The First Settlers in New Zealand and their Treatment by the Government

James Busby

First published by Williamson and Wilson in 1856

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

Epub © 2014 Early New Zealand Books Collection

ISBN 978-1-927289-85-3

[TITLE PAGES]

THE FIRST SETTLERS
IN
NEW ZEALAND,
AND
THEIR TREATMENT BY THE GOVERNMENT;

BEING
A SPEECH
DELIVERED AT THE TABLE OF THE HOUSE OF REPRESENTATIVES,
AUGUST 1st, 1856.

REVISED AND ENLARGED.

BY
JAMES BUSBY , Esq,

AUCKLAND:
PRINTED BY WILLIAMSON AND WILSON, AT THE "NEW ZEALANDER" OFFICE.
1856.

[Page ii is blank]

[PREFACE]

PREFACE.

THE history of English Legislation can furnish but few precedents of British subjects having been deprived of their property by an Act of the Legislature; and never but in cases of rebellion or treason.

The several Ordinances of the New Zealand Legislature, dealing with what are called "Claims to Land," are, in this respect, unprecedented. They profess to deprive a class of British subjects of their lands, because those Lands are too extensive, or too valuable, for a subject to possess.

The several Acts of Parliament which gave power to the New Zealand Legislatures to make laws, expressly required that the laws made by those Legislatures should "not be repugnant to the laws of England." The Ordinances and Laws of New Zealand affecting Titles to Land contain provisions which are a direct violation of Magna Charta and The Bill of Rights – the fundamental laws of the realm of England which protect the private rights of citizens in their landed estates.

The Instructions under the Royal Sign Manual of 1840 designate any "such Ordinance" as shall be repugnant to the Laws of England as a "pretended Ordinance," which "shall be absolutely null and void to all intents and purposes." Previous Ordinances were made by Governors with Councils of their own

nomination. "The Old Land Claims Final Settlement Bill of 1856" 1 is passed by an Assembly consisting of an elected House of Representatives and a nominated Council. Its history is this: – The Governor, in his opening address to the Assembly on the 15th April, said, "I trust you will lose no time in authorising the formation of a Commission with full powers to settle the many vexed questions connected with Land Claims, and for the quieting of disputed titles." On the 9th May Mr. Sewell moved "that a Select Committee be appointed to consider and report as to the nature and extent of outstanding land claims, and the best means of finally disposing of the same."

The Committee met on the 27th, 28th, and 29th of May, and on the 3rd, 4th, 6th, 7th and 9th of June, and examined witnesses. The evidence given by these witnesses was not printed for the information of members of the Legislature, nor is it alluded to in the report of the Committee. Various petitions were also referred to the Committee, to which the Report makes no allusion, except by stating in a "Postscript," "that the claims of all such petitioners should be heard and decided on by the Commissioners now recommended in accordance with the provisions of the Act proposed to be passed on the general subject," while some of those provisions so restrict the powers of the Commissioners as to make it impossible for them to do justice to the petitioners.

The Report of the Committee professes to give the "Past History and Present State of the Land Claims;" but with what impartiality, may be judged from the following fact, namely, that while it states that "Her Majesty, by Royal Instructions of 14th August, 1839, declared that no titles to land not proceeding from or recognized by Her Majesty should be

recognized," it omits the sentence which immediately follows that declaration: – "You will, however, at the same time take care to dispel any apprehensions which may be created in the minds of the settlers, that it is intended to dispossess the owners of any property which has been acquired on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community." 2

Her Majesty, not acknowledging titles as valid before a "Legislative Commission" should investigate and ascertain what are the lands in New Zealand held by British subjects under grants from the Natives, how far such grants were lawfully acquired," 3 &c, only intimated, and could only lawfully intimate, that Her Majesty would not maintain titles thus acquired, without a previous inquiry into their justice.

Mr. Alfred Domett, who signs the Report as Chairman of the Committee, was present at every meeting of the Committee excepting on the 28th and 29th of May, on which days evidence was given that land purchases were made under the direct sanction and assistance of the British Government before New Zealand became a British Dependency, providing that even if the titles thus acquired were technically void in law, they would still be binding on the good faith of the British Government.

This evidence was furnished by the production of official despatches from the Governor of New South Wales to the British Resident at New Zealand. Evidence was at the same time given from Parliamentary Reports and Blue Books, that the local Government was not authorized by Her Majesty's Government in

"declaring such titles absolutely null and void;" but, on the contrary, that Her Majesty's Government contemplated "that application to Parliament may hereafter become necessary to provide for the investment in the Crown of any proprietary rights which may be thus acquired by private parties, with such equitable compensations to them as, under all the circumstances of the case, may appear to be expedient." 4 Reference was also made to despatches from three successive Secretaries of State, all shewing that their views did not accord with those of the local Government; but, on the contrary, that it might be fairly inferred that they considered titles acquired from the Natives to be valid in law, unless they should be set aside by Act of Parliament.

All this evidence, a knowledge of which was essentially necessary to have enabled the Legislature to attain to a right judgment respecting the questions upon which they were called upon to legislate, was absolutely ignored by the Committee. So far from its having been printed for the information of members of both Houses, the Report does not even mention that such evidence had been received.

Under such circumstances, the following Address was by permission, granted on petition to the House of Representatives, delivered at the table of the House.

1 The title of the Act as it passed the Legislature is "The Land Claims Settlement Act, 1856."

2 Parliamentary Papers, 8th April, 1840 – p.39.

3 Ibid.

4 Mr. Under-Secretary Labouchere to Mr. Hutt, M.P., in Parliamentary Papers of 8th April, 1810, – p. 28.

ADDRESS.

ADDRESS.

MR. SPEAKER AND HONOURABLE GENTLEMEN, –

I appear at your bar by the privilege which has been- accorded to me in answer to the prayer of my petition, to shew cause against the passing of the Bill which is now on the table of your honourable House, and which has been read a first time, entitled "The Old Land Claims Final Settlement Bill."

I have said in my petition, that it is impossible for any member of this House to understand the questions upon which it is proposed to legislate by that bill, without a careful study of the evidence and of the Petitions which have been referred to the Select Committee: which evidence and which Petitions have not been printed and thereby rendered accessible to honourable members. Nor has the Report of the Committee so much as referred to that evidence, or to those petitions, saving, with regard to the latter, that the subjects of them are more fit for the consideration of the Commissioners whom it is proposed to appoint, than of this House: at the same time that the clauses of the bill place such restrictions upon the powers of the Commissioners, as to make it impossible for them to do justice to the petitioners, and to other parties whose rights are effected by the bill.

When I look, sir, to the language of this report, and to the provisions of this bill; when I remember the opprobrium which has been cast upon the parties with whose interests it proposes to deal – opprobrium which, though not cast upon myself personally, I am equally obnoxious to – (nor, indeed, do I wish to separate myself from those who have been so foully calumniated) – I cannot but feel that I have, in addressing this House, to contend with a weight of prejudice which it may be difficult to overcome.

I can only, sir, appeal to that English love of fair play which I trust, we have not all left behind us in our native land, – to that sense of justice which will not decide a case without hear-

ing. And, if I should utter sentences which may grate upon the ear of members who entertain feelings and opinions opposite to mine, I appeal to that magnanimity which ought always to be an attribute of such an assembly as this.

I have, sir, represented to this House, in my petition, that the enactments of this bill amount, in many cases, to a virtual confiscation of the property of the original settlers. I heard it, if I heard aright, described in this House last evening by a member of the Ministry, as "in some respects a judicial bill." It is, in fact, a Bill of Pains and Penalties.

The persons whose interests are affected by this Bill ask you for bread, and you offer them a stone. That, sir, is but half the truth. They complain to you that they have been chastised with whips, and you threaten to chastise them with scorpions. I have no doubt, sir, that before I sit down I shall make it appear that I am more than justified in using such language as this.

It is not my intention to detain the House by reading documents which I laid before the Select Committee, and which I hoped to see printed for the information of this House, as the essential elements to a sound judgment on this question. For it is a question upon which there is not only a great want of information, but one on which the greatest misapprehension exists, and with respect to which the most cruel untruths have been published by persons in authority. And it is quite necessary, as I have said, that those documents should be studied by members before they are capable of coming to a just conclusion with respect to it. I have, however, before me a note of the dates and descriptions of the Parliamentary and other papers to which I shall refer, which I shall give to any honourable member who wishes to verify thereby the statements which I shall make.

In order that the history of the land purchases from the Aborigines might be fully understood, I considered it necessary to go back to the beginning of the connexion of the British Government with New Zealand. I produced to the Select Committee the original of the King's Letter by which I was appointed His Majesty's Resident in this country. Sir, I might have gone further back, and have produced to them the Memoir relative to New Zealand which I addressed to Lord Goderich in 1831, which first opened to the British Government the importance of these Islands to British interests, and led first to my appointment, and eventually to the settlement of the thriving Colonies of which you now are the representatives.

This Memoir was printed in 1832, and I shall be happy to shew a copy of it to any honorable member who may have the cariosity to look at it.

I also produced the original of the Instructions 5 which, by the King's command, were addressed to me by Sir Richard Bourke, the Governor of New South Wales, under whose immediate orders I was placed, and begged the attention of the Select Committee to a paragraph in those instructions, which, required me to countenance and assist the well-conducted traders and settlers who were already settled in New Zealand or might resort thither. I beg the particular attention of honorable members to the word settlers, a term which in the Colonies has always been applied to persons who acquired land and settled upon it. It is true that there is no specific instruction to encourage or assist in the purchase of land, but I certainly considered it my duty, and a very troublesome duty it sometimes was, to aid intending purchasers of good character with my advice and influence, and I have done so at the expense of my purse also. The purchase of land was also a frequent subject of my communications to the Government, but I had never the slightest intimation that there was any thing in these transactions which could be called in question. On the contrary I referred the Select Committee to various despatches which shewed that I was perfectly correct in the view which I took of my duties.

When I waited upon Sir R. Bourke at his request for the purpose of reading the draft of my instructions, and suggesting any addition to them, I complained to him of the hardship of my having, at my own expense, to purchase land in a country where property was so insecure; and of having to erect thereon the house in frame which the Home Government had ordered for me, where mechanics, if procurable at all, could only be obtained at a great expense. He replied that he could not feel justified in putting the Colony to any farther expense. (In fact it was a subject upon which an annual protest was made in the Legislative Council of that colony, that New South Wales should have to bear the burden of my mission instead of the mother country.) "But," said Sir R. Bourke, "you may make a very good thing of it by buying land down there.

I now come to the official documents to which I have referred. The first was a despatch from the Secretary of State announcing the appointment of Lieutenant McDonnell of the Royal Navy as an additional Resident subordinate to me. This despatch stated, as the motive to his appointment, that he had resided in New

Zealand upon property acquired by him there, and that it was considered that the office which was conferred upon him would be useful for his own protection as well as for the protection of the settlers located near him.

The next was a despatch from Sir R. Bourke in relation to a communication which I had made to him, on the subject of a complaint made to me by a native chief upon whose land Mr. McDonnell had exercised rights of property, which Mr. McDonnell considered himself to have acquired from tribes who had not authority to convey such rights. Sir Richard Bourke, with the advice of his Executive Council, instructed Mr. McDonnell not to buy land the title to which was disputed, and to use such caution in these transactions as to give the natives, no excuse for asserting that he made use of his official influence to forward his private interests.

Now I think, Sir, it is a necessary inference from the specification of the exception, that the rule is admitted. Land was not to be bought where the title was disputed, therefore, land might be legitimately bought when it was not disputed. Caution was required in such transactions: – therefore, such transactions were authorised where caution was exercised.

Honorable members will observe that this language was used towards a public functionary, as such. With reference to private individuals, I never conceived that any authority existed in any British functionary which would entitle such functionary to say to one of the Queen's subjects, "You shall not buy land in New Zealand." Indeed, I referred the Select Committee to a passage in the Report to the House of Commons of the Committee on Aborigines – in which it is expressly laid down that in such cases the British Government had no authority to interfere. 6

I trust, Sir, nothing more need be said to convince honorable members of this House, that in affording what advice and assistance I could to respectable settlers in the purchase of land, I took a correct view of my duty. I remember a speech of the Duke of Wellington, who was Prime Minister at the time, but whether it referred expressly to New Zealand, I do not remember. The Duke of Wellington stated that Her Majesty's subjects were entitled to the protection of Her Majesty's Government in every part of the world to which they might be led in pursuit of their lawful avocations. I never had the least reason to doubt that

these were lawful avocations in the pursuit of which Her Majesty's subjects were entitled to the protection of a British functionary.

I next referred the Select Committee 7 to two paragraphs in a despatch from myself, which is also printed in the Parliamentary papers: in the first of which I had circumstantially acquainted the Government (and I beg to observe that duplicates of all my despatches to the Governor of New South Wales were sent to the Secretary of State,) with the extent of land which already had been, and rapidly was being, transferred from the possession of the Aborigines to that of British subjects; – and in the second paragraph, to my having suggested to the Government the appointment of Commissioners of high standing, not connected or likely to be connected with this part of the world, to subject such titles to a searching investigation, in order that the Government, if called upon to protect Her Majesty's subjects in the enjoyment of the property thus acquired, might first be satisfied of the justice of their titles. I little thought, Sir, that Commissioners should ever have arrived to investigate and report that we had acquired our property on equitable conditions, and that our titles to that property were acknowledged by the former proprietors; and that the Government should make use of this report, not to confirm us in the possession of our property, but to deprive us of it.

Now, Sir, it is a remarkable fact that, during the period to which these transactions refer, Sir Richard Bourke published a proclamation warning a party of Her Majesty's subjects who had gone from Van Diemen's Land to Port Phillip, and treated with the aborigines of that district for the purchase of land, that they could acquire no title under such purchase. The same British Governor who sanctioned and encouraged the purchase of land in New Zealand, was no sooner informed of the transaction at Port Phillip than, in the most public and authentic manner, he declared it to be absolutely void, – the former being an independent country, and the latter being under the Queen's dominion, and the jurisdiction of the Governor of New South Wales.

It was eighteen months after the date of the despatch to which I have referred, and in which I had pointed out the circumstances of the country to be such as would probably suggest to the British Government the necessity of a change in the relations of this country to Great Britain, before the Government took any action upon the subject. At length, in January, 1840, Captain Hobson arrived at the Bay of Islands, with powers to

treat with the Native chiefs for the cession of the Sovereignty of their country to the Queen of England. His instructions from Lord Normanby, the Principal Secretary of State for the Colonies, required him, if possible, also to contract with them that thenceforward they would sell no land excepting to the Queen, through agents to be appointed by her to treat with them for that purpose. The treaty of Waitangi was concluded on the 6th of February of that year. In June following I was in Sydney, when Sir George Gipps promulgated his measure for settling what have been termed – most unjustly termed – Claims to Land in New Zealand. Sir, there is a looseness, perhaps as often an art as an inadvertency, in the use of words, the tendency of which is to divert the mind from the real object to which such words are made to apply, and to fix it on something of an analogous character but essentially distinct. Persons emigrating to the Australian Colonies under the regulations of the Government, were entitled to claim a grant of land from the Colonial Government, in proportion to the capital they took to the colony, and were prepared to invest upon the land in agricultural or pastoral pursuits. Persons arriving under these conditions were called claimants for a grant of land, or land claimants: – that is, persons who were prepared to show that they had complied with the conditions upon which the Government offered to alienate a part of the public domain. Sir, this term has, whether from inadvertence or intention, been most incorrectly, most injuriously applied to persons who had purchased lands in New Zealand before it became a British possession. I entreat the attention of honourable members who are unacquainted with the early history of these transactions to this distinction, because, by the use or rather the abuse of this appellation, the public mind has acquired a most erroneous impression with relation to the rights of such of Her Majesty's subjects as were affected by the provisions of this first Bill of Sir George Gipps and of those of the bills which followed it. I say that this term of land claimants has been most unjustly and most injuriously applied to such persons, because it places them in the same category as those who were dependent upon the Crown for a grant of Grown land upon the prescribed, conditions, and reconciled the public mind to their treatment as such: whereas they were the undisputed proprietors of land which had been purchased from the rightful owners, with their own money – land which never did belong to the Crown, and the title to which was not dependent upon the Crown or the Ministers of the Crown, but upon the law of England, which no authority under that of the Three Estates of Parliament could annul or set aside.

Now, Sir, under ordinary circumstances it might well be considered presumption in me, who am no lawyer, to express an opinion on a legal question in a House which contains so many lawyers; hut under the circumstances which I am about to explain, I hope that it will not appear altogether presumptuous to express so confident an opinion. It happened to me, when on a short visit to the United States of America in the year 1844, to have the good fortune to make the acquaintance of the late Judge Story of Massachusetts. To honourable members who are lawyers, it is needless that I should say one word of the authority of Judge Story as a Jurist; but to honorable members who are not lawyers, I may be allowed to observe that Lord Brougham has stated in his published works, that since the days of Blackstone no such jurist has arisen as Judge Story; and Sir Archibald Alison, himself a lawyer, has introduced his name in the Modern History of Europe in terms equally eulogistic. It is, I believe, a rare thing for an individual in the walks of civil life, and unconnected with politics, to be noticed in the pages of contemporary history. This singular honor has been conceded by the historian of Modern Europe to Judge Story, though not connected with Europe.

Arriving in America direct from New Zealand, it was natural that my conversation with that eminent person should turn upon recent events in this country; upon the Treaty of Waitangi, and the measures of the Government, – and that I should mention how largely his Commentaries had been quoted by Sir George Gipps in framing his measures with respect to the lands acquired by the British settlers before New Zealand became a British dependency. This was a subject in which Mr. Story took so much interest, that I offered him a perusal of the papers containing the despatches of Lord Normanby and the proceedings before the Legislative Council of New South Wales, including the speeches delivered at the bar of that Council by Mr. Wentworth, Mr. Darvall, and myself. I left them in his hands and proceeded to New York, where I remained three weeks. On my return to Boston, I again saw Mr. Story at his house in Cambridge, when he said to me, – "Mr. Busby, you can have little idea what an interest your papers have excited here. I happened to be lecturing to my class on Aboriginal or Indian titles, [he was Professor of Jurisprudence in Harvard University, at Cambridge, as well as Judge of the Supreme Court of the United States in Massachusetts] and I alluded to the new aspect under which the question had arisen in your distant part of the world. The result was that I had applications from, I suppose, not fewer than twenty of my students for a sight of them." I trouble the House with these particulars in

order to show that the subject was not alluded to by him in a mere conversational manner, but that he entered into it con amore. He said I should do him a great favour if I would send him all the Parliamentary papers on the subject, which I had the pleasure of doing on my arrival in London. Judge Story pronounced a high eulogium on the speech of Mr. Wentworth, showing the illegality of the proceedings of Sir G. Gipps and his Council, and made some enquiries respecting him; and he also stated that the views I had myself expressed were perfectly correct, – the views which I expressed when sixteen years ago I deprecated the measures of Sir Geo. Gipps and his Council, as I am now called upon to deprecate the still more unjust measures which this Bill proposes.

Sir, I shall quote the words of Judge Story as I noted them down at the time; – "The Government will find it necessary in the long run to acknowledge all your titles which are undisputed by the Natives. I know what trouble our Government has had with questions of a similar character. Your titles do not belong to the category of Aboriginal or Indian titles. It is of no consequence what was the social or political condition of the New-Zealanders, the British Government had recognised and treated with them as a substantive and Independent State, and whatever other Nations might say to it, the British Government is bound by its own act. The Chiefs of New Zealand ceded to the Queen the pre-emption of their own lands, but they had divested themselves of all title to your lands before, the Treaty, And they could not convey to the Queen rights which they had ceased to possess."

By Public Law, then, which regulates the construction of treaties, and by the Municipal Law of England, which protects the rights of British subjects, these titles are valid in law, unless a better title can be established before the Legal tribunals of the land. I take it for granted that members of this House cannot be so ignorant of Blackstone, as not to be aware with what jealousy the Law of England guards against the interference of the Crown or its Ministers with the rights of individuals, arising out of their property in land, as established by the Municipal Law.

It was in answer to a question from a member of the Select Committee, whether I had any legal opinions on the point, that I referred to this conversation with Judge Story. Of course the weight to be attached to the opinions therein expressed is, dependent in some degree upon the weight which may be considered due to my testimony; but that the words have an intrinsic authority, independent of any name, will not I think be denied.

I was also able to produce to the Select Committee, from a pamphlet which was printed for private circulation by Mr. Martin, the Chief Justice of this Colony, but which afterwards became public by appearing in a newspaper, a passage to nearly the same effect. It is as follows: –

"The title, then, of Great Britain to this country rests entirely upon a voluntary cession of the Sovereignty of the country to the Queen: THEREFORE, ACCORDING TO THE ESTABLISHED PRINCIPLES OF LAW, ALL PRIVATE RIGHTS OF PROPERTY EXISTING IN THE COUNTRY AT THE TIME OF THE CESSION REMAIN UNAFFECTED BY THAT CESSION."

Of course I am aware, I have good reason to be aware, that there is a judicial decision of Chief Justice Martin which seems to conflict with this sentence. But there was a dictum of the Judge on that occasion which I did not fail to preserve, although it did not appear in his published address to the Jury. It was as follows: – "As a British subject could not be allowed to plead the invalidity of British law in a British court of justice, so a Colonial subject of the Crown could not be allowed to plead the invalidity of Colonial law in a Colonial court." It would I think appear from this that Judge Martin considered himself bound to administer the Colonial law as he found it, leaving it for the appellate jurisdiction to reverse his decision as being repugnant to British law.

But, sir, I have another authority, that of Mr. Wentworth, who I believe enjoys a high reputation as a constitutional lawyer. In a report from the Constitution Committee of the Legislative Council of New South Wales in 1852, referring to the restriction upon the Legislative power placed by the early Charters of America, as well as by the Constitution of the later Colonies, – "that their laws shall not be repugnant to the law of England," he says, "doubtless the validity of any Colonial law might be impeached on this ground, as well in the Courts of the Colony as in the Privy Council, in all cases of appeal to that Council from the Colonial courts; but for this end the local and appellate jurisdictions already existing are sufficient."

If I understand these words rightly, I should conclude that Mr. Wentworth would consider that the Queen's Judges sitting in her Colonial Courts, were bound in the administration of justice, to take judicial notice of the repugnancy to the law of England of any Colonial Ordinance.

I admit that these are all incidental authorities – I do not ask the lawyers in this Assembly to adopt my opinion, and to say that this Bill, if it should pass, would be and that all Ordinances of a similar character which have preceded it, are "pretended Ordinances, having no force or validity," which is the lan-

guage used in the Instructions under the Sign Manual with regard to such enactments as may be repugnant to the law of England; but I do believe that there is not a lawyer in this House who would risk his professional reputation so far as to express a contrary opinion.

It would appear, too, from the course pursued by Sir George Gipps, that he and his advisers considered that the only mode of placing the New Zealand titles at the mercy of the Government, was by the assumption – the strange assumption – that New Zealand at the date of the Treaty was not, and never had been, an Independent State. He asserted this in the most positive terms, and then proceeded to prove that Aboriginal titles bad no validity without the allowance of the Queen. 8 His speech extends over seventeen pages of the Parliamentary papers. It is singular enough that the Queen's Principal Secretary of State for the Colonies should have published in England a "memorandum" 9 containing an elaborate exposition of the grounds upon which it was necessary to consider New Zealand as an Independent State, and to acquire the Sovereignty over it by treaty, only a short time before the Queen's Governor addressed an equally elaborate speech to his Legislative Council, in order to induce them to pass a Land Claims Bill founded upon the contrary assumption.

Now, sir, although the Home Government were most unhappily induced to allow Sir George Gipps to take his own course, I can find no passage in all the public despatches which expresses any concurrence in the assumption upon which he founded them. The acknowledement by Lord John Russell of Sir George Gipps' despatch, conveying a copy of his speech, is, in the shape in which it appears in the Parliamentry papers of 11th May, 1841, page 78, a most remarkable one. It consists of a single sentence expressing admiration of the ability "with which Sir George Gipps had expressed his views – preceded by a few asterisks which indicate that something was left out which it would be inconvenient that every one should see. Now, sir, when I look at the Queen's Instructions conveyed by Lord Normanby to Captain Hobson, and to the memorandum of Lord John Russell which I have just referred to, I think I should be justified in assuming that in the original despatch the place of the asterisks was occupied by some such passage as this: –

"Before this despatch can reach you, you will have received a memorandum which I addressed to the Governor of the New Zea-

and Company, shewing that by several Acts of Parliament and numerous Public Acts of the Government, New Zealand had been acknowledged as a substantive and independent state, and that it would not be for the honour of the Queen's Government, that the Treaty of Waitangi should be considered as 'a device to amuse savages' in conformity with the wishes of the New Zealand Company. It is, therefore, to be regretted that he should not have been guided by the Queen's Instructions to Captain Hobson through Lord Normanby, in which her Majesty had stated that New Zealand had been solemnly recognized us a Sovereign and Independent State, and that Her Majesty disclaimed all intention to seize upon the Sovereignty or soil of those Islands."

I hope honorable members will not mistake me, and suppose that I have been quoting a published despatch. It is only a fancy portrait – a probable filling up of the place occupied by the asterisks which precede the soothing sentence with which the despatch is concluded. Now, Sir, I think it is never enough to be lamented that Sir George Gipps should have adopted a course so widely at variance with the Queen's Instructions and with the truth.

I know that it was his persuasion that if he had admitted the right of the New Zealanders to sell their lands to whom they would, territories of immense extent would have been found to be legally in the possession of individuals. I know that this was the persuasion of his whole Council, but this evil, if it had existed, was one which it was not within the power of a Colonial Legislature with derivative and limited authority, to remedy. The Queen's Instructions required Captain Hobson to proclaim that Her Majesty would not recognise titles acquired from the Aborigines of New Zealand, but he was specially directed "to take care to dispel any apprehensions that it was the intention of the Government to deprive them of their lands, which should be found to have been acquired upon equitable conditions, and should not be of such extent as to be inconsistent with the latent interests of the community." He was to appoint Commissioners to investigate the titles to such lands, and confirm or make them of public record by a grant from the Crown. But here the Instructions stopped. It was, Sir, a necessary protection to the natives, and what I myself had, as I have already stated, recommended in the despatch from which I quoted, that such a mode should be adopted of ascertaining the extent of the lands which they had alienated, rather than to leave disputed titles to the decision of courts of justice, as cases of dispute might arise. But the Queen's not allowing those titles could not make them invalid, if undisputed by any person asserting a prior

or better title. With regard to such titles as might have been acquired, of an extent so great as to be inconsistent with the latent interests of the community, the despatch is silent, at least there is not one word of confiscation. And we have an index to the mind of the Government on this question in a letter to Mr. Hutt, M. P. from Mr. Labouchere under Secretary of State for the Colonies. 10 It is there stated that circumstances might arise which might make it necessary to apply to Parliament to vest in the Queen the proprietary rights acquired to territories in New Zealand, with equitable compensation to the holders. Now, Sir, had these Instructions been adhered to, I am fully persuaded that no difficulties would ever have occurred. All the blood shed in New Zealand, and the million of money expended with such humiliating results in the "little war," with the Northern tribes, would have been saved. The Governor would have from time to time, as the investigation of the Commissioners proceeded, confirmed and recorded the titles to lands which he might conceive to be of such an extent as might be allowed under the Queen's Instructions; and he would have abstained from any action with respect to titles of a more extensive character, until the whole of the investigations should have been completed, when the time would have arrived for the Queen's Ministers to determine whether or not the circumstances had arisen which would have made it expedient to apply to Parliament "to vest such titles in the Crown, with equitable compensations to the holders." The final result would, I believe, have shewn that no such necessity had arisen; for, sir, whatever may be the views of theorists with respect to systematic colonization, I can never believe that the British Parliament would, by statute, have deprived a British subject of his landed estate in a colony where there are 700 acres of land for every man, woman, and child (whether English or Aboriginal) existing in it, on the ground of its being too extensive for an individual to possess; – when it did not exceed (and no title admitted by the natives does exceed) one-third of the extent of some landed estates held in the British Islands; and when its fee-simple did not amount to one month's rental of some estates there. Sir George Gipps, however, as I have said, unhappily thought that he could settle the matter better by a departure from the Queen's Instructions, than by adhering to them; and by the substitution of his own arbitrary will for the law.

The provisions of the Bill which he laid before his Council were of such a character as to excite in my mind the most

intense anxiety for their effects upon the minds of the natives. Sir, I was allowed great freedom of speech by that Council, and I used that freedom of speech to tell them that they were framing iniquity into a law, which would be revolting to the minds of the natives, who would judge the conduct of the agents of the Government by the precepts of the Gospel, and pronounce them to be robbers. I did not, sir, say that their measures would drive the natives into rebellion, but I did say that from the time those measures became known to the New Zealanders, the child-like confidence with which they had relied on the uprightness of the British Government would be at an end. And with that confidence would cease all power in the Government to promote the welfare of the natives, or to protect Her Majesty's natural-born subjects otherwise than by an armed force;

If, sir, it is an evil and a bitter thing for a private individual to forsake the paths of truth and righteousness, and enter upon the tortuous ways of falsehood and fraud, what human foresight tan trade the ramifications of evil when men who are placed by the Providence of God in the position of Governors and Legislators, forget their high mission, and carry out measures which are founded in falsehood, by acts of injustice? Lord Bacon has some sentiments applicable to this subject, so just and so beautifully expressed that I trust the House will allow me to read them. In his "Essay on Truth" he says, – "The poet that beautified the sect that was otherwise inferior to the rest, saith yet excellently well, 'It is a pleasure to stand upon the shore; and to see ships tossed upon the sea; a pleasure to stand in the window of a castle, and to see a battle and the adventures thereof below; but no pleasure is comparable to the standing upon the vantage ground of Truth (a hill which cannot be commanded, and where the air is always clear and serene), and to see the errors, and wanderings, and mists, and tempests in the vale below; so always that this prospect be with pity and not with swelling pride. Certainly it is heaven upon earth to have a man's mind move in charity, rest in Providence, and turn upon the poles of truths"

"To pass from theological and philosophical truth to the truth of civil business" (the affairs of Government) "it will be acknowledged, even by those that practice it not, that clear and round dealing is the honour of man's nature, and that mixture of falsehood is like alloy in coin of gold and silver, which may make the metal work the better, but it embaseth it; for these windings and crooked courses are the goings of the serpent, Which goeth basely upon the belly and not upon the feet. * * *

Surely the wickedness of falsehood and breach of faith cannot possibly be so highly expressed, as in that it shall be the last peal to call the judgments of God upon the generations of men; it being foretold that 'when Christ cometh' he shall not 'find faith upon the earth.'"

It was finely said by D'Israeli, that "Justice is Truth in action," And, sir, what is Injustice but Falsehood in action? Falsehood when it hath conceived bringeth forth injustice, and injustice when it is finished bringeth forth war and bloodshed, confusion, and every evil work, distress of nations and perplexity of Statesmen; – all which we have proved and are proving in this misgoverned colony.

I do not so much blame Sir George Gipps and his Council, – who, I have no doubt, thought they were averting a fearful evil – as I blame those who, with better knowledge of the circumstances, not only carried out his measures but added to their bad faith, and aggravated their injustice. Sir George Gipps' measure contained no clause which, so far as the enactment of a Colonial Council could have that effect, violated the national faith, by declaring the lands of the natives which were guaranteed to them by the Treaty, to be demesne lands of the Crown; nor did it contain any clause professing to confiscate titles, acquired frome the natives, which its provisions did not admit. The Land Claims Bill of Captain Hobson and his Council, did both. That Bill dealt with sufficient severity with the rights of Her Majesty's subjects; but after Captain Hobson, came Mr. Shortland and his "little Bill" which annulled even the rights that its predecessor had guaranteed, and, because the New Zealand Company's territories had been valued to them at 5s. an acre, professed to deprive the original settlers of all the land which their expenditure in the purchase of their estates would not cover at 5s. an acre.

Mr. Shortland's Bill was repealed in its turn, or rather I should say, it was disallowed by the Queen. Then came Capt. Fitzroy's measures. I requested the attention of the Select Committee to a very remarkable correspondence between Capt. Fitzroy and Lord Stanley, before Capt. Fitzroy left England. 11 I dare say Capt. Fitzroy found it difficult to understand the absurd enactments of the Land Claims' Ordinance, and he wrote to Lord Stanley to inquire what was to become of the "surplus

lands," that is, the excess of land purchased by individuals above what the schedule of valuation with its sliding scale allowed them. The answer is of such a nature as makes one grieve that the respectable name of Lord Stanley should be attached to it. It evades the question. Instead of giving Capt. Fitzroy a direct instruction for his guidance, it says in the following words, or words to the following effect: – "The hypothesis being that the land had ceased to belong to the Natives, and that it was not the property of those who purchased from the Natives, it follows from this hypothesis that it was demesne of the Crown." In what way Lord Stanley meant Capt. Fitzroy to do his duty by hypothesis, or in what sense Capt. Fitzroy understood this strange letter – I am not aware. But the course which Capt. Fitzroy did adopt was, under the circumstances, perhaps the best which a man who was desirous of doing what was right, could have adopted.

He at once saw that the most important step towards the peace and prosperity of the Colony was to put an end to the doubts and uncertainties which his predecessors had created with respect to the titles to land. The Commissioners had by this time investigated about 750 titles, and had put on record the most remarkable fact 12 – a fact perhaps unparralleled in history, – that out of all that number not more than four or five had been disputed by the Natives, but on the contrary acknowledged and maintained. The investigations of the Commissioners had also shown how erroneous had been the views entertained with respect to the prices which had been paid for those lands. It is recorded in history that one of the present United States of America was bought from the Indians for "a soldier's old coat and a pair of trousers." Doubtless Lord John Russell thought that estates or territories in New Zealand had been acquired on similar terms, for he spoke in Parliament of not "giving back the hatchet or the blanket" for which they had been purchased, but of confirming the purchasers in a liberal proportion of their purchases. Leaving out of the question the insecurity of property in such a state of society, my firm conviction is that few valid purchases, and by valid purchases I of course mean those in the North, which were made as purchases of estates are made in other countries, from the known and acknowledged proprietors, – that there were few such purchases made for which the full value was not paid, – measuring that

value by the only standard by which it could be measured, the return it was capable of yielding for the capital invested in it.

The missionaries were the first purchasers of land, and they established a standard which afterwards regulated its purchase. Their rule was to pay 2s. 6d. an acre for land which they considered as of any value, from being arable; and whoever knows any thing of New Zealand knows, that, almost in every district, the proportion of good is very small, when compared with the worthless land; and much worthless land was generally included with a small proportion of good. More than one of these missionaries, whose characters have been so cruelly attacked, and whose proprietary rights have been so unjustly interfered with, had actually been offered, and had refused, grants of Crown land in New South Wales. Had they been chaplains in that colony, instead of missionaries in New Zealand, their sons and daughters would have been entitled, by the Land Regulations of New South Wales, to grants of 1920 and 1280 acres respectively. Their land purchases were a necessity. It was the only means of establishing their children in the land of their birth, and of their future home. At the age of fifteen, each missionary's child ceased to receive support from the mission, and the society gave £50 towards the purchase of land as a provision for each child. They all, besides, had cattle, for which it was necessary to provide pasture. These cattle had been given them by the founder of the mission, the Rev. Mr. Marsden, chaplain of the colony of New South Wales, who has been called the St. Augustine of New Zealand. I heard this title bestowed upon him by the late Bishop of Australia, Dr. Broughton, in the Legislative Council of New South Wales, – when the New Zealand question was under discussion, – and, indeed, the circumstances which led to the conversion of Great Britain and of New Zealand to Christianity, were wonderfully alike. Augustine was struck by the ingenuous and manly countenances of two British youths whom he found sitting in the slave market of Rome. He took them to his home and provided for them, and finally accompanied them to their native country, to introduce into that then savage region the Gospel of salvation. Mr. Marsden found wandering in the streets of Sydney some Maori youths who had been taken on board some whaling or sealing vessel at the Bay of Islands. We can feel no surprise that he should have been struck, as St. Augustine in his case was, with their intelligent and manly aspect – more especially when contrasted with that of the abori-

gines of New Holland, whom he was accustomed to see, and upon whom missionary effort has been exerted in vain. He was struck with the same impulse as Augustine was. Doubtless, in both cases, it was a Divine impulse. He took the Maori youths home and took care of them; and, as soon as he could get leave from the Governor of the colony, he accompanied them to the Bay of Islands. On his return from New Zealand to Sydney, he lost no time in appealing to the Church Missionary Society, in favour of the New Zealanders. He continued his visits to the Island, and long before any missionary was settled, and at a time when no ships dared to approach the coast without boarding nets to protect the crew from the warlike inhabitants, he had penetrated to all the Northern parts of New Zealand. There are itineraries given in the missionary records of no fewer, I think, than nine visits to these Islands. Well, sir, Mr. Marsden's appeal to the Church Missionary Society found a response in the bosoms of its directors. A mission was at length begun. The first missionary catechists arrived in Sydney, but remained long there before a vessel could be found to encounter the risk of taking them to the Bay of Islands – where it was reported war was raging, as, indeed, it generally was in those days.

Now, sir, it is a remarkable fact that Mr. Marsden's character was as much misrepresented in his day as have been the characters of the missionaries who were the pioneers of civilization as well as the introducers of Christianity into this country. I was myself told, more than thirty years ago, that Mr. Marsden made a good thing of his New Zealand mission – that he had a herd of cattle down there, and carried on a profitable trade in flax. I was told this at Sydney by persons who would not have told a wilful untruth for the world. It was not until after my arrival in New Zealand, that I found how the case stood. Mr. Marsden had made a gift, from his own herds, of a number of cows to the Church Missionary Society, the produce of which was to be given to the missionaries' children; each child being, at its birth, entitled to a female calf. The flax was disposed of on behalf of the Church Missionary Society in aid of the expenses of the mission. Mr. Marsden was never benefited, nor even sought to be benefited, to the amount of a farthing by his apostolic labours. He has a more enduring reward.

Such is the origin of the land purchases of the missionaries.

Captain FitzRoy found it impossible, with the limited surveying staff at his command, to have the lands measured in time to save the landholders' from great distress, by putting them in

possession of their rights; – the rights which had been so injuriously interfered with and unsettled by the Land Claims Ordinance. He therefore issued grants reciting the quantity of land specified in the Commissioners' reports, as corresponding to the sliding scale of the schedule – "more or less," as might be found included in the boundaries specified by the Commissioners as having been described by the Natives; and he published a notice inviting parties to have their lands surveyed by private surveyors, to be licensed by the Surveyor General for that purpose, promising to pay for those surveys at the rate of £3 per lineal mile, in lieu of a survey by the official staff.

In the meantime, however, the pernicious measures of Sir George Gipps, had been working their baneful effects. It appeared that a native of New Zealand, who had been in the gallery of the Legislative Council, in Sydney, when the proceedings to which I have alluded took place, had arrived in Hokianga with the intelligence that the Queen's Governors in Sydney were consulting and making arrangements for the disposal of land in New Zealand, – that he himself had been present at their Council, and witnessed their proceedings. It is impossible to exaggerate the excitement and indignation which this intelligence created. The missionaries were immediately applied to for information whether the intelligence were correct, and they could not deny that it was correct, so far as their lands were concerned:. but they told the natives that it was not intended to interfere with the lands of the natives. But how were the natives to feel any assurance of this? "If," said they, "the Queen treats her own children so, what are we to expect?" One missionary was told by a native chief, that if they were betrayed, it was by their trust in the representations of the missionaries that they had been betrayed, and that the missionaries should be the first to feel the effects of their. vengeance. The most respectable of the old chiefs of Heke's party came to me with a message, requesting that I would not allow myself to be disturbed when this storm (Marangai) proceeded forth from the Governor, – that they who sold me the land, would maintain me in possession of the land. I asked him to what he referred. He replied by asking if it was not true that they were going to take my land? What could I answer? I had then in my possession the official notification that it was the intention of the Government "to reserve the greater part of the site called Victoria for a public township." This, sir, was the very land which I had purchased – some of it at an expense of 30s. an acre, on which to build my official residence, after the Government had been applied to, and refused to buy land for that purpose. I replied to him that these people

had indeed said so, but that the Queen had not sanctioned it, and I believed never would; and that therefore I gave myself no uneasiness, and begged him to give himself none.

It might have been expected, that so numerous an arrival of strangers as accompanied and followed the first Governor, could not have taken place without including some persons who were not likely to set an example of pure morals. Vice and immorality, which had been obliged to hide their heads amongst the Maories, through the influence of the missionaries, now began to be openly exhibited and gloried in. The precepts of the New Testament were no longer the exclusive standard by which the character of a gentleman was to be measured. It was not long before a conspiracy was got up to cut off in one night the whole of the missionaries and white settlers, saving only the women and children for slaves. A native, named Piripi Korongohi, went by night from village to village, to obtain associates, in order to put in force this diabolical scheme, and had boasted that in so many weeks he should have a white wife. The intelligence reached the missionaries, who for the first time trembled for the safety of their families. No time was lost in assembling the friendly natives. Piripi Korongohi and his friends, attended the meeting, and heard without denial or explanation the charges which were made against them. But the friends of the missionaries had mustered in such force, and so loudly denounced the proposers of such a crime, that nothing more was heard of it, and all apprehension of such an occurrence soon ceased.

But the best friends of the missionaries had not recovered their confidence in the Government, They were persuaded that the Government was only waiting till it was strong enough to place them in the same situation as the aborigines of New Holland, by depriving them of their land; and Heke, an ambitious and able man, used all his influence to induce his countrymen to take arms for the recovery of their independence. He told tion, that the Flag at Kororareka was the symbol of their degrada-them and that their land was gone. Twice he cut it down, and to this day the flagstaff lies prostrate. I need not enter into the events of that war, which occurred when I myself was absent from New Zealand. But I hope some abler pen than mine will record the chivalry of the natives (as well as of our own troops) – their gallant bearing throughout – their avoidance of all stratagem, and abstinence from availing themselves of unequal advantages; – the manner in which they cherished and protected their old friends, even when fighting against the countrymen of those friends; assisting them in carrying off their property, in order to place it in security, on board ship, before the firing of Korora-

reka; – all proving that it was a war of principle, incited by the unrighteous conduct of the Government.

It is not my intention to enter at any length into the crusade of Sir George Grey against "Archdeacon Williams and the missionary land claimants." But to those who know not the real character of Sir George Grey – and may be startled (as well they may) at the mention of such incredible doings – it may be necessary to mention, that the influence of the New Zealand Company had removed Captain FitzRoy; and in a debate in the House of Commons, extending over three nights, till long after midnight, had proved that so far from a Colonial Governor being able to stand against it, the influence of that Company was sufficient to shake even the Ministry of Sir Robert Peel. The parliamentary papers shew how this influence was employed to prevent the settlers who purchased land before the foundation of the colony, from being placed in a better position than those who purchased lands from the New Zealand Company. 13 The Company said that the lands of their settlers, for which they had paid to the Company 20s. an acre, were prevented from attaining their proper value by so much land in the North going into the hands of individuals, at so much cheaper a rate – according to the Wakefield theory that value can be given to land by restricting its occupation.

I was in London when Capt, Fitzroy was recalled, and was told in the Colonial Office that Capt. Grey was to be appointed before it became publicly known. I could not refrain from expressing my gratification, that the affairs of New Zealand were at last to be entrusted to a man of experience. But it was not long after my return to New Zealand, before Governor Grey excited my unutterable astonishment, by telling me that the purchase of land by the missionaries had been the cause of the war. I did not fail on that occasion to tell Governor Grey, that nothing could be more opposite to the truth, than the view he had expressed. On a future occasion, he said to me on board of one of H. M. ships, at the Bay of Islands: – "I want to know how it is that in the late war, the Wesleyan and Roman Catholic Natives were with us, and the Church Mission Natives against us." I told him that I had heard the same observation before; that I had mentioned it to Archdeacon Williams, who replied that it was not so. I again went to Archdeacon Williams and at his request I waited on Sir George Grey, with a message, that

if the Governor would allow him the opportunity, either then at the Bay of Islands, or afterwards at Auckland, he would be most happy to wait upon him (the Governor) and that he would undertake to prove that there were no grounds for the erroneous impressions he had received on this point, as well as on other matters respecting which he had received impressions unfavourable to the missionaries. Sir George Grey replied that he could not enter into such discussions, and that he had not authorised me to communicate with Archdeacon Williams on the subject; which was very true, for knowing the importance to the peace of the country, of a good understanding between the Governor and the missionaries, I had gone beyond what strict etiquette would justify. The result of this attempt to bring about so important an object, was a conviction on my mind, that Sir George Grey did not wish to know the truth. I went to him no more, I was thenceforward done with Sir George Grey.

The interview at which Sir G. Grey expressed the opinion before referred to, must have taken place within a few days after he had sent off his despatch, warning the Government that the missionaries could not be put into possession of their lands, "without a large expenditure of blood and treasure," – lands of which their families never had been out of possession, even at the time that the war was raging against the government. The titles to these lands had been investigated by Commissioners sworn to report "according to the justice and good conscience of the Case," and had all been reported upon, on the testimony of the Native Chiefs who sold them, as having been validly acquired under equitable conditions. Grants had been issued, in the name of the Queen and under the seal of the Colony, confirming and registering those titles; though the low state of the funds of the Colony had not allowed Governor Fitzroy to complete the necessary surveys to identify them. Under such circumstances, would it be believed, unless it could be proved by official documents printed in the Parliamentary papers, that Governor Grey sent officers on a mission through the districts where the lands of the missionaries were situated, to hear the complaints which (he said) "would probably be made to them" respecting these lands, and to inform the Natives that it was the Governors belief that the purchase of them was illegal, and that he intended to take back a part of the land, and to give it to the Natives, from whom it had been purchased fifteen years before. 14 The possession of these lands

never had been disputed, and though the Natives were told what was the Governor's intentions, it does not appear from the report of the officers that any one had made any complaints. 15

Governor Grey selected one of the grants issued by his predecessor, and proceeded against the owner to recover it by writ of scire facias. The grant in question had a technical defect, from which the majority were free, but it was nevertheless sustained as valid, by the decision of both Judges – Chief-Justice Martin and Mr. Chapman – Sir George Grey appealed from their decision to the Privy Council, where the case was undefended, and the decision of the Judges reversed upon the technical point.

Then came the Ordinance to Quiet Titles, by which parties were invited to give up the lands which they had purchased sixteen years before, which had been confirmed to them by Captain Fitzroy's grants, after the reports of the sworn Commissioners; and to receive back, under what Sir George Grey called a "valid title," a part of their lands after he should have first selected from them such lands as the natives may now justly claim, or which may be required for the use of the Natives, or for public purposes."

It is impossible to enter into the detail of these transactions without a feeling of irrepressible disgust and loathing.

Sir George Grey gave Tamati Waka, the leader of the Maories who fought on the side of the British, as his authority for stating that the purchases of lands by the missionaries had been the cause of the war. Tamati Waka, in a letter to Archdeacon Williams, indignantly denied the charge. Sir George Grey also sent two officers of the Government to hear the complaints of the "suffering and complaining natives," as he called them in his despatch to the Secretary of State; but the report of these officers does not mention a single complaint, although they duly delivered the Governor's message. Finally, he brought in his "ordinance for Quieting Titles" which gave the "suffering and complaining natives" from 25th August, 1849, till 1st January, 1853, to make their complaints and receive compensation at the hands of the purchasers of their lands; but this attempt to make them aware of their sufferings was equally unsuccessful

with his other attempt; only one complaint having been lodged, and that one complaint having been declared by the party in whose name it was made to be a forgery. No false accuser was ever more signally defeated than Sir George Grey. His accusations for a time placed under a cloud, Archdeacon Henry Williams, the father of the Church of England Mission and the chief agent, under Divine Providence, in introducing Christianity and Civilization amongst the New Zealanders, and in preparing their minds for the peaceable occupation of their country by British Colonists. Mr. Williams was, after his labours of a quarter of a century, removed from his connexion with the Church Missionary Society; but he was eventually honorably restored to his position at the head of the Mission. Sir George Grey also has his reward, as Governor of the Cape Colony.

Well, Sir, I have got through the painful task of reviewing the conduct of the Government, in a general sense. I have shown that while one of the Queen's Governors was asserting that New Zealand was not an Independent State, and founding a legislative measure affecting the common-law rights of Her Majesty's subjects upon that assumption, one of the Queen's principal Secretaries of State was publishing to the world the proofs that New Zealand had been so recognized in numerous instances, both by the Legislature and by the Crown of England. We have seen Governor after Governor annulling the obligation of contracts entered into by his predecessor – undoing Acts which had been done in the name of the Queen and under the Great Seal of the Colony: – one ordinance recognizing and affirming rights – a subsequent ordinance annulling the rights recognized and affirmed by the preceding ordinance. We have seen war and bloodshed as the fruits of injustice. We have seen what we call a savage people making war against the Queen's forces, and protecting the Queen's subjects who had acquired from them rights, of which the Queen's Government were endeavouring to dispossess them. We, the first settlers in New Zealand, have suffered all this persecution, and all the losses consequent upon it, for no fault of our own – from what you would call an Irresponsible Government and a nominee Legislature. And we have lived to see such a Bill as this brought into a Legislature elected by the people, and read a first time with the concurrence of a "Responsible Government" – a Bill which exceeds, in its bad faith and in its penal consequences, all that we have previously suffered.

I will now go into individual cases. I will shew you how unjust was the conduct of the Government to the original settlers, even had it been lawful, – -I mean, supposing their titles

had been void in law, without the consent of the Crown; which they undoubtedly would have been, had this country been taken possession of, as were America and Australia, by what was called right of discovery.

I have reason to suppose that the majority of my hearers are believers in the Wakefield theory of Colonization, which I hold to be a tissue of fallacies. It may be a proof of the surpassing ingenuity of the author of the modern theory of Colonization, that few even of the most able men have, without practical experience, been able to detect the fallacies of that theory; but it is no proof of its truth. Such questions are not solved by theories and speculations, but by the knowledge and experience of facts. I think, Sir, from my knowledge of facts, and my experience of thirty years of Colonial life, I am entitled, if not to speak with some authority, at least to hold an independent opinion. Sir, long before this theory was heard of, I had filled the offices of Collector of Land Revenue and member of the Land Board of New South Wales. For nearly four years I took a part in the administration of the Crown Lands in that Colony; and I believe I understood the question of colonization then as well as I do now. I had given for two years my undivided attention to the subject. My opinions were asked for, and valued by, the Governor of New South Wales, and subsequently by the present Earl Grey, when, as Lord Howick, he was Under Secretary of State for the Colonies. I had, besides, the experience of an actual settler, having received a grant of 2000 acres, upon which I cultivated a farm and possessed cattle and sheep.

From the first, I knew that the Wakefield theory would work the ruin of those who trusted in it; and I witnessed, with profound regret, the arrival of hundreds of persons who left what was, or might have been, a quiet competence in England, to make shipwreck of their fortunes on the shores of Cook's Straits. I think that I may challenge the proof of a single instance in which a New Zealand Company's settler succeeded otherwise than by a departure from the principles of the Wakefield theory. I am speaking of course of those who arrived with capital to invest in the pursuits of the settler, and who depended upon hired labour to carry out their undertakings. The project of planting an English society, with all its gradations of social and industrial condition, in the wilderness of a new country, has always appeared to me an exact counterpart of the experiment of a celebrated French Physiologist of the last century. DE CANDOLLE maintained that the roots of a tree were of the same structure as the branches; that the circumstance of the one growing in the air, and the other in the earth, were acci-

dental; that, if buried in the earth, the branches would send forth fibres; and that of elevated in the air, the roots would send forth leaves, lie was not content with the theory, but reduced it to experiment, and he said, with great simplicity, that, malheureusement, the tree died, and he was unable to demonstrate the truth of his theory by that experiment.

The New Zealand Company's settlers were not long in finding that, in their new condition, the relations of master and servant were reversed – that capital had lost its ascendancy, and labour its subserviency – that the Hand could provide for itself better without the Head, than the Head without the Hand – that their only hope of success was to abandon to those whose chief capital was their labour, the attempt to convert the Forest into a fruitful field – and to avail themselves of the natural productions of the earth, which could be obtained with little or no labour, by sending out flocks and herds upon the pastures of the wilderness.

In new countries it is not Land but Labour that is valuable; nor can a value be given to land (according to the principles of the Wakefield theory) by restricting its occupation, or by maintaining a proportion between the land occupied and the people who are to occupy it. Such a thing is impossible, unless the labourers should be reduced to slaves; and unless all countries of the world, where there are unoccupied lands, should join in restricting their occupation; – and should be able to enforce that restriction, which experience has proved to be impossible. Capital is as necessary to promote the prosperity of a young colony, as labour. They are indispensable to each other; and unless a person with capital can find a sufficient extent of land to invest his capital in pastoral pursuits, he will not become a settler. These observations do not apply to lands in the vicinity of towns, which are a monopoly, nor to settlers with small capital and families capable of engaging in the labours of agriculture; but, in a general sense, I consider them to be incontrovertible. The only standard by which the value of land, like all other exchangeable values, can be estimated, is the return which it is capable of yielding from the capital invested in it.

With these general observations, the truth of which has been fixed in my mind by all my knowledge and experience, I proceed to view, in an equitable sense, the treatment which the original Settlers have received from the Government. I mean on the supposition that the Government legally possessed the power which they assumed to declare the lands purchased, while New Zealand was independent, to be demesne land of the Crown. Even on that supposition, I believe I shall make it appear, that the treatment of the first settlers would have been most unjust. The

Land Claims Ordinances did not, excepting under special circumstances, allow to an individual a larger grant than 2560 acres, which was the limit of the extent to which lands were granted gratuitously to settlers in New South Wales. But, in New South Wales, the extent of land over which a choice could be made was immense. No one needed to choose any but the best land, and it often happened that the selection of a grant would give the grantee the virtual property; in a much greater extent of land than was included in his grant, owing to the circumstance of the adjoining land being of too inferior a character for a settler, having so wide a range of choice, to select. This circumstance – that is, the quality of the land – was never taken into account, either in framing the clauses of the Land Claims Ordinances, or in the reports of the Commissioners: and yet, as a general rule, the Natives retained the best lands in their own possession, and the lands purchased by the settlers were of a very inferior quality: – add to this, that the first settlers in colonies have always been treated with more liberality and consideration, than those who arrived in the country after the first difficulties of a settlement had been overcome.

Shortly before I was appointed to New Zealand, Captain Stirling, (now Admirable Sir James Stirling,) was appointed to Western Australia. The Government gave him a grant in that country of 100,000 acres of the best land he could select. This was a conditional grant – -the conditions being such as it became impossible for him to fulfil; and it was afterwards exchanged for an unconditional grant of either one-third or two-thirds of the extent – I forget which. The first settlers in that Colony, were allowed a free grant from the Crown of 40 acres for every sum of £3 which they expended in providing for the passage to the Colony of themselves, their families, and servants – in laying in provisions, stores, implements, and live stock – -and in freight of the same, as well as for the capital remaining to be invested on their arrival.

I ask hon. members to compare the conduct of the Government towards Sir James Stirling with the treatment which I received. Remembering the odium which has been cast upon all the original settlers in this country, I thought it right to shew the Select Committee, and to furnish them with copies of letters which were addressed to me by Sir G. Gipps, on notifying the abolition of my office of British Resident; in which he stated how much pleasure it would give him to attend to Lord Glenelg's recommendation (which he afterwards told me amounted to a command) to provide me, when it should be in his power, with a suitable appointment under his Government; and in the meantime ex-

pressing "his sense of the zeal and integrity with which I had discharged the duties of my office." Lord Stanley afterwards told me, in England, that there was no record in the Colonial Office of any thing which impugned my zeal and integrity as a public servant, and directed his Under Secretary to write me to that effect, and to add, that Lord Stanley would be happy to entertain my application for any office which might be deemed suitable for me. So terminated my connexion with the Colonial Service, to which I had given the fifteen best years of my life – always in situations of an important and confidential character. My office in New Zealand had been so little remunerative, that, on an average of the seven years which I held it, my domestic expenditure exceeded my official income by one-fourth of its amount.

On its being notified to me that my office would shortly cease, I purchased a tract of land at Wangarei, upon which I intended to disembark one of two cargoes of sheep and cattle which I brought to New Zealand, soon after I ceased to be British Resident, – but both of which I landed at the Bay of Islands in consequence of the interference of the Government with respect to Wangarei. This tract of land I estimated at 40,000 acres: and since I gave my evidence before that Committee, I have had the curiosity to estimate the extent of land to which the cattle, sheep, servants, agricultural implements, &c, which I imported, and the money I otherwise invested, would have entitled me, according to the regulations of the Colony of Western Australia, where property was much more secure than it was in New Zealand; and I found that it amounted to upwards of 56,000 acres. As a private settler in Western Australia, I should have been entitled to choose that quantity of Crown land in consideration of such expenditure. I sent, sir, a copy of this estimate to the Colonial Treasurer, and stated my readiness to produce reasonable vouchers for all the items of my expenditure. I found that first and last, I had brought, besides the members of my own family, forty-two persons to this country at my exclusive cost – besides five others at the joint expense of two other persons and myself. Among them were an experienced overseer of agriculture, stockmen, shepherds, and mechanics of all kinds. Surely, sir, this is evidence of my having become a bona fide settler, with the command of ample means to make use of the land I had acquired?

I ask, then, if the Government was not bound, in justice, – not to give me land to that extent, – for I did not ask any land from the Government; but to abstain from despoiling me of the land which was already mine – which I had paid for with my own

money – my title to which never had been disputed by any one? It is true, sir, that this is a large tract of land. But when was it ever heard of, that a man was despoiled of his property, because it was thought to be too large? Such things may have occurred in Turkey or in Egypt, – scarcely there: but such a thing has never occurred in any country where civilization was sufficiently advanced to give to property the protection of law. Consider for a moment to what such a principle would lead. The man of 10 acres would envy him of 100; the man of 100 acres would think the possessor of 1000, had too much; the security of all property on which civilization depends, would be at an end. The only principle is, for the Government to afford its protection to all property, and to protect every individual in the enjoyment of his rights, however extensive, or however limited they may be. This is the proper function of the Executive Government. It is for the judicial tribunals to settle disputed titles, by the law of the land. I know a gentleman in New South Wales, (I have known him intimately for 30 years,) who received a grant in conjunction with another person, of 96,000 acres of land, which I am told is now worth £10 an acre. What would be said of any attempt to deprive him of his property, on the ground of its extent or value? And yet his land was the free gift of the Crown; whereas mine never did belong to the Crown, but was purchased, with my own money, from those who were solemnly recognized by the Crown as its owners.

It was such precedents as these that the Government was bound in equity to have looked, even had the land been the property of the Crown to bestow; and not to the dogmas of any scheme of systematic colonization which came into existence subsequently to these rights, whether legal or equitable, having been acquired. My land at the Bay of Islands may extend to 7000 or 8000 acres. It has never been measured. Of this, from 800 to 1000 may be arable; the greatest part of the remainder being absolutely worthless. In 1847, Sir George Grey came to the Bay of Islands, in search of a location for a battalion of Pensioners. He came to my house to speak to me respecting my land, which Colonel Wynyard, who had for some time lived upon it, recommended to his attention for that purpose. The offers which I made, both he and the gentlemen who accompanied him said were extremely liberal. I said, if Sir G. Grey would settle a battalion of Pensioners on my land, or partly on my land and partly on land adjoining it, and fix the public establishments there, as best suited in the judgment of Colonel Wynyard for a Public Township for the Bay; I would give up to the Government

gratuitously one half of all my land, with an equal share of advantages of water frontage and arable land; or, on the same conditions, I would give the whole of it, with the exception of 1000 acres, at 2s. 6d. an acre. At the Governor's request I made this offer in writing, and my letter is, I have no doubt, on record in the office of the Colonial Secretary.

With regard to my land at Wangarei, of which, or of any compensation for which, the present Bill would, so far as its validity extends, absolutely deprive me. I beg to state that I offered it also to the Government in England, on the Government's agreeing to refund my proved expenditure in acquiring it, with the interest which would have accrued upon it to the day of payment. This was done under the following circumstances: – I was exceedingly urgent with the Government, not to persevere in the policy they were pursuing towards this country, – the same policy which the Bishop and the Chief Justice, and most of the inhabitants of Auckland, subsequently petitioned might not be carried into effect, and which Sir George Grey did not venture to carry into effect.

In the course of my communications with the Colonial Office, I could not but painfully feel that my testimony did not receive the consideration to which it was entitled, from my private interests being so deeply involved in this question. As a last resource, and when I was on the point of leaving England, I wrote to Lord Stanley, stating this my impression; and, as all my land at the Bay of Islands was then confirmed by grant, under the seal of the colony, I made a tender of my land at Wangarei on the terms I have stated, and then appealed to the Government to give to my testimony, that, as a disinterested witness, all the weight to which my experience in the colony entitled it. My letter was published in the Parliamentary papers, and sent out to Sir George Grey, but he never took any notice of it. Surely, had I been deprived of my proprietary rights by Act of Parliament, I could not have been offered less favorable terms than these? Sir George Grey, however, preferred seizing upon my land without any recognition of my rights.

In bringing before the Provincial Council, a proposition to address the Queen praying her to direct that the ordinances which are repugnant to the laws of England, and therefore "pretended ordinances, having no legal force or validity," should be expunged from the colonial statute book. I thought it necessary to open the eyes of the Council and of the public to the real character of Sir George Grey and of his proceedings. Any one of the numerous charges which I

then publicly preferred against him, and none of which his best friends, after a fortnight's adjournment of the debate, ventured to deny, would have been sufficient, in the days when I first knew the Colonial Office, to have rendered him incapable of ever again serving the Crown. But times have changed since then. His parting remembrance to me was to send for a native of Wangarei, and tell him that he was to go with Mr. Johnston, who was going to Wangarei to purchase the land which was mine. The native came to me, and gave me the following account of the interview: – "I was led," said he, "into the presence of the Governor, who told me I was to go with Mr. Johnston, who was going to Wangarei to purchase the land. I said to him, 'O Governor, the men of Wangarei will not sell that land to you, for they sold it many years ago to Mr. Busby.' He said he intended to pay you for the land, in proportion as you had paid for it – if much, much; if little, little. I then replied, – 'the men of Wangarei will not allow any white man to live on that land without the leave of their father, (meaning myself.) The Governor then said, 'are you a gentleman?' 'O Mr. Busby, great was my boldness in the presence of the Governor when he asked me if I were a gentleman; and I said to him, 'amongst my own people I am a gentleman, although I may appear a slave in your sight. But if you stood in the presence of my people, divested of your Governor's clothes, perhaps you would appear as little a gentleman there as I do here.' He then said I was a child; the elders would listen to Mr. Johnston: and I replied, 'O Governor, I now perceive you are a robber of land," How humiliating a position for a British Governor, the representative of the Majesty of England! Can any one doubt whether of the two was the gentleman – the British Governor who attempted to corrupt the integrity of the simple-minded native, – or the simple-minded native, who indignantly repelled the attempt of the British Governor to corrupt him?

The first person who received money from the Government for my land no sooner reached Wangarei, than he was forced by the other natives to bring it back to the Government. He was again prevailed upon to take the money (£200,) and he was then deprived of the whole of it by the rest of the natives. Though his signature was to my title deed, he was a very inconsiderable person amongst them who sold me the land. At this time I wrote to the Government, entreating them not to corrupt the natives who had already divested themselves in my favour of all title to the land, and who could not convey to the Government a title they had ceased to possess, but to try the legal question between

the Government and myself in the Supreme Court. The Government declined this proposition. I then offered to convey my title, which had never been disputed by any one, to the Government on their agreeing to refer to the decision of the Chief Justice, what amount of money would be an equitable compensation, under all the circumstances, for my having procured the tract of land in question, and having conveyed it to the government. This proposition was also met by a refusal. The Government continued their efforts to corrupt the natives; of whose integrity it is a remarkable proof that it was eighteen months after the principal chief first told the Commissioner that the land was mine, and refused to treat with him respecting it, that that chief told me that he "had then, for the first time, consented to take money for my land." These were the words he used, and he recapitulated at length the arguments by which his conscientious objections had been overcome.

The Government, in this way, worse than wasted between £3000 and. £4000 of the public money. One is lost in astonishment at the fatuity of men in such a position, as that of the principal officers of Government, in supposing that men could convey a second time rights of which they had previously divested themselves; and that they could procure for the Government a title by forcing money upon men who told them the title was not theirs to convey. The waste of money was but one part of the evil. A large assemblage of armed natives took place soon after at Kororareka, headed by one of the most troublesome of those who commenced the war on the first occasion. Their object was to obtain from the settlers there a second payment for the land; to which they said they were as well entitled as the people of Wangarei. Nothing prevented a second outbreak but the influence of Pene Taui, the most influential chief of Heke's party, who had been gained over to the Government by having been employed, with his people, to make a road from the harbour to his village.

This, Sir, is the history of my land at Wangarei and of the interference of the Government with it. It has been treated as a high crime that I refused to lay before the first Commissioners the evidence of my purchase. This is not the case. I paid fees to a considerable amount, and five witnesses had been examined, and the other necessary witnesses sent for, when I received a letter from the Commissioners urging that the witnesses might be brought forward and the investigation concluded, as they were instructed to report on the case without delay. It leaked

out that the motive to this unusual haste was the intention of the Governor, as soon as the proof of my title was completed, to invite Capt. Wakefield to settle his Nelson colony on my land. I replied to the Commissioners that the witnesses had arrived, and had been sent back; that I did not intend to proceed further with the proofs – alleging the cause I have stated. They of course reported against a grant being made to me, and I declared that I was quite satisfied to hold my land by the Native title. I reported the case to Lord Stanley, who directed that I should be informed, that he did not see how the Commissioners could have done otherwise; an observation in which I perfectly concurred. But few people, I should suppose, will understand how this report was to deprive me of my property.

With respect to my land at Wangarei, I petitioned this House to interfere, in order that no more of it should be sold till the question, in whom the legal title is vested, should be settled. The answer to this Petition, I suppose I must take in the recommendation of the Report and in the provision of the Bill, that claims formerly disallowed by a Commissioner are not to be heard by the Commissioners who are to be appointed under this new Bill.

I made another application to the Governor with respect to my land at the Bay of Islands, – that the Government should complete the surveys of the land for which I had taken out the grants in 1846, before all the parties who sold me the land, and could point out the boundaries, should have become extinct. His Excellency's reply informed me that he intended to apply to this Assembly for powers to appoint a commission to settle Outstanding Land Claims, but I do not see how my application could be dealt with under this Bill. None of my grants are of a character which would be voidable for any of the defects enumerated; – but they are not surveyed. I observe that when surveys are to be made (and it is made compulsory that surveys shall be made), and fresh grants issued, one shilling per acre is to be charged for the new grant, and one shilling and sixpence an acre for the survey – besides a variety of fees of greater or less amount. I have already shewn to the House that I offered the greater part of my land to Sir George Grey at two shillings and sixpence an acre; and it will thus be seen that if that land were to be dealt with under this Bill, it would amount to a virtual confiscation. No allegation of any crime or default on my part is made in justification of so extreme a measure. The Government, after having sent a Government Surveyor to measure my land, recalled him before the survey was commenced; then by public notice offered £3 per lineal mile as

an equivalent for the survey by a Government Surveyor, if effected by a licensed surveyor at my expense. A small part of my land was so surveyed, and the survey accepted by the Surveyor-General. But the £3 per mile, though applied for, was never received. The Government has not to this day surveyed the land, and this Bill would make the Government take advantage of its own wrong, and punish me for its default.

There are other cases of a similar character; I mean cases in which the land is so poor as not to be worth the expenses and fees which this Bill would entail upon it. The first missionary catechist who landed in this country, in the year 1814, purchased a run for his children's cattle adjoining his Mission Station. The good land in that neighbourhood was extremely limited, till the Natives kept in their own hands what good land there was. This cattle run was lately, in conformity with his will, surveyed and divided amongst his nine sons and daughters, all born in this country, and all long since grown to men and women. I know the land well, and I do not believe there is an acre in it that could be truly called good land. I have seen three of the sons attempting to cultivate the best portions of it for the last ten or twelve years, with the greatest possible industry and perseverance; and I have seen them abandon their houses and barns, and all their enclosures and improvements, simply because the land was so poor that, with all their labour, they could not get a living out of it. Now, I have one thing to ask with respect to this land – that if your Bill should be found to intefere with it, you will give this family the option of receiving back the money which was originally paid for it – together with the interest that would have accrued upon it, if that money had been invested at the Colonial rate of interest? I put this proposition to you as a test of the honesty of your measures, in all cases – namely, that if you will insist upon interfering with proprietary rights, those parties whose rights are interfered with, should have the option of abandoning the land altogether to the Government and receiving back their money, with interest, as I have stated.

There are also cases of the most grievous oppression, for the redress of which this Bill makes no provision. In conjunction with two other persons, I sunk £3,500 in the erection of a sawmill and other buildings, and expenses connected with an establishment for carrying on the timber trade. At the close of the war, a native came to tell me that a large party of sawyers were stealing my timber – that nineteen of them were at work upon it. The Native Lands Ordinance took away from me the power

of interfering with them. I represented the case to Sir George Grey, and requested him to put that ordinance in force against these persons, who were robbers of the timber, whether the land belonged to me or to the Government. Sir George Grey coolly replied to me, that it appeared I had no legal claim to the land in question, and interfered no further. The plunder of my property went on until the land has been, I believe, pretty well stript of the timber, which was the only thing that gave it value.

I know a more cruel case even than this – that of a man who came to this country upwards of twenty years ago, whom I have known all that time as the exemplary father of a family, which, under many discouragements, he has brought up as a Christian family should be brought up. Such families are the strength and honour of all communities. He has struggled all that time, with the difficulties which are inseparable from a first settlement in such a country as this. He had purchased a tract of land containing spars suitable for the navy. This was the only property to which he could look for a return for his years of trial. The claim was examined by the Commissioners and reported on as valid; but by an unfortunate mistake, which did not originate with him, instead of receiving a grant for 1900 acres, at the time Governor FitzRoy's Grants were issued, he received a credit in the Treasury to purchase land to that amount. Of this Mr. White did not avail himself, never having had the slightest intention of giving up his land; and the credit remains in the Treasury to this day. At the time that Sir George Grey was trying to stir up the Natives in the North against the first land purchasers, a complaint was made to him by a Native of that district that Mr. White was cutting timber upon his property. The accusation was as void of truth as was the accusation which Ahab's wife caused to be made against Naboth in order to get possession of his vineyard. Mr. White had not, for a considerable time, been cutting timber any where. Governor Grey despatched a Commissioner to investigate this charge, which no attempt was made to establish. To this Commissioner, Mr. White produced the evidence of his title having been examined and ratified; of his having received credit for it in the Treasury, and of his having paid the property tax upon it. The Commissioner then recommended Mr. White to avail himself of the new regulations, and apply for a license to cut timber upon the adjoining land which had been given up to the Government, and to include his own in the license, which would protect his property until the land could be surveyed and the grant made. Mr. White acted upon this advice, paid £5, and

obtained No. 1 of the printed certificates of license, which were issued under those regulations. When Sir G. Grey was again at the Bay of Islands, a Native of Hokianga district – but one who never had had any property in Mr. White's land – -asked him if Mr. White had received a pukapuka (understood to mean a grant) for the land in question. Sir George Grey replied he had not. The Native asked for leave to cut timber upon it. The Governor desired Major Bridge, the Resident Magistrate, to give him a written authority. This native sublet his authority to other natives, on condition that they should pay him one shilling per 100 feet for timber; and the land was soon covered with parties cutting down the valuable spars. Mr. White complained to the Resident Magistrate, producing his printed license, which was in force for twelve months. The Resident Magistrate wisely decided that, as the authority given by direction of the Governor was of later date than the license, it superseded the license, and he refused to interfere. The Governor was applied to; and replied that he could not interfere till the land was measured. Mr. White employed a surveyor to measure the land, and the natives who had sold him the land accompanied him to the ground to shew the surveyor the boundaries. The natives who were cutting the timber would not allow them to proceed. The whole night was spent in bitter altercation between the parties – old grievances were raked up – and both parties were ready for violence. In the morning, the natives who had sold the land to Mr. White, told him it would be necessary to fight their way through, but they were ready to proceed, if he would say the word. The men who were cutting the timber said, – "We have never denied, Mr. White, that the land is yours. Who disputes it? But you must look to your countrymen, not to us." Tamati Waka, who was on the ground, told Mr. White that the words which were uttered were not empty words – that bloodshed was intended – and Mr. White declined to have the land measured at the price of blood. The whole of the contract spars were carried off – a property for which Mr. White would not at the time have taken £10,000; and what compensation would your Bill give him? Why, it would put him in the possession of the land at a charge of 2s. 6d. an acre, besides other fees, – land which is not worth one shilling an acre after being stripped of the timber which gave it value!

Honorable members from the South can, I believe, have little idea of the cruelty with which some persons who bought land from the natives under the authority of Governor Fitzroy's waiver of the rights of preemption, have been treated. I myself know

but little of them; but the few cases which have come to my knowledge, would not be believed – they would he incredible, if the truth was not forced upon us by the authority of official documents. I do not feel qualified to enter into a general view of these cases, but I must beg the indulgence of the House in referring to a case which only came to my knowledge during my present visit to Auckland. My landlady brought me some papers, which I found to relate to a purchase of land, on a pre-emption certificate, by her late husband. There was the copy of a letter to the Governor, written by her husband from his deathbed. It stated that his hours were numbered, and it implored the Governor, before his departure, to give him the comfort of an assurance that at least a part of the land which he had purchased under the authority of his predecessor, Capt. Fitzroy, would be given to his widow and children: he would be satisfied with only a portion. Well, sir, the House will be prepared to hear that the draconic refusal, was his death knell. It was not so: he was spared that pang. "I took," – said the poor woman to me, "I took the messenger in, and shewed him my husband in his coffin; and then desired him to go back and tell the Governor what he had seen. After a time, I called upon the Governor myself, and asked him if there was no hope of my getting any part of the land. He replied, none whatever; that, in fact, I had no right to have those title-deeds, that Captain Fitzroy had no right to allow my husband to buy that land." Now, sir, we who have access to the Parliamentary papers know, that these were false pretences. There was nothing wanting in those transactions to constitute a perfect contract, such a contract as the judicature of every civilized country would have enforced in the case of private persons. Even if Captain Fitzroy had mistaken his duty, nothing but a fraudulent collusion between himself and the parties in whose favour he waived the Queen's right of preemption could dissolve the obligations which the Government had incurred. They were binding on the National faith. And we also know, sir, that at the time Governor Grey dealt thus cruelly and deceitfully with this poor widow, he was in possession of despatches from two successive Secretaries of State – Lords Stanley and Grey – commanding him, and reiterating the command, that "the public faith must be kept with these persons at whatever inconvenience!" Sir George Grey told her he could do this for her: he could order that her money should be returned to her; and she at last consented to receive back the money – j£135 – which her husband had paid for the land nine years before. Not a shilling of interest was paid

for the use of it, although the Government was paying interest for the use of money during all that period; and Sir George Grey himself, as I have been told, was receiving 8 per cent on Government debentures. Now this Bill would afford no compensation whatever to this woman for so gross a violation of her rights.

There is a case of another widow which was published and animadverted upon in the newspapers of the time, in terms which were a public scandal to the Colony. I hold it for certain, sir, that not a man in England could be brought to believe that such transactions, in their literal truth, could have occurred under the Queen's dominion in the 19th century. This woman states in her memorial to the Legislative Council, that in order to purchase 9 1/2 acres of land which Captain Fitzroy authorised her to purchase as a provision for herself and seven children, she sold her trinkets and her watch. The public Gazette of the Colony, issued under the authority of Governor Grey himself, informed the public that the title thus acquired had been investigated by the Commissioner, appointed to that office, and found valid, and that a deed of grant was in preparation for 9 acres, 3 roods, and 25 poles. 16 In the meantime, however, it would appear that Sir George Grey had discovered that this piece of land was, from its locality, extremely valuable; so he caused a grant to be made out for the widow for one acre one rood and five poles, and ordered a letter to be addressed to her stating that the grant for that quantity was prepared, and fees to the amount of 2s. 6d, due upon it. and that unless these fees were paid within one month "the claim would be dissallowed, the grant cancelled, and the Surveyor General directed to take possession of the property." The remainder of the land was sold by public auction, and the proceeds of it received into the public treasury. Is it possible, sir, that a Christian Legislature can adopt and identify itself with such a transaction as this, by refusing redress to this poor widow, so cruelly and fraudulently despoiled of her property? But the provisions of this Bill would prevent the Commissioners from even taking cognizance of either of these two cases, and there are many cases in which individuals have received similar treatment.

I do not know, sir, whether it had been attempted in America to settle claims to land in that country by such empirical measures as this, and those which have preceded it, depriving men of their natural and common-law rights. But from what Judge Story

said on the subject, I had the curiosity to go through the Statute-book of the United States, and I found that, from the Declaration of Independence to the year 1837, eighty-one Acts of Congress were passed for the adjustment of land claims. I have read them all, and the Statute-book of the United States (a copy of which is now in Auckland) may be referred to for the verification of what I am about to state. These enactments enlarge, from time to time, the periods allowed for the proof of claims, and extend the facilities for bringing such claims forward. The spirit of those laws, which may be everywhere traced, and which is always predominant, is, an anxiety to do justice and to avoid injustice to individuals.

The claims to land throughout the Union, were complicated in their origin. They consisted of conditional promises, the conditions being more or less fulfilled, or altogether unfulfilled; of unconditional promises, but wanting the confirmation of title necessary to give them legal validity; of titles, valid by the laws of the countries or states which granted them, but wanting such an authentication or registry as would warrant their recognition by the new Sovereignty under which they had passed. They had proceeded from the British, French, or Spanish Governments, and were further complicated by disputes of jurisdiction, arising from the uncertainty of boundaries between States and Provinces.

With a patient determination neither to compromise the rights of the humblest individual, nor to impede the public survey and settlement of the territory, Congress appears to have held on the even tenor of its way, providing, by fresh enactments, for every new difficulty which the labours of its various Commissioners brought to light: taking cognizance as well of the laws of Florida and Louisiana, while those Provinces were held under the Governments of Spain and France, as of the usages and customs of those Governments which might be appealed to as giving "a colour of title." Nor were cases wanting of conflicting titles to the same land, claimed by persons holding warrants, or patents for lands of greater extent than were contained within their general boundary. And how were those difficulties met? Not by confiscating rights, which could not coexist with other rights, equally valid, or by giving for lands of unquestionably value, other lands of little or no value whatever. But by a negotiation with the parties whose claims were incompatible with the claims of others equally binding upon the Government; and by a vote of money to indemnify the parties, whose claims were the subject of negotiation. So late as the year 1830, there is an Act of Congress "to quiet the titles of certain purchasers of lands," by which Congress

granted 62,519 dollars to enable the President "to keep the public faith" with one class of land claimants: and to quiet the titles of land for which valid, but incompatible titles had been issued.

Nor with all this tenderness for the rights of individuals, was there any want of vigilance to protect the public interest. "When every opportunity of settling claims by Commissioners had been tried, those who considered themselves aggrieved by the decision of those Commissioners, were entitled to appeal to a jury; the United States Attorney for the District being instructed to appear for the Government; and from the decision of the District Court there was, in like manner an appeal to the Courts of superior jurisdiction; the Attorney-General of the United States being instructed to take measures for defending such actions as might be carried into such courts from those below.

So late as the 17th June, 1844, there is an Act of Congress, extending over Arkansas, Missouri, Louisiana, and those parts of Mississipi and Alabama, South of the 31st degree of North latitude, and between the Mississipi and Perdido rivers, an Act of the 26th May, 1814, entitled, "An Act to enable the claimants of land in the State of Missouri and Territory of Arkansas to institute proceedings to try the validity of their claims," by which the Courts were opened to decide upon claims under the Treaty of Paris of 1804, of a certain class which were not perfect, but which might have been perfected into a complete title under the laws, usages, and customs of the Government under which the same originated, had not the Sovereignty of the country been transferred to the United States."

I propose to you, sir, that this House should legislate in the same spirit. The report of the Select Committee on this question states that "one of the greatest difficulties encountered by Sir George Grey in his attempt to settle these claims" was this, "that no enactments of his, especially with popular institutions looming in the immediate future, could absolutely fix the point where decision would be actually final, and appeal or reversal really unattainable." And I say to you, sir, that no attempts at legislation by this House which go to deprive a British subject of the rights which are secured to him by the law of England, or which are inconsistent with the dictates of natural justice, can be final. I heard the Colonial Treasurer last night pathetically complain that the settlement of these questions, which he said Sir George Grey was expressly sent out to settle, should have been left to you. The fact is that these titles never were unsettled otherwise than by the measures of the Government: no one

ever complained of them. Look at the reports of the first Commissioners – only four or five titles objected to, out of 750 which the Natives maintained to have been fairly acquired.

You expect by these measures to obtain for the public some 100,000 acres of land. I saw it stated in some official paper, that 200,000 acres had been expressly granted to the old land purchasers, and that 100,000 acres more was about the extent which the Natives' testified to have been sold, but which the Government will not, under the provisions of their land claims ordinances, allow the buyers to possess. But are you quite sure, that, supposing you should succeed in depriving the rightful owners of these lands of their property, you will obtain it for the Crown? I have told you in my petition that you are legislating in the dark. You have not the knowledge to enable you to legislate on this question. I recommended the Committee to examine Mr. John White, of the Native Secretary's Department, on this subject. He was not examined. What I am about to state I heard from him in the course of conversation, and I am authorised, both by himself and by Mr. McLean, the head of his department, to repeat it on the present occasion.

This gentleman recently returned from Hokianga, whither he was sent to induce the tribes of that district to abstain from taking any part in a dispute at Kaipara, which was likely to lead to a native war. He perfectly succeeded in that object. He had been known from his infancy, or boyhood, in that district, All the influential Natives of the district were assembled on the occasion; and when the decision was arrived at, that they should take no part in the Kaipara dispute, they introduced the question of the lands which had been exchanged by the owners, for land near Auckland. Most of the lands which had been exchanged for scrip were in that district. They said they wished the boundaries of those lands to be pointed out, before all the old people died off in order to avoid disputes between the Government and their children. But they wished also to know what was to be done with the land which they had sold, but which the Government would not allow the buyers to possess, as being of too great extent – "the surplus land" as it has been absurdly called "If," said they, "these pieces of land are left in the possession of those who bought them, it is right; but if the Government thinks to possess them, we tell you plainly, that they shall not be allowed to possess them."

Sir, this is a serious question, and one which may, if the Government attempts to carry the provisions of this Bill into effect, be the occasion of another war. Are you prepared for that?

When it was told Nopera, a chief of the North lately dead, that the Government claimed a part of the Missionaries lands, his reply was, "Let them attempt to enter into possession." These are significant words, and they express the feelings of every Chief who sold land to individuals before the cession of the Sovereignty.

I have shown you with what labour and care the legislature of the United States guarded the proprietary rights of individuals, allowing even a "colour of title" to be tried by the legal tribunals of the country.

I would refer you, also, to the instructions under the Royal Sign Manual issued to Sir George Grey in 1846. He was there instructed to appoint registries in which every person should be required to register his titles: to institute Land Courts to decide upon the accuracy of such registrations: such Land Courts to be holden in the districts where the lands registered were situated. In disputed titles, the Land Courts were to decide between opposing or incompatible claims; but a right of appeal was allowed to the Supreme Court of civil justice. Compare the simplicity of the process described in these instructions, with the complex details of this Bill. Compare the just provisions of the one, with the vindictive enactments of the other. Sir George Grey treated those instructions with the same contempt with which he treated the imperative instructions of Lord Stanley, reiterated by Lord Grey, to keep "at whatever inconvenience" the public faith with the pre-emption Land Claimants. I invite you, Sir, to abandon the course pursued by Sir G. Grey. I invite you to throw to the winds such complex and empirical legislation – so unworthy of a civilized, not to say a Christian community; to cast such measures to the moles and to the bats. I invite you to return to the divine simplicity of truth, to take your stand on "that vantage ground, a hill which cannot be commanded, where the air is always pure and serene." Do this, and you will disentangle yourselves from those difficulties and perplexities, which I heard it so feelingly lamented should have been cast upon you. Redeem the public faith, which has so long been trodden unden foot. Do justice to those who have suffered injustice. And should any member ask me what would be justice? I would beg of that member to place himself in the position of any of the persons to whose cases I have alluded, and ask himself how he would like to be treated so; and I would then say, "whatsoever ye would that men should do unto yon, do ye even so unto them." If this rule be binding upon private persons, it is more imperatively binding upon those who ought to be "a terror to evildoers, and a praise to them who do well."

Your Bill proposes to enlist the public confidence in its support by making the Judges of the Supreme Court ex officio members of the judicial tribunal you propose to create; but suppose you should meet with a Judge who might say to you, "This is a Star Chamber Commission, which assumes, a right to deprive Her Majesty's subjects of their common-law rights. It may be my duty sitting as Her Majesty's Judge in Her Supreme Court to take cognizance of the acts of this Commission, I cannot allow myself to be associated with such proceedings," where would be the public confidence then? Suppose he should question the authority of the Legislature of this Colony to create a Court at all, – seeing that such authority, though given to the Governor by Letters Patent, is not given by enactment to the General Assembly, – that even the Queen could not legally establish a Court with such powers as are professedly to be given to this Court, – powers which would violate Magna Charta and the Bill of Rights. In what position would the judicature which you propose to create be placed?

I was asked by a member of the Select Committee in reference to the evidence which I gave before that Committee, what it was I wished 1 replied that, though I had never been averse to an equitable compromise, if I had justice I should not only have my land restored to me, but heavy damages also for the persecution I had endured, and the losses I had suffered through the bad faith and injustice of the Government. The rejoinder of that hon. member was characteristic – shall I say of this measure? "It is said that every man in the course of his life must eat a peck of dirt; and every man also must submit to a great deal of injustice."

I heard, Sir, the tribute that was bestowed last evening upon the industry and labour which were evinced in the drawing up of this report. I join in that tribute – pity that such industry and labour should have been so ill bestowed. The hon. member would, I dare say, insist that this Report and this Bill are no dirt – that they are more like a royal banquet. He might point to the vast extent of area over which it is spread; to the lucidus ordo, the classic arrangement of the dishes – nothing wanting in solidity, nothing in ornament. Course follows course with the regularity of the best appointed tables. But, Sir, I can see the "goings of the Serpent" amongst those massive dishes. I shall not eat the "Serpent's meat." I shall have none of the "viper-broth." You may tell me it is a royal feast; that you are sending me "a portion from the king's table," but I "have purposed that I shall not defile myself with the king's

meat." I shall oppose the injustice which this Bill would work, as I have always, at the sacrifice of my own private interests, opposed the unjust measures of the Government in dealing with this question. I hold it to he the highest duty to which a citizen could be called; to oppose, by such means as a good citizen and a christian might use, the unlawful and unjust acts of persons in power.

I wish, Sir, to express to the House the obligation under which I feel for the patience and forbearance with which they have heard me.

5 Printed in Parliamentary Paper of 8th April, 1840.

6 Report on Aborigines, p. 78.

7 8th April, 1840.

8 Parliamentary Paper, 11th May, 1841.

9 Parliamentary Papers of 8th April, 1840.

10 Parliamentry paper of 8th April, 1840, page 28.

11 Report on New Zealand of 1844, p. 188 – app.

12 Parliamentary Report of July, 1844, p. 334 – app.

13 As an example see a letter from Mr. Somes, Governor of the New Zealand Company, to Lord Stanley, in Report of 29th July, 1844, p, 526 – app.

14 See the Instructions and Report of the Commissioners Papers presented in Continuation of Papers of December, 1847, and February, 1848.

15 Captain Fitzroy in remarking upon Governor Grey's Despatches, makes the following observations (see Parliamentary Papers): – "With respect to the Church of England Missionaries' claims to land in New Zealand, I may here, in passing, state my own conviction that those claims will not 'give rise to native wars' or 'disputes between the Government and the Natives,' unless the Government attempt to dispossess the legitimate and undisputed owners of those lands, namely, the Missionaries and their numerous children, many of whom are married and have children,"

16 See Government Gazette, No, 17, Aug. 10, 1847.

[Appendices]

APPENDIX A.

"THE LAND CLAIMS SETTLEMENT ACT, 1856," is considerably modified from the first draft of the bill laid before the House of Representatives; and it is still further modified from the bill as reported and sent to the Legislative Council.

These modifications are principally in the provisions affecting the purchases made from the Aboriginal proprietors before the establishment of the British Government.

The demand of one shilling an acre for the issue of each grant, and one shilling and sixpence an acre for surveys, as recommended by the Report of the Select Committee, and adopted in the first draft of the bill, are expunged from the Schedule; and in lieu thereof the moderate fees of £1 on the issue of a grant, and 10s. for each 100 acres contained therein are substituted. Provision is also made that a certain quantity of land shall, under the name of "Compensation," be granted to parties who have their lands surveyed at their own expense. The provision that the Judges of the Supreme Court should be ex officio Commissioners is also expunged – an alteration pregnant with significance. Nominally, also, there is an appeal from the judgment of the Commissioner to one of the Judges of the Supreme Court of the Colony. But the appeal is only nominal.

In the marginal note to clause 13, we read "Appeal in cases of parties aggrieved;" but the body of the clause nullifies the hope held out in the marginal note, by enacting that the party "may, within one calendar month after such decision, appeal to any Judge of the Supreme Court, upon a case in writing to be stated or settled by the Commissioners." Why are the words in Italics introduced? The object is transparent. Were the appellant to be allowed to state his own case, the whole act, as well as the proceedings under it, might be declared illegal. Could anything but a consciousness of this have suggested so unusual and inconsistent a provision? Is it not a mockery and an insult to common sense to call such a provision an appeal?

The clauses dealing with pre-emptive claims do not differ in any material point from the recommendations in the Report of the Select Committee; and they are as much a breach of the public faith as the proceedings of Sir George Grey, for the injustice of which they profess to afford compensation.

The Government was positively pledged to issue Crown Grants for land purchased from the natives under the authority of a certificate of pre-emption. Sir George Grey chose to disregard this pledge; but two successive Secretaries of State, Lords Stanley and Grey, instructed him in the most express terms that "the public faith must be kept inviolate" (to the holders of pre-emption certificates) "be the consequent inconvenience what it may." Sir George Grey disregarded this instruction; but proposed various plans of compromise, under conditions, some of which were impossible, and all of them unjust, inasmuch as there was no mention of such conditions when the pre-emption certificates were issued.

To say that such lands as were purchased under pre-emption certificates, and with respect to which all the original conditions were complied with, shall not be granted to the purchaser unless upon a payment of one-fourth of its value, as enacted by clause 29, is as much a breach of public faith as to say that they shall not have them at all. A similar remark is applicable to the limitation to 500 acres, or to any other extent not provided for in the original certificate. The universal laws of moral obligation can no more be abrogated by the enactment of a Legislative body, than by the arbitrary fiat of a Governor.

Sir George Grey's excuse was, that these transactions did "injustice to the public" meaning that the individuals who received pre-emption certificates were allowed to reap too great an advantage at the expense of the public. And the select Committee in their report give a similar reason for their recommendation, namely, that "these purchases were only permitted on a most erroneous principle, and one clearly detrimental to the general interests." But it is a new doctrine that a bargain may be annulled because it has turned out more profitably to one party than was anticipated when it was made. If indeed, fraud had existed on either side, if the party claiming a grant had made a false representation, or if there had been a fraudulent collusion between Governor Fitzroy and any of the claimants – justly then might the claims of such claimants have been abrogated. But as no one ever dreamt of imputing fraud to Governor Fitzroy – every claimant who can shew that that he has been guilty of no misrepresentation, and has complied with

the original conditions of the pre-emption certificate, has a perfect right to a grant of the land purchased under those conditions without any further payment than those conditions required.

The Report of the Select Committee states (page 11,) that, "as in many of these penny-an-acre cases, including most of those affecting the most valuable lands, the lands, as your Committee is informed, have been resumed and resold by the Government, whenever such claims are found to be good it will be necessary to compensate the claimants."

They then proceed to make certain recommendations with respect to the mode in which what they call "compensation" should be granted. And in conformity with these recommendations, clause 32 of the Act provides, that "in estimating the quantity of compensation land to be given as last aforesaid, the Commissioners shall estimate the same by the amount realized upon such alienation of the land comprised in the original claim, but in no case shall the original land be estimated as having realized more than one pound per acre; surely there could be no greater abuse of language than to call this compensation. In the case of Mrs, Forbes of Onehunga, for instance, which has been so often referred to, for eight and a half acres of her land which was sold by the Government, she would only be entitled under the provisions of this clause to land valued at £8 10s., while what was sold by the Government owing to its proximity to the harbour of Manukau now opened to navigation, is stated on the best authority to be worth £100 an acre. That is she would receive £8 10s. as compensation, which in ordinary language means an equivalent for from £800 to £850. But even this mockery of compensation is refused to Mrs. Forbes under clause 33, because under a threat of being deprived of the whole of her property she accepted a grant of 1 acre, 1 rood, 5 perches, in lieu of 9 acres, 3 roods and 25 perches, to which not only Governor Fitzroy but Governor Grey himself in the public Gazette certified her to be entitled. To say that so flagrant an act of oppression as that committed upon this person, a widow who had seven children to provide for, and who in order to obtain the small piece of land which was to be a provision for her children, states that she was obliged to sell her watch and her trinkets, should be allowed to continue unredressed; that it should be taken for granted that, in the language of the Report, "finality or conclusiveness has been arrived at"; because a Committee of the House of Representatives in virtue of its being so enacted by the Legislature consider it "a verdict hacked by all the authority

and weight of a body representing the opinions of the whole community," is as much as to say that there is not one honest man in the Legislature, or not one private individual in the Colony with sufficient public spirit to remind the Legislature of its duty.

APPENDIX B.

In page 18 a confident persuasion is expressed, that no claim acknowledged and maintained by the Natives was of such extent as to justify the Government in disallowing it, on the grounds of its extent or value making its recognition "prejudicial to the latent interests of the community."

A cursory examination of the Return of Land Claims printed by order of Sir George Grey, and laid before his Council on proposing the enactment of the Ordinance, Session 10, No. 4, would seem to reveal to a person unacquainted with the details of the subject, a state of things which required a measure of a most stringent character; but an analysis of that return will prove that the claims sent in to the Government of proprietary rights to extensive territories, of which so much has been made, had no foundation in justice or truth. For instance, it will appear

1. That the whole number of claimants was 459, and the number of tracts of land claimed, 1020.

2. That five persons preferred claims to 26 tracts of land estimated in the aggregate at 7,950,000 acres; but that of these five persons, four never made any attempt to substantiate their claims, and that the fifth does not appear to have made good his claim to a single acre.

3. That 25 of the claimants preferred 34 claims extending in the aggregate to 741,410 acres, none of whom ever attempted to substantiate their claims.

4. That 11 persons made claims to 125,000 acres but withdrew their claims.

5. That 8 persons claimed 105,000 acres, but had so little confidence in their titles that they refused to pay the fees to the Commissioners for their examination.

6. That, on the whole, 143 claimants never attempted to make good their claims; that 27 withdrew their claims after having made them; that 12 did not consider their claims worth the fees; and that in 208 cases the claims are so vague, that the extent of land claimed is not even estimated. On the other hand it is officially reported that out of 750 claims which had been examined, by the Commissioners, only 4 or 5 had been disputed. Had the printed Return before referred to, set forth the prices or consideration proved to have been given for the lands claimed, it would not only have appeared at a glance what claims were genuine and valid; but (and this is the most probable reason why so essential a piece of information was withheld) it would have excited astonishment, that any constituted authority should have sought to invalidate contracts of such a character as those admitted by the Natives.

It is shewn by these Returns, that while in every instance Sir George Grey endeavoured to deprive the large families of the Missionaries, most of them born in New Zealand and settled on their lands, of all the lands their parents had purchased for them exceeding 2560 acres – grants extending to 24,269 acres were made to one individual (or to his assigns) who never settled, and probably never intended to settle, in the country.

POSTSCRIPT.

In consequence of the haste with which the manuscript of the foregoing statement was prepared for publication, in a different shape, and the writer's distance from the printer, several inaccuracies have crept in, of which the most considerable are the following: –

In page v. of preface, line 23, for providing read proving.
In page 1, line 19, for effected read affected.
In page 32, line 22, for Admirable read Admiral.
In page 34, line 26, for it was such precedents read it was to such precedents.
In page 35, line 29, omit the word that.

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