to the General Assembly the words: – "I felt it to be my duty to repel this assumption of an authority inconsistent with the maintenance of the Queen's Sovereignty, and the right of the proprietors of the land in question," – he mistook the real nature of the question he had to deal with, both in reference to the sovereignty and the proprietary rights of Teira.

(B.) Page 1.

POLICY OF THE NEW ZEALAND GOVERNMENT DIRECTED TO THE MODIFICATION OF THE TRIBAL TENURE.

OF lands (unoccupied by the settlers) which have not a native owner, "there is not an acre in New Zealand." (Governor Browne, Parl. Papers, July 27th, 1860, p. 49.) Under these circumstances it is obvious that the tribal tenure, in a growing colony like New Zealand, is accompanied by many inconveniences. At all times "the Maori feels keenly the parting with his rights over the lands of his ancestors. The expressive words of the deeds of cession declare that under the bright sun of the day of sale, he has wept over and bidden adieu to the territory which he cedes to the Queen." (Mr. Richmond, ib. p. 166.) And during periods of abnormal disturbance, which recur with frequency among a partially reclaimed and semi-civilized people, such a tenure, in the hands of designing men, may become a barrier seriously obstructive even to the equitable extinguishment of native titles. It is therefore by no means a matter of surprise that attempts should be made to relax the stringency of the system. The subject has been frequently before the General Assembly. The object of "The Native Territorial Rights Act, 1858," disallowed by Lord Carnarvon in the Despatch already quoted, was to enable the Governor in Council "to make free grants, to a limited extent, to individual natives, of lands over which the native title shall have been ceded for the purpose." (Parl. Papers, July 27th, 1860, p. 64.) The individualization of native titles was also one of the objects proposed by the Rill of the Imperial Legislature in 1860. Again, in a message from the Governor to the chiefs assembled at the Kohimarama Conference, dated July 18th, 1860, he says: "Some land might be held in common for tribal purposes, but he would like to see every Chief, and every member of his tribe in possession of a Crown Grant for as much land as they could possibly desire or use;" and in introducing this message the Native Secretary (Mr. McLean) observed, "The Governor was most anxious that some means should be devised by the Chiefs now assembled in conference, to define Tribal Boundaries, and make such a sub-division of property among tribes, families, and individuals, as would

secure to them their landed rights on a more sure foundation than now existed." (New Zealander, Aug. 1, 1860.)

All these measures, it will be observed, assume the existence of the tribal right.

The relaxation of it, there is reason to believe, would be acceptable to a minority of the chiefs, and principally to those most Europeanized in their habits and pursuits. It is repugnant to the wishes of the great majority of the tribes. Be this, however, as it may, to any equitable and well-advised scheme which, after fair negociation, is found to command the confidence of the Maori land owner, and to which his intelligent assent can be secured, there can be no reasonable objection.

(C.) Page 1.

APPREHENSIONS OF A FORCIBLE INTERFERENCE WITH THE TRIBAL RIGHT.

The recent acts of the New Zealand Government have been received both by natives and Europeans as indications of a movement in this direction, otherwise than by legislation and the consent of the chiefs. Any such intention has at length been disavowed by the responsible ministers. The disavowal, however, was so long delayed, and the ferment raised by the apprehension of it was and is so serious, that the subject cannot be passed by without notice.

There has long been a growing indisposition on the part of the natives to dispose of their lands; and this has found expression in a powerful combination known as the Anti-land-selling-league. The league, commencing about fifty miles south of Auckland, embraces nearly the whole of the interior of the island and extends to the east coast, and to the west coast south of Kawhia (Report of the Board on Native Affairs, Parl. Papers, July, 1860, p. 210); some of the most active and influential members of it are resident in the immediate neighbourhood of Taranaki. This settlement has, from its foundation, been surrounded by difficulties so urgent that in May, 1858, the Provincial Council memorialized the General Assembly, to the effect, "that the difficulties under which both races are now labouring can only be removed by an entire change in the policy of the Government, which shall enforce law and order among the natives, and give support and aid to such of them as are willing to sell land"

(Swainson's New Zealand, p. 205.) – and "that the system heretofore adopted of requiring the assent of every claimant to any piece of land before a purchase is made, has been found to operate most injuriously in this Province on account of the conflicting interests of the claimants, and that the sufferers by this system are invariably the men who are most advanced in civilization and who possess the largest share in the common property. Your memorialists are therefore of opinion that such of the natives as are willing to dispose of their proportion of any common land to the Government should be permitted to do so, whether such natives form a majority or only a large minority of the claimants, and that the Government should compel an equitable division of such common land among the respective claimants, on the petition of a certain proportion of them." (Ib., p. 372.) "Governor Browne," observes Mr. Fox, "very properly opposed this attempt 'to coerce a minority of natives into selling their lands,' The proposal, however, is of consequence, as indicating the strength of the desire felt to obtain the waste lands at Taranaki; and what gives it peculiar importance is this fact, that one of the representatives of Taranaki in the General Assembly fills the office of 'Native Minister,' and has been for nearly five years one of the Governor's 'responsible advisers,'" – (Fox, p. 21.)

Yet when the Governor visited Taranaki in March, 1859, "at a public meeting of all the principal chiefs of the district," he said "he thought the Maories would be wise to sell the land they could not use themselves, as what they retained would thus become more valuable than the whole had previously been. He never would consent to buy land without an undisputed title. He would not permit any one to interfere in the sale of land unless he owned part of it. On the other hand, he would buy no man's land without his consent." – (Parl. Papers, July 27, 1860, p. 167.) The words emphasized above, might be interpreted either as directed against the usurpations of a self-constituted association like the Land-league, over-riding the free action of the independent chief; or against the well known right of interference on the part of those who, by immemorial usage, possess and may lawfully exercise that right. If only the former were intended, it should have been so explained, for it was understood by the chiefs in the latter sense, and "as striking at the very root of their power." (Archdeacon Kissling, C. M. S. Papers, p. 14).

Negociations, which followed close upon this address,

so far from allaying the fears of the chiefs, rather tended to convince them that their apprehensions were not unfounded.

On the 18th March (ten days after the meeting) Mr. McLean (the Chief Land Commissioner) issued a public notice addressed to W. Kingi, and other chiefs: –

"You know that every man has a right of doing as he pleases with his own portion, and no man may interfere to prevent the exercise of his right, for the thought respecting his own is with himself.... The thought respecting his own piece is with each. This is a word of advice to you, lest you should interfere, without ground, with Te Teira, &c." (Fox, p. 27.)

On the 2nd of April, Assistant Native Secretary Smith again wrote to W. Kingi. The letter and its general purport are thus alluded to by Mr. Fox: –

"Now they are informed the 'ancient tenures' are to be changed. The 'chieftainship of the land' is no longer to be regarded. 'The Governor's rule is for each man to have the word (or say) as regards his own land.'" (Ib.)

Wiremu Kingi, in a letter to Archdeacon Hadfield, (Dec. 5, 1859) tells him that he "said to Mr. Parris, Disputed land the Governor does not desire. That Pakeha replied, That was some time ago, now this is a new system of the Governor's." (New Zealander, Sept. 1, 1860.)

The new system might be to cany out the purchase of disputed land in spite of the dissent of those whose claim had been disallowed – a policy in most cases highly dangerous; but the expressions used by Mr. McLean and Mr. Smith naturally led the chiefs to imagine that the innovation extended also to the disregard of the tribal right. "The natives," says Mr. Fox, "regard the transactions as indicating an entire change in the system of land purchase, and as a departure from the principle of the treaty of Waitangi." (Fox, p. 26.) Nor were the natives the only parties who put this interpretation upon the Governor's proceedings. He has been commended by one party, and suspected by the other, both outside and within the walls of the House of Representatives: – and on both sides because it was believed he intended to set aside the rights of tribes and chiefs. The Bishop of Wellington, vindicating to the Governor the conduct of Archdeacon Hadfield, says: – "I think you have been misled in the matter of Archdeacon Hadfield's conduct about the Taranaki war. He

told me, some months back, that he wished to write to you about the state of the natives at Taranaki, as he had received a letter from William King; hut as I then expected you and the General Assembly in February or March, I recommended his waiting till you came, and then to talk the matter over. We had no idea of the sudden coup de main your Excellency was planning, and the Proclamation of Martial Law in the Province of Taranaki came upon us before we had any opportunity of remonstrance. Both the Archdeacon and I were out of the country, and on the high seas, when your Excellency made the speech you allude to at Taranaki; I never saw it, or heard of it, till last month. But at the same time I should say, that if I had seen it, I should never have understood from it that you were going to introduce a new principle in the deciding of native titles to land; and that you were going to ignore the tribal right of ownership, and to accept the usufructuary possession as being a title to the fee simple." 26 (Southern Cross, Sept. 1, 1860.)

If they were not really feeling their way to some ulterior measures, such as those ascribed to them, the conduct of the Government can only be regarded as in a high degree incautious and unstatesmanlike. It was not without reason that Dr. Featherstone said in the House of Representatives, (Aug. 17, 1860) "I hoped that ministers would have openly declared whether the " New Policy" recently adopted in the purchase of native lands, of which Wiremu Kingi and the natives complain, the policy of recognizing individual native claims and of ignoring tribal rights, is to be persisted in.

. . . The principle has, for the first time, applied in the purchase of the land at Waitara, and considering the disasters it has caused, that one province may be said to be completely destroyed, and that the prospect of a general war is daily becoming more imminent, I think that the colony has be-right to know whether this new policy . . . is henceforth to be the policy of his Excellency's Government. For if such is the decision of the Government; or if this new policy be not openly and officially disavowed, I do not hesitate to say that it will be regarded by almost every tribe in New Zealand

as a violation of the rights solemnly guaranteed to them by the treaty of Waitangi, and that the disasters of Taranaki will be repeated in various parts of this island, but on a greater scale." – (Southern Cross, Sept. 1, 1860.)

(D.) Page 1.

THE MAORI KING MOVEMENT, AND THE QUEEN'S SUPREMACY.

COMPLICATED with the Land-league already adverted to, and more dangerous, but not necessarily connected with it, for some members of the League repudiate it, is the King Movement, the chief seat of which is among the Waikato. A Waikato chief, Te Whero Whero, or Potatau, was the first "King," and his son, who has assumed the style and title of Potatau II., has succeeded him. "There is a feeling of nationality among the natives in reference to their lands," and these they see fast passing into the hands of strangers. (McLean, Parl. Papers, July, 1860, p. 304.) The feeling also is strong amongst them, – and common to them and to the loyal natives – that while the law interposes between the settler and the native, there is no law as between native and native; their ancient customs are falling into dissuetude, and no new code has taken their place. These two feelings combined would appear to constitute the strength of the movement. The extreme party are earnest for a really independent national status. A larger party ask for no more than effective magisterial authority and a just share in the government of their country. None have hitherto manifested a disposition to commence hostilities against the Government; on the contrary, so far from having seized the opportunity for establishing a Maori kingdom, Potatau and the Waikato chiefs offered to mediate between Kingi and the Government. The movement is variously regarded by different authorities in the island as more or less serious. It might, doubtless issue in such an assertion of independence as would amount to a clear breach of the treaty of Waitangi; for by that treaty the natives became British subjects, and, resigning on the one hand their right to enter into treaty compacts and make territorial cessions to foreign powers (perhaps the most valuable to Great Britain, of all the adjuncts of the sovereignty,) and limiting their privileges

in dealing with British subjects; they, on the other, established an indivisible unity of empire under the British crown, any breach of which would now be revolutionary. But Kingi's opposition to the sale of Waitara has no direct and antecedent connection with this movement, of the nature of cause and effect. Nay, it dates back of a period coincident with the colonization of the country and long anterior to either the Land-league or the King movement. "I myself," says Riwai Te Ahu, "formerly heard the private language of Reretawhangawhanga, William King's father, in the pa at Waikanae, in 1840, in reference to Waitara, not to sell it to the Pakehas. And he continued to express the same determination until his death in 1844. And he left a strict injunction to William King to carry out his wishes after his death." (Fox, App., p. 54.)

The Waitara natives have always manifested an indisposition to sell their lands, and a respect for the rights of absentees. (Parl. Papers, Apr. 1846, p. 143.)

It may not be superfluous to remark here, that the question as to whether Kingi acted in co-operation with the Land League and Maori King movement or not, is not material, so long as his interference was confined, as in this case, to the exercise of a right claimed by him under the established usages of the country.

The discrimination of the Governor was, therefore, greatly at fault, and his proceedings only such as still further to complicate, rather than unravel the difficulties of his position, when he "selected this particular occasion" – a simple question of the rights of property – "for vindicating the supremacy of the Crown." (Fox, p. 44.)

(E.) Page 13.

GENEALOGIES OF KINGI AND TEIRA.

The presumption from notoriety as regards Kingi's right to the chieftainship at the Waitara, does not appear to have been overruled by other evidence of a decisive character; for had this been the case, the Government, in the excited state of the country, were bound to give it all publicity without delay. Nothing which deserves the name of evidence on this point is traceable in the debates in the House of Representatives, or the public papers. An attempt, indeed, but appa-

rently not a serious one, has been made to set up Teira's right as Chief of the tribe, against Wiremu Kingi, by the publication of a genealogical tree, in which Teira's pedigree is traced back seventeen generations to an ancestor of the name of Kahuiti. An anonymous writer, but evidently one of some mark, who contends, against the supporters of Kingi's right, that there is "no feudal lordship amongst the Maories," remarks upon this pedigree "that it would seem to lead us to a conclusion the reverse of that which was intended," in suggesting the likelihood that W. Kingi and his party, upon principles of intra-tribal right, have a claim upon the land of the tribe, for "Wiremu Kingi's descent may be traced by thirteen generations through a woman of the name of Maurirangi to the very same stock." (Dr. Featherstone's Speech, Southern Cross, Sept. 1; Letter of Anglo-Maori, Ib., July 31.)

(F.) Page 13.

RESOLUTIONS OF THE NATIVE CONFERENCE.

The evidence in the text has reference only to the Ngatiawa and the tribes in the neighbourhood of Taranaki, whose local knowledge qualifies them to become witnesses in the case. It may be answered that the third resolution of the Chiefs at the Native Conference at Kohimarama, was: – "That this Conference having heard explained the circumstances which led to the war at Taranaki, is of opinion that the Governor was justified in the course taken by him; that William King Te Rangitake himself provoked the quarrel, and that the proceedings of the latter are wholly indefensible." (New Zealander, Sept. 1.)

It must, however, be borne in mind that the members of this Conference were selected for their known friendship to the Government; that considerable excitement prevailed respecting this resolution, which, after all, is very vague and general, and which was not assented to till the next morning; that three of the Chiefs recorded their dissent from it; and that the apprehension almost universally expressed as to a war of races indicates that the general sympathies of the natives are felt to be with Wiremu Kingi.

(G.) Page 14.

KINGI'S PERSONAL SERVICES TO THE GOVERNMENT.

THE Governor endeavours to cast a slur upon Kingi's personal character: – "He has no sort of influence with me or the Colonial Government," he writes to Lord Stanley, in June, 1858; "and we believe him to be an infamous character." (Fox, p. 19; see also Despatch to the Duke of Newcastle, June 28, 1860.)

The point is not material, for it cannot affect the question of his tribal or personal rights. It is, however, satisfactorily-proved, that King's loyalty has been stedfast, and his assistance of sterling value in times of imminent peril. Archdeacon Hadfield's testimony on this point is decisive: – "I have known him for twenty years. When the first collision took place in the year 1843, between the English and the natives, under the command of Te Rauparaha and Te Rangihaeata at Wairau, the latter were elated with their success, and proposed to plunder and destroy the town of Wellington. Great efforts were for some days made to organise a force for the purpose. The strength of the local government was ascertained. The time required to obtain troops from the neighbouring colonies was nicely calculated. But the attempt was baffled. In a work published last year in London, and written by Mr. Swainson, the late Attorney-General of the colony, the safety of Wellington at that time is attributed to my influence and exertions. I received the thanks of the Governor of the Colony. I was then residing about forty miles from Wellington, at Waikaure, a native pa, of which William King was the chief. He had about a thousand well-armed men who obeyed his orders. I attribute to that chief's loyalty alone the failure of Te Rauparaha and Te Rangihaeata's schemes.

"Again in the year 1846 when Te Rangihaeata was in arms against the Government in the neighbourhood of Wellington, William King, though a near relation of that chief, evinced his loyalty to the Crown, not only by a steady resistance to all the solicitations of that chief, but by actually taking up arms against him. He captured with two exceptions the only prisoners taken during the war, and in fact hastened its conclusion." (Archdeacon Hadfield – Letter to the Duke of Newcastle, p. 22.)

When contemplating his return to the Waitara in 1847, he would not do so "by stealth," observing "that the Ngatiawa tribe had always been friendly to the Europeans, and it was their desire to continue on the same amicable terms they have hitherto been." (Parl. Papers, Feb. 1848, p. 17, and supra, p. 12.)

(H.) Page 20.

SOLE RESPONSIBILITY OF THE GOVERNOR IN NATIVE AFFAIRS.

The Governor, in these transactions, has been guided by the advice of his "Responsible Ministers" – who, for native purposes, become "the Executive Council," which, by his instructions, he is bound to consult. The ultimate responsibility however rests with himself. This will appear from the annexed extract from a Minute explanatory of the view taken by him of the relation between himself and his responsible advisers on the introduction of this plan of Government, in April, 1856.

"2nd. On matters affecting the Queen's prerogative and imperial interests generally, the Governor will be happy to receive their advice, but when he differs from them in opinion he will (if they desire it), submit their views to the consideration of Her Majesty's Secretary of State, adhering to his own until an answer is received.

"Among imperial subjects, the Governor includes all dealings with the native tribes, more especially in the negociation of purchases of land." (Parl. Papers, July, 1860, p. 209.)

(I.) Page 21.

PROCLAMATION OF MARTIAL LAW.

Literal translation of the Proclamation of Martial Law from the version published in Maori: –

PROCLAMATION.

By the Governor, Colonel Thomas Gore Browne, Principal Chief, C. B., &c, &c., this Proclamation is by the Governor of this Colony of New Zealand.

Because soon will be commenced the work of the soldiers of the Queen against the natives at Taranaki, who are naughty

(rebellious,) fighting against the authority of the Queen. Now, I, the Governor do openly publish and proclaim this word, that the fighting law [ture wawhai,] will extend at this time to Taranaki as a fixed law until the time when it shall be revoked by Proclamation.

Given by my hand, under the great seal of the Colony of New Zealand, at Auckland, this day the twenty-seventh day of January, in the year of our Lord one thousand eight hundred and sixty.

THOMAS GORE BROWNE,
By order of the Governor, Governor.
E. W. STAFFORD,
Secretary of the Colony.
GOD SAVE THE QUEEN.

This is clearly open to the double misconstruction pointed out in the text, being capable of being understood as a declaration of war; and as being directed, not against the followers of Kingi only, but against all the natives of Taranaki whom it may be taken as predicating to be naughty and fighting against the Queen. No other translation has been put forth by the Government, who, however, assert that it is not quoted by the natives now in arms as a justification of their conduct, or as containing a fair challenge to fight. The Colonial Secretary, Mr. Stafford, is reported to have said, "If the Proclamation were re-translated into English, it might be made to bear any construction." (Speech, Aug. 7.) Surely the most scrupulous care ought to have been taken that it could admit of but one construction, whether to the native reader or to the English translator.

(K.) Page 23.

SUBSEQUENT MEASURES OF THE COLONIAL GOVERNMENT.

ON the meeting of the General Assembly in August, 1860, the Responsible Ministry introduced a Bill to be entitled "The Native Offenders' Act, 1860." It encountered very strong opposition, and while these remarks were passing through the press, it became known that, in consequence of the

motion for going into Committee having been carried only by the casting vote of the Speaker, it has been withdrawn. Its abandonment is here recorded as a matter of deep thankfulness. But it serves to illustrate the policy of the present New Zealand Government towards the natives, and publicity is now given to its provisions, to show the necessity for the introduction of some such measures as are calculated to secure for the natives a full and fair consideration of their lights and interests.

The exorbitant powers which would have been conferred by this Bill over the rights both of person and property, in the case too of British subjects, will be at once seen from the offences which it created, and the penalties which it imposed; and which might at any moment and over any extent of country, have been called into active operation by Proclamation, on the sole responsibility of the Governor.

The objects of the Bill are stated in the Preamble; –

"Whereas Aboriginal Natives, after committing offences against the law, occasionally escape to remote districts, and are there harboured by Chiefs and Tribes who refuse to deliver them up to justice: And whereas also combinations are occasionally formed amongst Aboriginal Natives for the purpose of resisting the execution of the Law and for other unlawful purposes: And whereas it is expedient, in order to enforce obedience to the Law in the cases aforesaid without the employment of military interference, that the Governor should be enabled to prevent dealings and communications with the Aboriginal Natives offending as aforesaid: Be it therefore enacted, &c."

Clause I gives the short title, "The Native Offenders' Act, 1860."

By Clause II the Governor was authorised to declare that all or any of the provisions of the Act shall apply to any specified district.

The offences it proposed to create are: –

"III. Whenever any district, shall, by virtue of any such proclamation, have been declared and be subject to the provisions of this Act, every person who, without the written permission of the Governor first obtained for such purpose, shall do any of the acts next hereinafter specified, shall be deemed

to be guilty of an offence against the provisions of this Act, and shall he punishable accordingly, as hereinafter provided, namely, every person –

"(1.) Who shall wilfully visit any part of such district, either by land or water, or, not being a resident thereof, shall remain therein after having become cognizant that the same is subject to the provisions of this Act.

"(2.) Or who shall knowingly purchase, or carry by land and water, or receive, any goods or chattels whatever the produce of such district, or the property of any aboriginal Inhabitant thereof.

"(3.) Or who shall purchase or otherwise obtain any goods or chattels for the use or benefit of any aboriginal Inhabitant of any such district.

"(4.) Or who shall knowingly sell any goods or chattels whatever to any aboriginal Inhabitant of any such district, or to any person with intent that the same may be applied or disposed of for the use or benefit of the aboriginal Inhabitants of such district, or any of them, or who shall otherwise carry on trade or commerce with such Inhabitants or any of them.

"(5.) Or who shall knowingly and wilfully hold any communication or correspondence whatever, directly or indirectly, with any aboriginal Inhabitant of any such district.

"(6.) Or who shall by counsel or otherwise assist, invite, or encourage the inhabitants of any such district to offer or to continue to offer resistance to the execution of the Law, or shall publish or utter in writing or by word of mouth, any language calculated to invite or encourage such resistance with intent to produce that effect.

"(7.) Or who shall refuse or wilfully neglect to depart from or leave any such district within a time to be fixed by the Governor by any writing under his hand, after having been personally served with a copy of such writing or otherwise made aware of the contents thereof.

"(8.) Or who shall aid, assist, or abet any person in the commission of the above-named acts, or any of them, or shall knowingly excite, encourage, solicit, ask, require,

or induce any person or persons to commit, or aid, assist, abet, or join in the commission of any of the above-named acts."

Clause IV gave the Governor power to declare tribes or individual natives subject to the provisions of the Act. The penalties are contained in Clauses V, VI, VII:

"V. Every person who shall be convicted in a summary way before two Justices of the Peace of any offence under this Act shall for the first offence forfeit and pay any sum not exceeding the sum of £100 as to the said Justices shall seem meet; and if any per, on so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in a summary way before any two Justices of the Peace, every such offender shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labour for such term not exceeding twelve calendar months, or less than six calendar months, as the convicting Justices shall think fit; and if any person so twice convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted thereof before a Court of competent jurisdiction, shall be liable to be punished by penal servitude for any term not less than three years, and not exceeding six years, as such Court shall think fit.

"VI. Provided always that it shall be lawful for the Governor to commute the punishment to be awarded on a second or third conviction for any of the said offences, to banishment from the colony of New Zealand for such term as he shall think fit, and to order and cause such person to be removed from the said Colony accordingly, to such place to be approved of by the Governor, as the person so to be banished shall choose, and in default of his making such choice on being called upon or required by the Governor so to do, then to such place in Her Majesty's dominions as the Governor shall direct or appoint.

"VII. If any person who shall have been so banished and removed as aforesaid, shall be at large in any part of the Colony of New Zealand without lawful cause before the expiration of the term for which such person shall have been ban-

ished, every such person being thereof lawfully convicted, shall be liable to penal servitude for any term not less than four years, and not exceeding ten years. "

Summary jurisdiction over property, without a hearing on the part of the accused, and without requiring any previous prima facie evidence as to its being stolen property, was thus vaguely and arbitrarily given in Clauses VIII to XII.

"VIII. All goods and chattels personal of whatsoever kind, or wheresoever found, of any aboriginal inhabitant of any district, or of any tribe of aboriginal inhabitants, or of any aboriginal native respectively, subject to the provisions of this Act, may be seized by any person authorised by the Governor to make such seizures, and when seized shall be delivered into the care of some person to be appointed by the Governor in that behalf.

"IX. All ships, vessels, boats, barges, punts, and canoes, and all vehicles, employed or used, and all goods or chattels personal, dealt with in any manner in contravention of the provisions of this Act, to whomsoever the said ships, vessels, boats, barges, punts, canoes, vehicles, goods, or chattels may belong, may be seized by any person authorised as aforesaid, and when seized shall be delivered into such care as aforesaid.

"X. Whenever any goods or chattels personal, ships, vessels, boats, barges, punts, canoes, or vehicles shall have been so seized and delivered as aforesaid, the person into whose care the same shall have been delivered shall forthwith cause a notice giving full particulars of such seizure to be published in all the newspapers published in the Capital Town of the Province in which the seizure shall be made, and if there be no such newspapers then in such other way as may be calculated to give full publicity to the same, and shall by such notice warn all persons having any claim in respect of such seizure to prefer the same to the Resident Magistrate of such Capital Town within twenty-eight days after the day of the first publication of such notice.

"XI. On such claim being made the said Resident Magistrate shall fix a day for the purpose of hearing the same, and shall, at the request of the claimant, issue a summons calling

upon the person in charge of the property seized to appear. On proof of the due service of such summons it shall be the duty of the Resident Magistrate to examine the claim, whether the person so summoned be present or not, and cither to condemn the said property as liable to seizure under this Act, or order the same to be given up to the said claimant, as to such Resident Magistrate may seem just.

"XII. If no claim shall be made in respect of any seizure within the time fixed for claiming the same, or, if made, it shall not be duly prosecuted, or if the property seized shall have been condemned in any such case, the property seized may be sold in such manner as the person in charge of the same shall think fit, and the proceeds arising from such sale shall be disposed of in such manner as the Governor shall direct."

Clause XIII indemnified persons acting under the authority of the Governor in pursuance of the provisions of the Act.

Clause XIV provided that no prosecution under the Act should be commenced without the authority of the Governor, and "that the production of any written authority, either general or special, and either previous or subsequent to the act done," for the purposes of the Act, "purporting to be signed by the Governor, shall be prima facie evidence of such authority having been given."

The preamble of this Bill recites that its object was to enable the Governor "to enforce obedience to the law" " without the employment of military interference." It may reasonably be doubted whether the inhabitants placed under the ban would quietly submit to outlawry and civil excommunication; and especially whether they would permit the comprehensive seizures contemplated in Clauses VIII and IX without resistance; or even whether friendly tribes and chiefs would submit to be debarred from all intercourse with their proscribed fellow-countrymen. It would be impossible to carry out such a measure without the general support of the people, a support which there is no probability that they would give.

The obstructions it would have placed in the way of the whole body of Missionaries are too obvious to require notice.

LONDON: T. C. JOHNS AND SON, ST. BRIDE'S, FLEET-ST,

Williams & Norgate have published:

The War in New Zealand. By WILLIAM FOX, Member of the House of Representatives, Auckland, New Zealand. 8vo.

One of England's Little Wars. A Letter to the Right Hon. the DUKE OF NEWCASTLE, Secretary of State for the Colonies. By OCTAVIUS HADFIELD, Archdeacon of Kapite, New Zealand. 8vo...1s.

23 This refers to a confederacy of chiefs in the northern portion of the northern island, formed by Mr, Busby, in Oct., 1835.

24 Be it therefore declared... that all the titles to land in the said colony of New Zealand, which are held or claimed by virtue of purchases, or pretended purchases, gifts, or pretended gilts, conveyances, or pretended conveyances, leases, or pretended leases, agreements, or other titles, cither mediately or immediately, from the chiefs or other individuals or individual of the Aboriginal tribes inhabiting the said colony, and which are not or may not hereafter be allowed by Her Majesty... are, and the same shall be absolutely null and void (Sec. ii). Parl. Papers, Feb. 28, 1842, p. 6).

25 Cited above, p. 13.

26 The Bishop obviously means that he should not, at that time, have put upon it the interpretation which subsequent events seems to justify; and hence should not have thought it incumbent upon him to take the steps which the Archdeacon is blamed for not taking.

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