The New Zealand Question

Louis Alexis Chamerovzow

First published by T. C. Newby in 1848

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

Epub © 2013 Early New Zealand Books Collection

ISBN 978-1-927279-73-1

[TITLE PAGE]

THE
NEW ZEALAND QUESTION

AND THE
RIGHTS OF ABORIGINES.

BY
LOUIS ALEXIS CHAMEROVZOW.

LONDON:
T. C. NEWBY, 72, MORTIMER STREET,
CAVENDISH SQUARE.
1848.

[Page ii is blank.]

[PREFACE]

[Signed by the author.]
[The Revd. W. Ellis
From the Author.
A token of respect for his exertions on behalf of the Aborigines of New Zealand.
L. A. Chamerovzow]

PREFACE.

The following Pages are sent forth with a view of calling Public attention to the present state of New Zealand, and are addressed to all who feel an interest in the subject of Colonization, and who believe in the importance of urging upon the Legislature the necessity of immediately adopting a more systematic, a less exclusive, and a more economical policy.

LOUIS ALEXIS CHAMEROVZOW.

CAMBERWELL, 31st July, 1848.

[Page iv is blank.]

[CONTENTS]

CONTENTS.

CHAPTER I.

Introduction; and comprising a brief history of New Zealand, from the period of its discovery to that of its becoming a British Colony.

CHAPTER II.

On the "Right by Discovery;" particularly in reference to an already peopled country: to wit, New Zealand.

CHAPTER III.

How "Right by Discovery" is perfected; and how Great Britain renounced those which She is assumed to have had, in relation to New Zealand.

CHAPTER IV.

Under what conditions Great Britain acquired the Sovereignty over New Zealand. The Treaty of Waitangi.

CHAPTER V.

The Treaty of Waitangi and its Provisions.

CONTENTS.

CHAPTER VI.

Observations on the Treaty of Waitangi.

CHAPTER VII.

On the abstract principles of Land-tenure, and the Land-rights of Aborigines.

CHAPTER VIII.

New Zealand under Governors Hobson, Shortland, and Fitzroy. The Land-Question.

CHAPTER IX.

The Charter of 1846, and its accompanying Letter of Instructions.

CHAPTER X.

A few last words. Summary.

POSTSCRIPT.

CHAPTER I.

THE NEW ZEALAND QUESTION.

CHAPTER I.

INTRODUCTORY, AND COMPRISING A BRIEF HISTORY OF NEW ZEALAND, FROM THE PERIOD OF ITS DISCOVERY TO THAT OF ITS BECOMING A BRITISH COLONY.

AT the present day, when Emigration is regarded by successive Legislatures, by Political Economists, and by Society at large, as the most immediate and the wisest remedy for the evils attendant upon a super-abundant population, clamouring for labour and rapidly pauperizing; as the only available mode of providing for its permanent subsistence, and assuring its future welfare: when, in their inability to overcome the difficulties that beset their social condition at home, or to ameliorate their actual position, numerous bodies appertaining to all descriptions of Operatives, as well as large numbers of Agriculturists, turn their eyes towards newly-settled countries, where there exists a fair prospect that the honest in-

dustry of their hands will, in due season, yield back to them its legitimate produce, in sufficiency for their necessities, if not in excess for store against the day of age or of misfortune: under these circumstances, Emigration assumes an all-important aspect; and it becomes a vital question to determine what clime holds out to our emigrating fellow-countrymen the greatest inducements to sever themselves from old and dear associations, with the view that they may enjoy their just share of those advantages from which they are shut out in the land of their birth and kindred.

Australia, the Canadas, the Cape of Good Hope, each in turn have had attractions for the Emigrant, and even yet the tide sets freely in the same direction; but it has never been disputed by competent persons, whose judgment was matured by experience, that in respect of climate, and of situation, New Zealand offers far greater advantages to the class above mentioned, than does any other Settlement of the British Empire; and notwithstanding that its natural resources are but limited, (how greatly soever land-jobbing interests may attempt to magnify them) it is doubtless destined to become

one of the most populous and flourishing of Colonies, if the Legislature should not impede the development of its prosperity, by unwise, though perhaps well-intentioned enactments.

The relations of Great Britain with the Islands of New Zealand, are unprecedented in the annals of Colonization, inasmuch as her acquisition of the country was peculiar and specific; and this fact renders the position of Settlers there and of Emigrants proceeding thither, both complicated and singular, they being brought into contact with an intelligent, enlightened, and ambitious native Race, who standing dispossessed of the Sovereignty of their own country, claim extensive and exclusive proprietary rights of which they are extremely jealous, and which they are in a situation to enforce; whilst, on the other hand, the local Government asserts, on behalf of the Crown, another kind of right, by virtue of which all free exercise of the Natives' natural proprietary rights is averred to be extinguished, and the Emigrant becomes dependent, not alone upon the disposition of the Native owner to sell his land, but on that of the local Government to permit the purchase of the same by any third party, save through its medium, and contingent upon its

own inclination to acquire such land so offered for sale, at a price regulated by circumstances, and virtually irrespective of native valuation.

In the origin, that is, before New Zealand was annexed to the British Empire, large, and in some instances, nominal purchases of land, extending over many thousands of acres, were effected by various individuals, many of which purchases have since been declared invalid by the local Government, being repudiated by the Native owners, on the plea of inadequate compensation, ambiguous contract, ill and undefined boundary, wilful double-dealing, or actual fraud. 1 The settlement of these claims has proved a fruitful source of contention, producing sanguinary collisions between the Aborigines and the Settlers, engendering extreme disaffection towards the local Government, on the part of both, and effectually embarrassing it, by placing it in the difficult and delicate position of arbitrator between the Crown and so many and such various contending interests; nevertheless, the whole of these

difficulties might have been avoided at the outset, or resolved long ago, had the Government only acted with consistency, and Speculators and Settlers with the ordinary degree of mercantile justice which usually characterizes every transaction in which Capitalists engage, save – as it would seem – the mania for land-jobbing.

The foregoing facts, taken collectedly, have invested the New Zealand Question with peculiar interest; an interest which is daily increasing; as, however, a perfect comprehension of it cannot be attained to without some knowledge of the history of the Colony, we will commence by a brief re-capitulation of the principal circumstances connected therewith, beginning at the earliest period at which it figures in the annals of the countries of the world.

It is generally admitted that the Dutch Navigator, Captain Abel Jansen Tasman, was the first European who visited New Zealand, and came into contact with the Natives; nevertheless, this honour has been claimed for Juan Fernandez, who, "having set out from one of the ports of the West coast of South America in the year 1576, sailed for about a

month in a South-westerly direction, and then reached a land fertile and pleasant, inhabited by a race of white people, well-made, and dressed in a kind of woven cloth." It would seem that New Zealand is the only country yet known, which at all answers to the account given of Fernandez's discovery, "but," adds the authority from which we quote, "it is not impossible that the land at which he arrived, may have been some other island or continent, not so far to the West, which has yet eluded the search of succeeding Navigators." 2

It is to be regretted that the misfortune which befel another enterprising Navigator, the Sieur Binot Paulnier de Gonneville, has placed it out of the power of Geographers to state positively to what extent his discoveries in the South Seas may give him a claim to contest with Magellan the glory of having discovered Australia, and with Tasman, that of having found New Zealand. He sailed from France in June 1503, and pursuing a South-westerly course as far as the 60 deg. S. Lat. veered then towards the W.N.W., and N.W. falling in

with many strange lands, until, finally, he reached a large Continent, peopled by a numerous race of amiable Savages, amongst whom he remained above a year, and whom he quitted with regret, on the 3rd of July, 1504. The son of one of the Chiefs voluntarily accompanied him on his homeward voyage, which he pursued in the opposite direction, and in the spring of the year 1505, he again made the French coast. Off Jersey, however, an English smuggling-vessel attacked him, took his ship, and robbed it of everything it contained, destroying his papers and his journal. He finally got back to France, and introduced the Australian – for such was the son of the Chief – to his circle of acquaintance. The stranger ultimately married into De Gonneville's family.

The fame of De Gonneville's discoveries soon spread abroad, and he subsequently made an official statement of all that had befallen him; but it seems that the archives of the town in which he abode, amongst which the account of his adventures was deposited, were pillaged during the troubles that distracted France; and when Maupertius – anxious to examine these interesting documents – sought

to verify the tradition of their existence, not a vestige of them could be found. 3

From the foregoing facts, some Geographers have assumed that De Gonneville possibly visited or saw New Zealand. We do not purpose entering upon the question, though we believed the narrative sufficiently singular and interesting to afford it a place in a chapter that treats exclusively of the discovery of these Islands, the more especially as De Gonneville's voyage preceded that of Fernando de Magalhaens or Magellan, by sixteen years, and he may therefore be admitted to have a prior claim to the palm awarded to the latter and to Tasman, with reference to the discovery of the great Southern Island of Australia, and of the Islands of the Pacific.

Whether Juan Fernandez really visited New Zealand, Geographers are not in a position to determine, nor is the fact of any great importance; though that he may have seen them is probable. The next navigator – whose name will ever occupy so honourable a place in the annals of nautical discovery – Abel Tasman,

seems to be the person whose intercourse with the New Zealanders is beyond the pale of doubt; nor can we do better than furnish his own account of the event, as contained in the Journal kept by him during the voyage he undertook for the discovery of Southern Countries, by the direction of the Dutch East India Company.

"Aug. 14, 1642. – Sailed from Batavia with two vessels, the one called the 'Heemshirk,' and the other the 'Zeehaen.'

"On Sept. 9, I was in the latitude of 42 deg. 37' S., and in the longitude of 176 deg. 29'; the variation being there 3 deg. to the East. On the 12th of the same month, finding a great rolling sea coming in from the S.W., I judged there was no land to be hoped for on that point. On the 13th, being in the latitude of 42 deg. 10' S., and in the longitude of 188 deg. 28', I found the variation 7 deg. 30' eastward. In this situation I discovered an high mountainous country, which is at present marked in the charts under the name of New Zealand. I coasted along the shore of this country to the N.N.E. till the 18th; and being then in the latitude of 40 deg. 50' S., and in longitude 191 deg. 41', I anchored in a fine bay, where I observed the variation to be 9 deg. towards the West.

"We found here abundance of the inhabitants;

they had very hoarse voices, and were very large made people. They durst not approach the ship nearer than a stone's throw; and we often observed them playing on a kind of trumpet, to which we answered with the instruments that were on board our vessel. These people were of a colour between brown and yellow, their hair long, and almost as thick as that of the Japanese, combed up, and fixed on the top of their heads with a quill, or some such thing, that was thickest in the middle, in the very same manner that the Japanese fastened their hair behind their heads. These people cover the middle of their bodies; some with a kind of mat, others with a sort of woollen cloth; but as for their upper and lower parts, they leave them altogether naked.

"On the 19th Dec, these savages began to grow a little bolder, and more familiar, inasmuch that at last they ventured on board the 'Heemshirk,' in order to trade with those in the vessel. As soon as I perceived it, being apprehensive that they might attempt to surprise that ship, I sent my shallop, with seven men, to put the people in the 'Heemshirk' upon their guard, and to direct them not to place any confidence in these people. My seven men, being without arms, were attacked by these savages, who killed three of the seven, and forced the other four to swim for their lives, which occasioned my giving that place the name of the Bay of

Murderers. Our ship's company would undoubtedly have taken severe revenge if the rough weather had not hindered them. From this Bay we bore away east, having the land in a manner all round us. This country appeared to us rich and fertile, and well situated; but as the weather was very foul, and we had at this time a very strong west wind, we found it very difficult to get clear of the land.

"On the 24th of Dec, as the wind would not permit us to continue our way to the north, as we knew not whether we should be able to find a passage on that side, and as the flood came in from the south-east, we concluded that it would be best to return into the bay, and seek some other way out; but on the 26th, the wind becoming more favourable, we continued our route to the north, turning a little to the west. On the 4th of Jan., 1643, being then in the latitude of 34 deg. 35'. S, and in the longitude of 191 deg. 9'. we sailed quite to the Cape, which lies N.W., where we found the sea rolling in from the N.E., whence we concluded that we had at last found a passage, which gave us no small joy. There was in this streight, an island, which we called the island of the Three Kings, the cape of which we doubled, with a design to have refreshed ourselves; but as we approached it, we perceived on the mountain, thirty or five and thirty persons, who, as far as we could discern at such a distance, were men of

very large size, and had each of them a club in his hand: they called out to us in a rough, strong voice; but we could not understand anything of what they said. We observed that these people walked at a very great rate, and that they took prodigious large strides. We made the tour of this island, in doing which we saw but very few inhabitants; nor did any of this country seem to be cultivated. We found, indeed, a fresh water river, and then we resolved to sail east as far as 22 deg. of longitude, and from thence north, as far as the latitude of 17 deg.-S, and thence to the west, till we arrived at the isles of Cocos and Horne, which were discovered by William Schooten where we intended to refresh ourselves, in case we found no opportunity of doing it before; for though we had actually landed on Van Dieman's Land we met with nothing there; and as for New Zealand, we never set foot on it. 4

Schooten, to whom Tasman refers, was the companion of the enterprizing Merchant, Le Maire, and both conjointly made extensive discoveries in these regions, in the year 1614;

it is not, however, more than in the case of the predecessors of Tasman, certain that they visited New Zealand, although, like Fernandez, they may possibly have descried it from afar. Under the impression that the coast they saw on their left, when they were penetrating into the Pacific, through the strait called Le Maire's, was a portion of the Terra Incognita Australis, they gave it the name of Staaten Land; and Tasman, labouring under a similar belief that the land he had discovered was only another part of the same region, gave it the same appellation. Within a few months after, however, Heindrick Bronwer ascertained that Schooten's Staaten Land was an inconsiderable island, upon which the name of New Zealand was bestowed upon the country Tasman had visited.

Although no official accounts exist that any vessels visited New Zealand, from the time Tasman left it until Captain Cook re-discovered it in October, 1769, there is every reason to believe that a European ship touched at the island no great time previously to Captain Cook's first visit; for not only does Captain Cook refer to the circumstance, on the authority of the natives

themselves, but Captain Cruise says that one of the New Zealanders, an old man, informed him a ship had been lost on the W. coast, within a recent period, and its boat's crew cut off by his countrymen. 5

Our own illustrious circum-navigator was the first who ever furnished a perfect account of the New Zealand islands, because he was also the first who explored their coasts all round, and held continuous intercourse with the Natives, though their first meeting was not calculated to prepossess either party favourably towards the other, blood having been shed at the outset, in the attempt Captain Cook made to get some of the Natives on board. The conduct of these, indeed, in many respects resembled that of the ancient Britons, when they beheld Caesar and his Roman legions about to invade their country; it may, in fact, be pronounced to have been even bolder; for, nothing deterred by the firing of muskets, and by the destruction of life which followed, they continued to wage an unequal con-

flict, until only two of their number remained, and even these took to the water and fought till they were overpowered and made prisoners.

"I am conscious," observes Captain Cook, remarking upon this unfortunate transaction, "that the feeling of every reader of humanity, will censure me for having fired on these unhappy people, and it is impossible that upon a calm review, I should approve of it myself. They certainly did not deserve death for not choosing to confide in my promises, or not consenting to come on board my boat, even if they had apprehended no danger; but the nature of my service required me to obtain a knowledge of their country, which I could not otherwise effect than by forcing myself into it in a hostile manner, or gaining admission through the confidence and good-will of the people. I had already tried the power of presents without effect; and I was now prompted, by my desire to avoid further hostilities, to get some of them on board, as the only method left of convincing them that we intended no harm, and had it in our power to contribute to their gratification and convenience. Thus far my intentions certainly were not criminal; and though,

in the contest, which I had not the least reason to expect, our victory, might have been complete without so great an expense of life, yet in such situations, when the command to fire has been given, no man can restrain its excess, or prescribe its effect." 6

We leave our Readers to comment as they will upon the extenuation Captain Cook offers of this affair; having, however, given an account of his proceedings on discovering New Zealand, we will add, from the same source, a few details on the manner in which he celebrated his departure therefrom.

"After having fixed a post in the ground, he hoisted upon it the British Flag, and honored the inlet with the name of Queen Charlotte's Sound. At the same time he took a formal possession of this, and the adjacent country, in the name and for the use of His Majesty King George the III. The ceremony was concluded by the gentlemen drinking a bottle of Wine to Her Majesty's health; and the bottle being given to the old man who attended

them up the hill, he was highly delighted with his present?"

From the date of Captain Cook's last visit to New Zealand, up to the year 1815, it does not appear that the accounts furnished by whalers and others, tended to impress Europeans with any other opinion of the Natives, than that they were a race of atrocious cannibals, wholly unfit to be admitted within the pale of civilization; indeed, the massacre of Captain Furneaux's crew, and that of the Mascarin, commanded by Marion du Fresne, followed in 1809 by that of the Boyd, were events, which considered only under one aspect were calculated to produce this impression; though it ought to be borne in mind that it is not improbable each of these sanguinary transactions might have been in retaliation for the blood shed by Captain Cook, in the first instance, and by De Surville in the second, as the massacre of the Boyd's crew undoubtedly was for the deadly insult Captain Thompson put upon the chief Tarra (George) in making him work, twice flogging him at the gangway, and depriving him of food. To this day, even un-

der Christian influence, the New Zealanders, resent to the death, any insult to their Chiefs, however slight; wherefore, whilst they were yet in a state of nature, an indulgence in the revengeful spirit of their race, might, under such circumstances, admit of some extenuation; the more especially when a similar plea is urged on behalf of the enlightened European committing crimes equally sanguinary, and, in many instances unprecedented in atrocity. 7

In the year 1815, the Rev. Mr. Marsden introduced Christianity amongst the Natives of the Bay of Islands, which was the port the most – indeed almost solely – frequented by whaling and other vessels, the visits of these early travellers extending no further N. from the Bay of Islands, than Wangaroa, whence parties would penetrate inland, across the country to Hokianga on the W. coast: ultimately other Mis-

sionaries settled in various parts, chiefly in the Northern Island, and many of the Natives were reclaimed from Heathenism.

During this long period, however, the Islands were under no government, save that of the Natives, whose ports continued to be regarded as free; but the settlement at the Bay of Islands rapidly increased, and the visits of whaling-vessels, English and Foreign, became more frequent, whilst runaway sailors and convicts from New South Wales, constantly took refuge on the coasts, committing such lawless outrages, that the Settlers applied to the Government at Sydney, praying for protection, many of the chiefs of the Northern Island joining them in entreaty. The result of these proceedings was the sending of Mr. Busby, to dwell there as British Resident, in 1833, though his power proved extremely impotent.

In 1837, further and more urgent representations having been made to the Home Government, Captain Hobson was appointed to fulfil the office of British consul at New Zealand; but the tide of emigration being specially directed thither, chiefly through the influence of speculating individuals at home, possessed

with the land-jobbing mania, and many evils to the Natives and to the Settlers threatening to result from the irregular system of colonization purposed to be adopted, the Collonial Government finally instructed Captain Hobson to treat with the Natives for the cession to the British Crown of certain parts of the islands of New Zealand, which in the event of his success, were to be added to N. S. Wales as one of its dependencies, Captain Hobson acquiring the title of Lieutenant-Governor.

In 1840, in the month of February, Captain Hobson succeeded in concluding, with various Chiefs and Tribes of the Bay of Islands, the Treaty of Waitangi, which was ultimately acceded to by the majority of those of the Northern Island. The local Colonial Secretary, Mr. Shortland, procured the adhesion of other Chiefs, sovereigns of the districts north of the Bay of Islands, whilst Major Bunbury and Captain Nias proceeded, in consequence of the Lieutenant-Governor's illness, to the eastern and the southern coasts of the Northern Island, and to the Middle and the Southern Island, as well as to Ruapooki in Faveaux's straits.

As we shall have occasion, in another chap-

ter, to recur more particularly to the proceedings of Major Bunbury and Captain Nias, we will simply add, that the Queen's sovereignty over the Islands of New Zealand was ultimately proclaimed, and they became, by act of cession, an appendage to the British Empire.

1 Vide Evidence before select Committee of the House of Commons. New Zealand.

2 "New Zealanders." Published in the Library of Entertaining Knowledge.

3 Vide Jno. Callander's Voyages. Terra Austra: 3 vols. 8vo., Edinburgh, 1766 – 8.

4 Vide Pinkerton's collection of Voyages, and Burney's History of Dis. in the South Seas. Also Harris and Haklnyt.

5 Vide his Journal.

6 Vide Hawkesworth's Account of Cook's First Voyage.

7 To wit, the retaliation of the English in the Affghan war and the doings of the French in Algeria, not to mention numerous other instances, and more particularly the very recent and heinous atrocities of the Poles in the Duchy of Posen. – (Ed.)

CHAPTER II.

CHAPTER II.

ON THE "RIGHT BY DISCOVERY," PARTICULARLY IN REFERENCE TO AN ALREADY PEOPLED COUNTRY: TO WIT, NEW ZEALAND.

ACCORDING to the Law of Nations, the act of taking possession, under certain conditions, of a newly-discovered country, gives to the discoverer – that is, to the Crown to whom such discoverer owes allegiance – certain rights inalienable and sacred; and thus it was through Captain Cook that the Islands of New Zealand originally came to be regarded as an appendage to the dominions of Great Britain. We purpose to discuss these rights, in the order in which they arise; wherefore we will enquire first into this "Right by Discovery."

VATTEL, the first authority on these questions, thus writes: 8

"All men have an equal right to the things which have not yet fallen into the possession of any one; and these things appertain to the first occupant. Wherefore, when a Nation finds a Country, uninhabited and without a master, it may lawfully seize upon the same; and after it has adequately denoted its will in this respect, another cannot thereof despoil it. Thus, Navigators, going on the discovery, provided with a commission from their Sovereign, and falling in with desert islands, or other desert lands, 9 have taken possession of them in the name of their Nation: and commonly this title has been respected, provided that thereupon a real possession have closely followed."

Acting upon the principles here laid down, civilized nations have ever appropriated to themselves those countries which the servants of the Crown were so fortunate as to discover; and the proceeding is evidently founded in

equity. There is, however, one important condition insisted upon by this great writer, which, in respect of this peculiar claim to such newly-discovered countries, should not be lost sight of, namely: that they must be "uninhabited and without a master."

As most materially affecting the rights of Aborigines, the observance of this condition is of vital consequence; but, unfortunately, although the Law of Nations is aptly enough quoted whenever there exists a possibility of wresting its spirit to the disadvantage of Native Tribes, its equity in this one main point of title by discovery has been wholly set aside; for whether the lands discovered were uninhabited or were peopled, the nation discovering has ever asserted its so-called right, and maintained it.

It will be our duty to show that the Law of Nations does not, under any pretext, sanction so gross a violation of the rights of a people, be that people civilized, semi-barbarous, or simply, savage; hence, under no pretext of right by discovery, of what nature soever the privileges which that right is assumed to confer – could Great Britain justly assume, by the act of Captain Cook, a bona fide possession of

the Islands of New Zealand, because, at the time of their discovery, those Islands were inhabited, and did not, consequently, come under the denomination of lands open to be "seized upon" by circum-navigators.

We are here arguing upon the abstract right, be it understood: we shall, in due place, enter upon the discussion of the more complicated political questions which arise out of it. We simply deny to any Nation the right, on the plea of discovery, to seize upon another country which, at the moment of its being discovered, is already inhabited.

At first sight this doctrine may appear extravagant, because diametrically opposed to the practice of civilized nations, of which practice, nevertheless, we cannot find a justification in any writer on the Jus Gentium, the principle being in all of them established that no nation whatsoever can, under any pretext, violate the rights of any other independent nation. And far better would it have been for humanity in general, and far worthier too, of those people calling themselves civilized, if in their mode of extending their power and domination, they had contented themselves with abiding by the spirit as well as the letter of the law; the

annals of their History had not then been polluted by the record of crimes committed under the influence of a thirst for power, nor would Society have had to deplore the consequent extermination of entire Tribes, whom Christianity and Civilization were destined to redeem from barbarism, not more deeply to degrade and finally annihilate.

We cannot apprehend, in spite of the practice which has hitherto obtained amongst Nations, in reference to the question of an unqualified right by discovery, that its validity can be maintained, on the broad, abstract principle of equity, however defensible may be deemed the more subtle political reasons adduced in support of it. Vattel is positive on this head; for he says:

"Nations being free and independent one of another, since men are naturally free and independent, the second general law of their association is, that each nation ought to be left in the peaceable enjoyment of that liberty which it holds from nature. The natural association of nations cannot subsist, if the rights therein which each has received from Nature are not respected. Neither of them seeks to renounce its liberty, and would rather break off all

commerce with those who would undertake to attaint it." 10

In another place, and speaking of the association which nature has established between men and between nations, he observes:

"The universal association of mankind being an institution of Nature herself, that is to say, a necessary consequence of the nature of man, all men, in what condition soever they be, are obliged to cultivate it, and to fulfil all the duties thereof." 11

This proves that savage tribes are not to be excepted from being considered as constituting part of that association of nations, recognized as forming the aggregate political not less than the natural world.

But certain theorists of over-diluted political sensibility, and who, in their eagerness to promote the advancement of the interests of the civilized nations to which they belong, are accustomed to disregard the natural rights of Aborigines, may possibly be shocked at the bare idea of men, living in a state of nature,

ranking – in point of political considerations – as the equals of their European civilized brethren; in such light, however, we cannot otherwise than regard them:

"Since men are naturally equal, and that their rights and their obligations are the same, as coming equally from Nature, nations composed of men, and considered as so many free persons who live together in a state of nature, are naturally equal, and hold from Nature the same obligations and the same rights. Neither strength nor weakness produces, in this respect, any difference. A dwarf is as much a man as is a giant: a petty republic is not less a sovereign state than is the most powerful kingdom.

"As a necessary consequence of this equality, that which is permitted to one nation, is likewise permitted to any other, and that which is not permitted to the one, is likewise not permitted to the other. 12

It will perhaps be asserted that Aboriginal nations do not come within the category in which we pretend to place them, upon the au-

thority of the Jus Gentium: but what says this law?

"Every nation that governs itself, under what form soever it be, without dependence upon any stranger, is a Sovereign State. Its rights are naturally the same as those of every other State. Such are moral persons, who live together in association, subject to the laws of the Jus Gentium. In order that a nation may possess the right of figuring immediately in this great association, it suffices that it be veritably sovereign and independent, that is to say, that it govern itself, by its own authority and laws." 13

From the foregoing evidence the inference is conclusive against the acquisition, on the mere plea of discovery, and by any nation whatsoever, of any right absolute over any newly-discovered country, the same being, at the time, inhabited, although by a savage race; whilst, on the other hand, such right is indisputable and sacred over those lands which are found unpeopled.

But if the strictest principles of equity will

not accord to a nation discovering, the acquisition of rights absolute, under similar circumstances, it does not therefore impede the extension of civilization through the medium of geographical discovery or exploration; it merely secures to the first occupants their right to all that fell in possession to them when they originally established themselves in the country, of which in reference to any subsequent discoverers, the Aborigines must be considered the more legitimate Sovereigns.

It appears to be a principle recognized by Jurists, that a nation discovering, acquires, by its act of finding new and already peopled regions, a certain valid but inchoative right, good as against any third party, but not as against the natives of the soil; in virtue of which, navigators have usually proceeded to take possession of the lands they have found, and this irrespective of the pre-existing rights of the Aborigines, who cannot be supposed ever to have been able to comprehend the importance of ceremonials which to them must appear vain and empty.

We here confess our inability to appreciate the nature of this so-called inchoative right, of which the Law of Nations makes no mention,

and which seems to us to violate the principles of justice whereupon the Law of Nations itself is established.

"A right inchoative, good as against third parties, but not as against the native owners of the soil." Let us examine the question.

And first, what right in the new country can the nation discovering, possibly acquire against third parties, without depriving the Native Sovereigns of some portion of their preferable rights, as the first occupants, to all that the country contains? for it must ever be borne in mind, and we cannot too strenously urge the recognition of this principle, that the Aborigines of any newly-discovered country do possess a prior claim to all those rights which a nation discovering asserts on its own behalf as against third parties, since there must have been a period when the Aborigines themselves were discoverers, and the country was probably desert and uninhabited, in which case the Law of Nations confers upon them absolute rights over it, Sovereign and proprietary, which must be held as sacred in the one case as in the other. They having, therefore, established themselves in the land and formed themselves into a Sovereign State, according to the accep-

tation of the Law of Nations, it is manifest that discovery cannot, nor ought in justice to prejudice them in respect of their natural Sovereignty and independence; hence, before we accord any rights at all to a nation discovering, we must carefully guard against such acquisition's violating these sacred prerogatives of a free people.

We may incidentally remark that in the case of the New Zealanders, it is urged that the title of some, to the soil they have appropriated to their use, rests in sundry instances upon the fact of their having (to employ the language of a certain facetious Member of the House,) "taken forcible possession of the same, and eaten off the legitimate owners." 14 Of course we cannot, any more than the honorable gentleman in question, maintain that such a principle, namely; of Might against Right, is to be justified; but the act being committed, and the parties in possession, we do not see how much more justified we, the nation discovering, and a Christian nation too, should

be in renewing the operation – less the cannibalism – for the purpose of dispossessing the actual occupants. This, however, en passant.

Under any circumstances then, it is manifest that the New Zealanders must be regarded, first, as the original discoverers of their Islands; next, as having complied with the conditions, namely; "occupation and use," imposed by the Law of Nations as indispensable to legalise the right which they, as discoverers acquired; and consequently, and in the last place, as the legitimate Sovereigns of their country; hence, as we have shown, no other nation discovering could acquire, by the mere act of finding these Islands, any rights which should infringe upon those already possessed by the Natives as the discoverers and Sovereigns thereof.

That the Jus Gentium in establishing the validity of "right by discovery," never contemplated a violation of equity, is proved by the very definite restrictions it imposes upon Nations, in the subjoined formula.

"The Law of Nations, then, will recognise the Proprietary right and the Sovereignty of a nation over only uninhabited countries which it shall have occupied really and in fact; in which it shall have

formed a settlement, or from which it shall be deriving an actual use." 15

Thus it would seem that in taking possession of newly-found but already peopled countries, nations discovering them have violated the strict principle of equity which is the basis of the Law of Nations. If a bona fide and complete possession be assumed with the consent of the Natives, the act is evidently one of Compact or Treaty, and wholly beside this argument. If the taking of possession, even still with the consent of the Natives, be a mere form, intended to legalise or further to secure that so-called inchoative right which is said to be insignificant as against the Aborigines, but all-significant as against third parties, and which one might suppose the act of discovery were in itself sufficient to confer, then the formula "in the name and for the use of the Sovereign" should be discarded, for it implies an encroachment upon the natural, independent rights of the Natives, who, if the words be held to have no meaning, as regards them, but a very direct significancy as regards third parties, can-

not possibly be expected to appreciate a political logic which sins against common sense, and which more enlightened nations would be as sorely puzzled to elucidate. Lastly, and as it has but too frequently occurred, when forcible possession is taken of a newly-discovered country, the act is clearly unjustifiable and oppressive. 16

The reasonableness, not less than the justice of our views, will be found confirmed by the additional conditions of which the Jus Gentium imposes the fulfilment upon a nation discovering, as essential to complete and legalise its right by discovery. With reference hereto, it says:

"But, it is a question to know if a nation may appropriate to itself thus, by a simple taking of possession, countries which it does not occupy really, and reserve to itself in this manner much more of them than it is able to people and to cultivate. It is not difficult to decide that such a pretension would be absolutely contrary to the natural right, and opposed to the views of Nature, which destining the

whole earth to the wants of men in general, gives to each nation the right of appropriating to itself a country, only for the uses which it derives therefrom, and not to hinder others from profiting thereby. The Law of Nations, then, will recognise the proprietary right and the Sovereignty of a Nation over only uninhabited countries which it shall have occupied really, and in fact, in which it shall have formed a Settlement, or from which it shall be deriving an actual use. In fact, when navigators have fallen in with desert countries, in which those of other nations had erected on their passage some monument to denote their taking of possession, they have taken no more heed of this vain ceremony than of the arrangement of the Popes, who divided a great part of the world between the Crowns of Castile and Portugal." 17

It will be urged that the foregoing argument is two-edged; that if it is to be received as valid against nations discovering, yet not occupying and using, then it must likewise hold good against the Natives, considered as the discoverers, but not using all the land, though in the virtual occupancy thereof. To this ob-

jection we reply, that the Aborigines have by their occupancy and use of a part of the soil, established their right of sovereignty and of property over the whole, and do not therefore come within the category in which other nations discovering, must be placed, and who would have to acquire, to the prejudice of the Natives, a right which these already possess, and of which they ought not to be deprived. 18

Thus it appears that with reference to newly-discovered, but desert and uninhabited countries, the right thereto by discovery clearly appertains, de jure et de facto, to the first comer. On the other hand, it has been a grand, fundamental error in the primitive relations of Europeans with Aboriginal tribes inhabiting countries theretofore forming no part of the recognised system of international polity, that they have ever applied to newly-discovered countries which they found already peopled, the law laid down by Vattel and by other eminent authorities, as applicable to only "desert islands or other desert lands."

In connection, however, with this important question, we must quote such additional evidence in support of the claims of a nation discovering, as may tend to throw light upon the

nature of this so-called inchoative right, which it is our object to attempt to define.

"There is," says Vattel, 19 "another celebrated question to which the discovery of the New World has principally given rise. It is asked, if a nation may lawfully occupy any portion of a vast country, in which are to be found only errant tribes, incapable, because of the smallness of their numbers, of inhabiting the whole. We have already observed in establishing the obligation of cultivating the soil, that these tribes may not appropriate to themselves more land than they require and than they are in a condition to inhabit and to cultivate. Their vague habitation in these immense regions, cannot pass for a veritable and legitimate taking of possession; and the people of Europe, too pent-up at home, finding a land whereof the savages had no particular need, and of which they made no actual and sustained use, were competent lawfully to occupy the same, and there to establish colonies. We have already said, the earth belongs to the human race for its subsistence. If each nation had desired, from the commencement, to appropriate to itself a vast country, therein to live only by hunting, fishing, and on wild fruits, our globe would not suffice for the tenth part

of the men who inhabit it at this day. One does not, then, exceed the views of Nature, in restricting savages to narrower limits. Nevertheless, one cannot but laud the moderation of the English Puritans, who the first established themselves in New England. Although provided with a Charter from their sovereign, they purchased of the savages the land they wanted to occupy. This praiseworthy example was followed by William Penn and the colony of Quakers which he conducted into Pennsylvania."

To accord to such a principle as this an unqualified assent, would be giving deliberate sanction to all those encroachments, violations, abuses and atrocities which have proved so fatal not only to the tribes of North American Indians, but to many others inhabiting various remote parts of the globe. Vattel himself particularly insists upon the fulfilment of certain conditions, before a European nation may seize upon the incult lands of Aboriginal tribes, and we reserve to ourselves to prove, presently, that if he asserts that the obligation of cultivating the earth is imperative on Savages, it is not less so on a civilized people; hence, although cordially assenting to the principles laid down in the Jus Gentium, namely; that nations discovering, may acquire lands in newly-found

and already peopled countries, we as distinctly proclaim ourselves at issue with those theorists who maintain that such a right is unconditional. If this principle were admitted, without restriction, into the inter-national code, any nation would be competent to seize upon the uncultivated lands appertaining to any other; and if the legitimate owners – civilized or savage – labouring under the impression (poor mistaken souls) that they had a prior right and a better to these same lands, were to assert such right by force of arms, then, the invading nation, holding the Jus Gentium in the one hand, and the sword in the other, might legitimately use the latter to despoil the natural occupant, and next proceed to justify the act by an appeal to the former.

As we shall have occasion to recur more fully to this subject, we will, for the present, simply assume that the point is conceded, and proceed to the further investigation of the "inchoative right by discovery," premising, however, that even were the foregoing principle admitted unconditionally, in respect of errant hunting tribes – which, however, we do not admit – it could in no manner apply to the New Zealanders, who are an agricultural

people, and fulfilling, in their natural condition, the duties which the Jus Gentium imposes as I imperative upon all nations.

It being predicated by the Law of Nations that occupation is necessary to perfect right by discovery, viz: the inchoative right in question, and such right being conceded in respect of new but unpeopled countries, we have next to enquire how far the occupation of new, but already peopled lands, can exist so as to be good as against third parties, without prejudicing the Aboriginal occupants.

"If," writes Grotius, 20 "in a country which has been occupied in the mass, (say generally) there remain any portions which have not been assigned to any person in particular, it should not for that reason be considered as vacant, for it belongs, in all cases, to him who is the first master of the country – I mean by this, the people or the King. Such is, in general, the ownership of rivers, lakes, fishponds, forests and uncultivated mountains.

"It is also unjust to appropriate to one's self, things which are in the possession of another, under the pretext of having discovered them; and that, even when their possessor should be a wicked man,

or entertain false sentiments with regard to the Divinity, or be naturally stupid, for one can appropriate to one's self, by right of discovery, only that which belongs to nobody."

So far, then, we perceive that "discovery" confers no proprietary title to any such lands as are already in occupancy, even though of a savage or heathen people; and Vattel likewise enforces the same principle when he asserts that "these tribes may not appropriate to themselves more land than they require, and than they are in a condition to inhabit and to cultivate;" for, given that they require the whole, and are in a condition to inhabit, that is, to people and to cultivate the same; or, again, that they retain it for their ultimate requirements – as the New Zealanders do, to wit – it is difficult to conceive how any nation can, by the mere act of discovery, acquire a right to occupy to their detriment: the onus probandi must, in such a case of claim, rest with the Aborigines, who, by any act of cession, voluntary or compulsory, thereby establish their prior title to the soil, which it is imperative upon all nations to respect. 21

It seems to be admitted by writers of authority on this subject, that the right by discovery alone, gives to the discovering nation no more than a preferable right of occupation to the exclusion of other nations who might claim by a similar title, but as against the native occupants, such claims cannot affect their rights to their own land.

"A right by occupation is therefore necessary to perfect a right by discovery, but may exist independently of it; and this right does not extend beyond those lands which the occupying nation shall actually use, and not to the appropriation of the lands which the Natives themselves occupy or enjoy." 22

Now this is simply enunciating what we have already proved, viz: that over already peopled countries newly found, a nation discovering them can assert no title at all; for it may not occupy that which is already occupied, by any appropriation to itself of that which is already appropriated en gros, as Grotius

has it. On the other hand, that is, admitting it, pro forma, as competent to acquire jurisdiction over lands not occupied nor enjoyed by the Aborigines, and that such jurisdiction be held to extend over only such lands as its people shall actually use, it is clear that, upon this principle, a third nation may in like manner acquire an equally valid claim over the remainder, if any; unless, in such case, the nation first discovering, take its stand upon its very indefinable, so-called inchoative right, and descend to the part of "the dog in the manger."

Thirdly, if this "preferable right of occupation to the exclusion of other nations who might claim by a similar title," be thus subservient to the will of the Natives, as indeed it must be, discovery clearly gives not any right at all, and can in no wise constitute a plea to coerce them to grant a preferable title to another, since any attempt to do so would be an infringement upon their natural independence; we must therefore consider it under some other aspect.

There are some expositors of the Law of Nations, who, desirous of respecting the rights of Aborigines, yet scrupulously jealous of those which they imagine discovery to confer, whilst

denying to the Crown any proprietary right over newly-found and already peopled countries – a right which they admit must operate to the prejudice of the Native owners – nevertheless vest in it all title to the lands, whether occupied or unoccupied, resting their doctrine upon what Blackstone calls a "legal fiction," viz., "that the King is the source of all title;" further, they maintain – fallaciously as we conceive – that this right being sovereign, that is, merely territorial, and not proprietary, is unprejudical to the Aborigines, since it cannot be said to deprive them of anything they possess.

But if discovery confer sovereign, that is, territorial rights, it clearly usurps that which was already possessed by another, viz: the Aboriginal Sovereignty; in other words, it violates the independence of the people by attacking their Sovereign privileges. The right absolute of sovereignty is either good against all parties, or good against none; it cannot be null as against the Aborigines, and valid as against its own subjects, or against those of a third power. If it be said only to secure to the Crown its rights of prerogative over such lands as its subjects may ultimately acquire in the newly-discovered

country, the assumption is simply superfluous; for these rights can never be in abeyance, where they exist, as over new and unpeopled territories acquired by discovery, and which the Crown of England will not allow its subjects to colonize without the royal license; in all cases asserting its claim to be considered as "the source of all title." On the other hand, these are of no account over such properties as are held by its subjects in a foreign, independent State, because there, another sovereignty obtains and has precedence of prerogative over all lands derived from it, having a prior claim to be regarded as the fountain-head of all title, within its own independent territory.

In some measure connected with this right of sovereignty assumed to be acquired by discovery, is that which some call a "right by possession;" to wit, Joseph Somes, Esq, who in his communication to Lord Palmerston, dated 7th Nov., 1839, maintains on various grounds, that the right of Great Britain to Sovereignty over New Zealand, was perfected by possession. The only formal act of taking possession, however, of these islands, was effected by Captain Cook, who could not, as we have shown, acquire for Great Britain a right to possess a

country already possessed by an Aboriginal race, whose claim as the first occupant was preferable and paramount. Mr. Somes, in alluding to the aforesaid right of sovereignty by possession, says:

"The Law of Nations, we believe, recognises no other mode of assuming dominion in a country, of which the inhabitants are so barbarous as to be ignorant of the meaning of the word sovereignty, and therefore incapable of ceding sovereign rights. This was the case with the New Zealanders, from whom it would have been impossible for Captain Cook to have obtained, except in mockery of the truth, a British Sovereignty by cession. Sovereignty by possession, is that which the British Crown maintains in a large portion of its foreign dependencies." 23

With deference to this opinion, the Law of Nations recognises no such mode of assuming dominion; it holds the natural and the Sovereign rights of Aborigines in higher respect than to sanction so gross a violation of them as

such an assumption would be. Very much, indeed, to the contrary, it lays it down as an axiom, that every self-governing nation, whatever its form, is a Sovereign state, whose rights are naturally the same as those of every other State; and with respect to its privilege of figuring in the great association of Nations, or in other words of forming an integral part of the great system of international polity, "it suffices that it be veritably Sovereign, that is that it govern itself, by its own authority and laws. 24 "

This point conceded, then, it is difficult to conceive, and impossible to reconcile with the grand fundamental principles of the Jus Gentium, how a Nation possessed of sovereign rights can, save by its own deliberate act, or by force, be deprived of them. Hence Captain Cook's act of taking possession of New Zealand could not confer, as against the Natives, Sovereign rights upon the Crown of Great Britain.

If Native tribes, that is, Aboriginal nations are to be shut out from the great system of in-

ter-national polity, and declared incompetent to the exercise of sovereign power over themselves, simply because they differ from us in customs and habits, then is there opened a wide field for oppression, injustice and inhumanity. Upon this principle, there would exist no safety for any people; for it would suffice to set up a standard of civilization, and to declare war against all who did not attain to it. The territories of the Chinese, of the African Kings, of the Rajahs of India, and even of more than one European Monarch might be invaded and taken possession of, with equally as much justice as the Islands of New Zealand and other lands inhabited by human beings, too "barbarous" perhaps to understand "the word Sovereignty, although by a singular anomaly in the positive exercise of all its attributes.

Granting, however, that Captain Cook's discovery conferred sovereign rights upon the Crown, the latter would exercise in New Zealand, and over the New Zealanders, all the rights of its prerogative to precisely the same extent as they are recognized in Great Britain. But not to enumerate them all, there is one which would be found most materially to affect the

natural rights of the New Zealanders, namely;

"It is a fundamental maxim of our laws, springing no doubt from the feudal origin and nature of our tenures, that the King was the original proprietor of all the lands in the kingdom, and consequently the only legal source of private title." 25

"(As well for the protection of the Crown as for the security of the subjects, and on account of the high consideration entertained by the law towards her Majesty,) no freehold, interest, franchise, or liberty, can be transferred by the Crown but by matter of record." 26

"The rule, therefore, adopted in our Colonies that the Queen has the exclusive right of extinguishing the native title to land, is only one member of a wider rule, that the Queen has the exclusive right of acquiring new territory, and that whatsoever the subject may acquire, vests at once, as already stated, in the Queen. And this, because in relation to the subjects the Queen is the only source of title." 27

Authorities might be multiplied in support of this asserted and peculiar privilege of the Crown's, in relation to the acquisition, by its subjects, of desert lands for colonizing; this however, would be needless; there is before us abundant evidence to show, that the first practical result of the unconditional assumption of British sovereignty would have been to annul the primitive native title to all the territory possessed by the New Zealand nation, individually and collectively, and to vest it in the Crown of Great Britain. In a word, the territorial jurisdiction over all the lands in that country would have passed to the Crown, to the detriment and the prejudice of the original possessors.

Now simple discovery cannot, as we have proved, confer a possessory title to lands already in occupancy, because the Law of Nations will not allow the rights of property to be infringed; nor can it confer sovereign, that is territorial rights, because such cannot be enjoyed without an infraction of the prerogative of the Native tribes, the first occupants of the soil, who, recognising no authority save that of their Chiefs, are entitled, by this one act alone, to retain their natural privileges as a Sovereign people.

All that discovery can do, and does, is to confer upon the nation discovering, rights absolute, Sovereign and proprietary, over newly-found but desert lands only.

The fact adduced by Mr. Somes, that Sovereignty by possession is that which the British Crown maintains in a large portion of its foreign dependencies," is no proof of the justice of its tenure, of the equity of the principle, nor of the soundness of this gentleman's argument.

It would nevertheless appear, that as a reward to enterprize, some privilege ought in justice to be accorded to a nation discovering a new though already peopled country; but if Sovereignty and independence mean anything, it is equally clear that any such privilege must be acquired of the Aborigines, and be restricted by such conditions as may be mutually agreed upon; and inasmuch as the capacity of the discovering nation to form settlements, and to acquire lands in the new country ought, in justice, to be subservient to the free acquiescence of the native Sovereignty, so, in respect of third parties, should their capacity to do the same, depend upon the sanction of the nation discovering, based always on the terms of its com-

pact with the Aboriginal people. If the latter, in respect to such third parties, shall have been left free to admit foreigners, then, we cannot conceive that simple discovery confers any right to coerce the natives to a different course; for it is plain that B., the discovering nation, ought neither to control the liberty of A, the nation discovered, to grant the nation desiring to settle, namely, C, the requisite permission, any more than it can, by any so-called inchoative right, limit C's liberty of acceptance. The only valid right discovery may be said to confer, is that of preventing any third party from forcibly assuming the sovereignty over the nation it has itself discovered: and as experience has shown that when Aborigines – more particularly the New Zealanders 28 – sell their land, they consider that their jurisdiction over it ceases altogether, their occupation, under such circumstances, following upon discovery, the territorial or sovereign right of the British Crown may naturally and

legitimately be said to extend over just so much territory as its subjects may have lawfully acquired, but no further. Moreover, this right would even then be exercised, not in virtue of discovery, but of the Crown's prerogative, which can never be in abeyance.

Since the evidence before us is conclusive against any nation's acquiring, by the mere act of discovering a new country, either any sovereign or proprietary right; since it is proved that it can acquire no right that shall be valid as against third parties, but null as against the Aborigines, without, to a considerable extent, despoiling these of something they possessed; it will then appear, that in practice, the formal act of taking possession of a newly-discovered and peopled country, is not, in point of fact, if it have any meaning at all, a mere ceremony intended to secure presumed rights inchoative so-called, as against third parties, and not as against the Aborigines. And herein lies the mischief; for we find that when Captain Cook took possession of New Zealand, he did so "in the name and for the use of His Majesty King George the Third," and it seems to have been the usage of all European nations to observe a similar course in favour of their respective

Sovereigns, and always without regard to the prior claims of the Aborigines, whom they affected to consider unworthy to enjoy, and incapable of exercising, the ordinary rights and privileges of an independent people.

We do not hesitate to affirm that on principle such proceedings are unjustifiable and indefensible, and have resulted in the most sanguinary conflicts when the Aborigines were sufficiently powerful to resist, for a time, the encroachments of the interlopers. On the other hand, when they have been weak, the most atrocious crimes have signalized the alien occupancy, the natives being wantonly butchered, with less remorse than cattle are slaughtered; or they have been hunted down like beasts of prey and destroyed; or, again they have fled from their ruthless pursuer, further and further into remoter and more desolate regions, where they have ultimately perished. The same fate has also overtaken them, sooner or later, when having made their submission, they have associated with the European, and striven to conform to his customs. 29

We have been betrayed into these observations in consequence of the manner in which right by discovery has been asserted, contrary to the spirit as to the letter of the Law of Nations. This right has been enforced in every instance, has been defended and admitted upon the faith of a law which specifically limits this right to such countries as are "uninhabited and without a master; whereas, in practice, whilst the principle has been strenuously advocated as a just one, the condition inseparable therefrom, to render it so, has been flagrantly disregarded, and nations discovering have taken possession equally of peopled as of unpeopled countries which their circum-navigators have fallen in with.

There can be no question that the observance of a more equitable course, would have been far wiser policy, for past experience has proved how expensive are the evils attendant upon the old system. When navigators have exhibited forbearance and mildness, tempered with firmness – aye, and even when they have not displayed these qualities but indulged rather in their opposites – Aboriginal Tribes have generally, if not always, been found willing to receive the European amongst them, and to enter

upon friendly intercourse with a view to present, ulterior, and permanent advantage. What necessity then for making Might the measure of Right? for violating the sacred right of nations, by disregarding the law that Equity has laid down, that Reason supports, and that Religion invokes in favour of the uncivilized inhabitants of the world?

8 Le Droit des Gens. Tome 1. c. xviii. sn. 207.

9 "Des iles ou d'autres terres desertes;" the term desert applying to both. (Ed)

10 Droit des Gens. Preliminaires, sn. 13.

11 Droit des Gens. Preliminaires, sn. 11.

12 Droit des Gens. Preliminaires. sn. 18-19.

13 Droit des Gens. Liv. 1. c. 1. sn. 4.

14 Vide the Parliamentary Debates on the New Zealand Question. Hansard.

15 Vattel, Droit des Gens. Liv. lr. Chap. xviii. 208.

16 Mattel. Droit des Gens. Preliminaires. sn. 13.

17 Vattel. Droit des Gens. Liv. I. Chap. XVIII, sn. 208.

18 Vattel. Droit des Gens. Preliminaires sn. 13.

19 Droit des. Gens. c. xviii. sn. 209.

20 Liv. II., ch. ii, sn. 9.

21 Vattel. Droit des Gens. Preliminaires. sn. 13.

22 Vide Appendix. Opinion of Mr. S. F. Woolmer.

23 Vide Correspondence with the Sec. of State, relative to New Zealand. April 1840.

24 Vattel. Droit des Gens. Preliminaires. sn. 18. – 19.

25 2 Bl. Com. 51 Co. Litt 65 a.

26 Viner Abs. Prerog : Bac Abs. Prerog.

27 Judgment of Mr. Justice Chapman. Vide Parliamentary Papers on New Zealand, Dec. 1847, page 47.

28 Vide Captain R. Fitzroy's Evidence before the Select Committee of the House of Lords. Parliamentary Papers, 1838. page 171.

29 Vide Report of Select Committee on Aboriginal Tribes.

CHAPTER III.

CHAPTER III.

HOW "RIGHT BY DISCOVERY" IS PERFECTED; AND HOW GREAT BRITAIN RENOUNCED ANY SHE MAY BE ASSUMED TO HAVE HAD, IN RELATION TO NEW ZEALAND.

WE have shown, in the preceding Chapter, first, that occupation is indispensable to perfect the right by discovery; secondly, that the right to occupy, following upon that by discovery, is lawful in respect of only newly-found territories which are unpopulated; and thirdly, that in respect of such as are peopled, a nation discovering the same, cannot arbitrarily acquire any right which shall be good as against third parties, and which shall not, to an equal extent, prejudice the Aborigines; because such a right, though it may be called merely inchoative, that is imperfect, or in its beginning, must refer to an entity; that is, either to a right of sove-

reignty or to a proprietary right, both of which are already enjoyed by the first occupants, who may not thus be despoiled of their natural privileges.

With reference to New Zealand, therefore, to which Great Britain is asserted to have originally had a claim by "right of discovery," it is of importance not to lose sight of these principles; for, if they be just, the act of Captain Cook in taking, (in the name and for the use of His Majesty King George the III.,) possession of the country he (Captain Cook) had found, could confer upon the Crown of Great Britain no right that should be valid against other nations, and still less against the New Zealand Aborigines, notwithstanding that the terms of the formula implied the assumption of such latent right against both.

As, however, it has been asserted that Great Britain did by discovery acquire rights of some kind over New Zealand – though we confess our inability to perceive on what principle – we must concede the point for mere argument's sake; but then we must likewise admit, with reference to any such rights, whether inchoative or absolute, that newly-discovered countries already peopled stand comprised, in the Law of

Nations, within the same category as do "desert islands and other desert lands;" an admission clearly contrary to the letter as to the spirit of the Jus Gentium, which nations discovering would seem to have grossly violated in establishing no distinction between the two. Conceding all this, nevertheless, we have seen that in order for a nation to perfect its "right by discovery" – its inchoative right so-called – it has important conditions to fulfil other than the mere act of taking possession; thus, to legalize her assumed but imperfect claim to New Zealand, it was imperative upon Great Britain to accomplish a real possession of the country, by some formal act of the Government's, speedily following upon that of Captain Cook's; and this was by the "formation of a settlement," or by the "continuing to derive some actual use" from the new territory.

It will hardly be contended that the frequenting of the ports of New Zealand by whaling- vessels; that the establishment of Missionary Stations in the country; that the residence there of certain British subjects – many of them of more than questionable character – and their purchases of lands from the Natives; all of them independent acts; were in fulfilment of

the requisite conditions enumerated: for, in none of the above-mentioned instances did the Crown identify itself with them.

If, however, there be any who maintain the reverse opinion, we would refer them back not only to Vattel, but to the most eminent Jurists, and likewise to the opinions of Judges whose authority has, even recently been added in confirmation – if such confirmation could be necessary – to the mass of evidence already conclusive enough against similar doctrine. The sum of this evidence may be given in the following words:

"Now, the law of England denies to any subject the right of forming a Colony without the license of the Crown." 30

We believe no one will assert that the license of the Crown was ever granted to the early British Settlers in New Zealand, to form a Settlement there; wherefore it is evident their act cannot be regarded as constituting the formal taking of possession necessary to the perfecting of the right by discovery.

The condition of occupancy closely following upon discovery, seems to be imperative.

"Next as to title by discovery, or, as it has been termed, by an eminent Jurist, 'le droit de premier occupant,' discovery gives an inchoate right, and if discovery be followed by occupation, i.e., occupation 'reellement et de fait,' there can be no doubt but that such an occupation would convey a title equally valid with that of conquest.

"This point merits closer consideration because I am inclined strongly to be of opinion that the English are to be considered as the first discoverers of the Islands of New Zealand, and that, consequently, by such discovery they acquired to themselves a primitive, or, as it were an inchoate right to the occupation and possession of the country.

"But on the other hand, nothing can be clearer to my apprehension than that the Government of England not only abstained from the exercise of any such right, and from the due completion of the title which the early discoverers had acquired for the Crown; but that, on the contrary, they virtually repudiated and abandoned any such title by elevating the Chiefs of New Zealand to the rank and condition of a sovereign power, and thus, by treating and acknowledging them, and their tribes, as component parts of a separate and independent State, they

placed them on a known position in the great commonwealth of independent States." 31

Notwithstanding that the eminent authorities here cited, make no distinction between newly-found countries which are already populated, and such as are desert and unpeopled, but give to nations discovering them, rights equally over both, they concur in establishing the necessity of occupation's following upon discovery. Hence it would seem that by her non-occupation of New Zealand, Great Britain forfeited the rights which discovery is assumed to have conferred upon her; and doubtless, had the country been unpeopled, such a plea might have been urged against her ultimate acquisition thereof: but as she found the new territory already inhabited, and under the domination of an Aboriginal Sovereignty, to the prejudice of which she could not, by discovery only, acquire any rights whatsoever, we cannot conceive that she can, in point of fact, be said to have forfeited that which she never

possessed, it having been wholly out of her power, equitably to comply with the conditions whereupon alone her rights could be based, namely; actual occupation and use.

On the other hand we contend, that if simple discovery can be said to confer any right at all, with reference to new countries already peopled, such a right is not inchoative or imperfect, that is, in its beginning, and dependent, to be perfected, upon occupation and use, but is, on the contrary, complete by the very act itself of the discovery, and good against all the world, if good at all. But whilst the natural independence of nations is to be religiously respected, and this without regard to their peculiar internal polity, it seems preposterous to assume that by simple discovery, Great Britain acquired a right of interference to prevent any third nation, to wit, the French or the American, from acquiring, by fair purchase of the Natives, landed possessions in New Zealand, since it is clear that such an interference would have amounted to a limitation of the right of these to sell their lands, or of that of allowing strangers, other than English, to settle in the country. Discovery, however, would have entitled her to interpose her authority in order

to prevent any third nation from forcibly acquiring territory there; but this right would have emanated from her act of discovery, complete in itself and conferring the perfect right of intervention, without necessity for her occupation and use of a country already in occupancy and in use.

But to resume our argument, we find that not only did Great Britain's rights by discovery become void in consequence of non-occupation, but that she subsequently – namely, thrice within the present century – distinctly recognized New Zealand as not forming any part of the British dominions, the fact being consigned in three separate Parliamentary documents.

The first of these is entitled "An Act for the more effectual punishment of murders and manslaughters committed in places not within His Majesty's dominions." It sets forth that: "Whereas grievous murders and manslaughters have been committed at the settlement in the Bay of Honduras, in South America," &c., "and the like offences have also been committed in the South Pacific Ocean, as well on the high seas as on land, in the Islands of New Zealand and Otaheite, and in other islands, countries, and places not within His Majesty's

dominions, by the masters and crews of British ships, and other persons, who have for the most part deserted from, or left, their ships, and have continued to live and reside amongst the inhabitants of those islands," &c; and the Act then goes on to provide for the punishment of offences so committed, "in the said islands of New Zealand and Otaheite, or within any other islands, countries, or places not within His Majesty's dominions, nor subject to any other European State or Power," &c. 32

The second enacts that the Supreme Courts in the Colonies of New South Wales and Van Diemen's Land may try offences, "committed in the Islands of New Zealand, Otaheite, or any other island, country, or place, situate in the Indian or Pacific Oceans, and not subject to His Majesty or to any European State," provided such offences were committed by British subjects. 33

The third repeats the foregoing enactment, in two places in the same clause specifying the extent of the jurisdiction of the Courts of

Judicature in New South Wales and Van Diemen's Land, adding "that all Persons convicted of any of the offences" aforesaid, shall be subject to the same penalties as though they had been committed in England." 34

But, besides the above-cited formal Acts of the Legislature, another, even yet more solemn, fully established the fact that Great Britain regarded the Islands of New Zealand as an independent Foreign State. The circumstances under which this important recognition took place, may best be gathered from the subjoined extract from the letter of James Stephen, Esqre., one of the Under-Secretaries for the Colonies, to John Backhouse, Esqre. It is dated Downing Street, 12th. December, 1838.

"In consequence of representations from the local authorities of New South Wales, it was thought advisable, in the year 1832, to appoint a person in the character of British Resident at New Zealand. The object in making this appointment was two-fold, to repress acts of fraud and aggression practised by British subjects against the natives, and, by acquiring

a beneficial influence over the various chiefs, to protect the lives and properties of British subjects engaged in fair trade with the natives." 35

The representations alluded to by Mr. Stephen were made in consequence of a letter written by William Yate, Esq., Secretary to the Church Missionary Society at New Zealand, and addressed to the Colonial Secretary in New South Wales. It contained the subjoined document, and urged its transmission "to the Secretary of State, in order to its being laid before His Majesty," 36 King William the IV.

As the document in question is both curious and characteristic, we give it in extenso.

"To King William, the Gracious Chief of England."

"KING WILLIAM. –

"We the Chiefs of New Zealand assembled at this place, called the Kerikeri, write to thee, for we hear that thou art the great chief of the other side the water, since the many ships which come to our land are from thee.

"We are a people without possessions. We have

nothing but timber, flax, pork, and potatoes, we sell these things, however, to your people, and then we see the property of Europeans. It is only thy land which is liberal towards us. From thee also come the Missionaries who teach us to believe on Jehovah God, and on Jesus Christ his Son.

"We have heard that the tribe of Marian 37 is at hand coming to take away our land, therefore we pray thee to become our friend and the guardian of these islands, lest the teazing of other tribes should come near to us; and lest strangers should come and take away our land.

"And if any of thy people should be troublesome or vicious towards us, (for some persons are living here who have run away from ships,) we pray thee to be angry with them that they may be obedient, lest the anger of the people of this land fall upon them.

"This letter is from us, from the Chiefs of the natives of New Zealand.

"The foregoing is a literal translation of the accompanying document."

(Signed) "WILLIAM YATE

"Secretary to the Church Missionary Society New Zealand."

To this document the signatures of thirteen Native Chief's were appended.

The result of this communication was a Despatch, dated 14th. June, 1832, from Lord Viscount Goderich, one of the Principal Secretaries of State, addressed, on the part of the King of Great Britain, to the Chiefs of New Zealand.

In this Despatch the King acknowledges the receipt of their letter, expressing his regret that the people of New Zealand should have suffered injury at the hands of his subjects, and it goes on to say, that:

"In order to afford better protection to all classes, both natives of the Island of New Zealand, and British subjects who may proceed or may be already established there for the purposes of trade, the King has sent the bearer of this letter, James Busby, Esq., to reside amonst you, as his Majesty's Resident, whose duties it will be to investigate all complaints which may be made to him. It will also be his endeavour to prevent the arrival amongst you of men who have been guilty of crimes in their own country, and who may effect their escape from the place to which they may have been banished, as likewise to apprehend such persons of this description as may be found at present at large.

In return for the anxious desire which will be manifested by the British Resident to afford his protection to the inhabitants of New Zealand against any acts of outrage which may be attempted against them by British subjects, it is confidently expected by His Majesty that, on your part, you will render to the Resident that assistance and support, which are calculated to promote the object of his appointment, and to extend to your country all the benefits which it is capable of receiving from its friendship and alliance with Great Britain."

The concluding sentence is most significant, clearly establishing the fact of a compact entered into with New Zealand, as with any civilized and independent State.

Thus accredited, Mr. Busby proceeded to New Zealand, in his capacity of British Resident; and on the 13th. April, 1833, we find the Governor of New South Wales, Sir Richard Bourke, addressing to him, by command of Lord Ripon, certain instructions for his guidance, in which New Zealand is expressly mentioned as a foreign and an independent country.

"You will also announce your intention of remaining among them, and will claim the protection and privileges which you will tell them are accorded,

in Europe and America, to British subjects holding in foreign states situations similar to yours." 38

"You are aware that you cannot be clothed with any legal power or jurisdiction by virtue of which you might be enabled to arrest British Subjects offending against British or Colonial law in New Zealand. It was proposed to supply this want of power, and to provide for the enforcement of the criminal law, as it exists among ourselves, and further to adapt it to the new and peculiar exigencies of the country to which you are going, by means of a Colonial Act of Council grafted on a Statute of the Imperial Parliament. Circumstances which I am not at present competent to explain, have prevented the enactment of the Statute in question." 39

The circumstances alluded to were simply these: that in the month of June of the preceding year, in 1833, a Bill was brought before the House of Commons, for the prevention of crimes committed by His Majesty's Subjects, "in New Zealand and in other islands in the Pacific, not being within His Majesty's dominions;" this Bill was thrown out, because

Parliament could not lawfully legislate for a foreign country.

The next step appears to have been the desire of the New Zealanders to possess a flag; accordingly, on the 29th of April 1834, Sir R. Bourke transmitted to Lord Stanley, a proposal from Mr. Busby, for establishing a national flag, for the tribes of New Zealand "in their collective capacity," and advised that ships built in the Island, and registered by the Chiefs, should have their registers respected in their intercourse with the British possessions. Sir R. Bourke reported that he had sent three patterns of flags, one of which had been selected by the Chiefs, that the Chiefs had accordingly assembled, with the Commanders of the British and three American ships, to witness the inauguration of the flag, at which the officers of H.M.S. Alligator were also present. The flag had been declared to be "the National Flag" of New Zealand, and being hoisted, it was saluted with twenty-one guns, by the Alligator, a British ship of war.

Captain Fitzroy furnishes important details in connection with this ceremony; we subjoin an abstract from his evidence before the Com-

mittee of the House of Lords, 11th. of May, 1838.

"The Alligator went, with Captain Lambert, and Three different Flags were presented to a number of the Chiefs who were assembled, and they chose one of those Flags for their own, with an understanding that Great Britain would acknowledge it, and afford it her Protection."

"You did not understand that the giving them that Flag intimated any Sovereignty on the part of England?"

"No; so far from that, there was a distinct recognition of the Independence of the Chiefs." 40

This statement, be it here said, in conjunction with the report of Sir R. Bourke, palpably refutes the argument of the Rev. S. Hinds, D.D. 41 to the effect "that the very assumption on the part of Great Britain, of a Right to give that Flag, supposes the New Zealanders not to be altogether a Sovereign Power;" and the fact mentioned by Captain

Fitzroy is fully borne out by the formal declaration of the Independence of their country, which thirty-five of the hereditary Chiefs of the Northern Island made at Waitanga, in the Bay of Islands, on the 28th of October, 1835, and wherein they entreat that His Majesty "will continue to be the Parent of their infant State, and that He will become its Protector from all attempts upon its Independence." 42

The whole of these acts were duly confirmed by the Colonial Government. We find that "on the 21st of December, 1834, a despatch was addressed to Sir R. Bourke by Lord Aberdeen, approving all those proceedings, in the name of the King, and sending a copy of a letter from the Admiralty, stating that they had instructed their officers to give effect to the New Zealand Registers, and to acknowledge and respect the national Flag of New Zealand." 43

The foregoing facts would rather tend to

prove, notwithstanding the rights over New Zealand which have been asserted for Great Britain, by virtue of simple discovery, that she never considered herself really possessed of any; for it is difficult to conceive she would have relinquished them upon the plea of not desiring to extend her colonial dependencies, when she actually proceeded to annex to these, the territory of New South Wales, Norfolk Island, and other lands which Captain Cook had discovered. Probably – though her claim to New South Wales was not a whit better founded than any she might have advanced in respect to New Zealand – she may have entertained scruples on the score of entering upon the occupancy of a country thickly populated, which scruples could be more conveniently set aside in the case of New South Wales, where the inhabitants were not numerous, and were dispersed over and occupied a very much larger extent of territory: so true is it that weakness is too frequently made a plea for injustice.

We have possibly entered more fully into particulars than the circumstances of the case may seem to have warranted, but it must be borne in remembrance that we are bound to bring forward the completest evidence in sup-

port of the views we have set forth. We shall add a few words of Lord John Russell's, in his reply to the communication of Joseph Somes, Esqre., to Lord Palmerston, and already once alluded to. In this letter, after recapitulating the various acts above enumerated, and referring to the assumed right of Great Britain to the Sovereignty over New Zealand, his lordship says: 44

"If these solemn Acts of the Parliament, and of the King of Great Britain, are not enough to show that the pretension made by this Company, 45 on behalf of Her Majesty, is unfounded, it might still further be repelled by a minute narrative of all the relations between New Zealand and the adjacent British Colonies, and especially by the judicial decisions of the superior Courts of those Colonies. It is presumed, however, that, after the preceding statement, it would be superfluous to accumulate arguments of that nature, and the rather because they could not be intelligibly stated without entering into long and tedious details."

We ought not, however, in justice to Mr. Somes, to refuse consideration to the facts he brings forward in support of his assertion of the validity of British Sovereignty over New Zealand; the less so, that he appears, at first sight, to have made out a strong case. We will quote his words:

"In the year 1787, a Royal Commission was granted to Captain Philip, appointing him, in pursuance of the British Sovereignty in possession, which had been established by Captain Cook, 'Captain-General and Governor-in-Chief in and over the Territory of New South Wales and its dependencies. This territory was described in the Commission as, "extending from Cape York, Lat. 11 deg. 37' S.; to the South Cape; Lat. 43 deg. 30' S.; and inland to the Westward as far as 135 deg. E. Long, comprehending all the Islands adjacent in the Pacific Ocean within the latitudes of the above-named Capes.' This is the act by which the Crown first assumed the Government of New South Wales and the other barbarous lands of which Captain Cook had taken possession in the name of the King. The Islands of New Zealand are as clearly within the prescribed limits as Norfolk Island, Van Diemen's Land, or even New South Wales itself.

"On the 9th of November, 1814, the Governor

and Captain-General of New South Wales and its dependencies, acting on the representation of the Crown, by public proclamation, declared New Zealand to be a Dependency of his Government, and by regular Commission of dedimus potestatem, appointed Justices of the Peace to act there. Some of the Magistrates so appointed were Aboriginal Natives of the country. It is plain that they were treated as British subjects. In 1819, again, Governor Macquarrier appointed an English Magistrate in New Zealand. This Justice of the Peace exercised the authority so bestowed on him, by apprehending offenders and sending them for trial to the seat of Government."

With regard to the first fact advanced, that the degrees of Latitude and Longitude mentioned as comprising the dependencies of New South Wales, included the New Zealand Islands likewise, it proves nothing, because it proves at once too much and too little. "All the islands adjacent, in the Pacific Ocean, within the latitudes" of Cape York and South Cape, would comprehend a jurisdiction extending as far as the West Coast of South America, inclusive of the Spanish discoveries; an assumption of dominion that the Commission

certainly did not pretend to. On the other hand 43 deg. 30' S. Latitude would exclude the whole of Stewart's Island (New Leinster) and a large portion of the Middle Island, (New Munster) as far North as Pigeon's Bay, on the East Coast, inclusive, of course, of Otago and Bank's Peninsula, and of Dusky Bay on the West Coast. Thus, in the latter respect, the Commission would have fallen as far short of the powers Mr. Somes claims for it, as, in the other case, it would have exceeded them.

In the next place, the above-mentioned gentleman alludes to the appointment of Native Justices of the Peace; and in another, of the enforcement of British Authority by means of ships-of-war. The subsequent acts of the British Government, however, show that nothing more was contemplated than the establishment there of an available power to punish English delinquents who had escaped from the contiguous penal settlements, or deserted from Whalers, and proceeded to commit depredations and offences to the prejudice of the Natives, and who could not have been apprehended without the assistance of the Aborigines, some of whom were, in consequence, armed with a legal authority necessary not less to preserve

the interests of the British, than to protect their own.

Mr. Somes goes on to state that "in 1823, a British Act of Parliament (4 George IV. cap. 97) 46 extended the jurisdiction of the Courts of New South Wales to New Zealand, by name. Now the 4 George IV. cap. 96. expressly mentions New Zealand as "not being within His Majesty's dominions," as being not subject to any other European State or Power," and yet extends to New Zealand the jurisdiction of the Courts of New South Wales, giving them power to try offenders for crimes committed there, provided that such offenders are British subjects.

Under, these circumstances, we conceive Lord John Russell's reply to Mr. Somes, to be conclusive against any assumption, on the part of the Crown of Great Britain, of Sovereignty over New Zealand, either by discovery or by possession, which Mr. Somes argues the above acts implied.

To return, however, to Mr. Busby, it does not appear that his presence in New Zealand was productive of the advantages which had

been anticipated; and in consequence of the increasing difficulties of his position, and of his diminishing influence, Sir R. Bourke made a communication to Lord Glenelg, on the 9th of Sept., 1839, enclosing a letter from Captain Hobson, suggesting the necessity of a change of policy. In consequence of this communication, Lord Glenelg entered into correspondence with Viscount Palmerston, Secretary for Foreign Affairs, and the result was the appointment of Captain Hobson in the capacity of Her Majesty's Consul at New Zealand.

If before there had existed a doubt of Great Britain's having never assumed over New Zealand Sovereign rights, by virtue of discovery, this one circumstance would establish the fact beyond dispute. The declaration, however, of the substantive independence and sovereignty of New Zealand was distinctly renewed in the letter of Instructions sent to Captain Hobson from the Marquis of Normanby, on the 14th of August, 1839; but as we shall have occasion immediately to refer more particularly to it, we leave the question decided thus far, as we are now about to enter upon another, and the most important era of the history of these Islands.

30 Regina v. J. J. Symonds. Judgment of the Chief Justice. Parliamentary Papers on New Zealand, Dec. 1847 – page 9.

31 Vide Opinion of Dr. Phillimore – Appendix. Also of S. F. Woolmer Esq.

32 57 George III, cap. liii.

33 4 George IV, cap, xciii, sec, 3.

34 9 George IV cap, lxxxiii, sec, 4.

35 Correspondence with the Secretary of State, relative to New Zealand. Parliamentary Papers, 1840. Iden, page 7.

36 Correspondence with the Secretary of State, relative to New Zealand. Parliamentary Papers, 1840. Iden, page 7.

37 The French: so called by the Natives, from the name of the Captain who was cut off in June, 1772.

38 Correspondence with the Secretary of State, relative to New Zealand – Par. Papers. 1840, page 4.

39 Idem – Page 5.

40 Report on New Zealand From the Lords. Aug. 1838. Page 166.

41 Idem. Page 129.

42 Report an New Zealand. From the Lords. Aug. 1838. Page 179.

43 Correspondence with the Secretary of State relative to New Zealand. 1840. Page 69.

44 Correspondence with the Secretary of State relative to New Zealand. 1840. Page 69.

45 The New Zealand Company.

46 Qy. Chp. 96.

CHAPTER IV.

CHAPTER IV.

UNDER WHAT CONDITIONS GREAT BRITAIN ACQUIRED THE SOVEREIGNTY OVER NEW ZEALAND.

THE circumstances under which Great Britain finally acquired the Sovereignty over New Zealand, are of such recent occurrence, we might almost be excused from entering into detail, were it not that we desire to present as complete a political history of this interesting Colony, as can be gathered from the published documents referring thereto. And first, then, it would seem, that the various causes which had rendered necessary the including of New Zealand within the jurisdiction of the Courts of New South Wales, and the appointment of a British Resident, existed in undiminished activity – even to an aggravated extent – up to

the month of August 1839, when we find additional and most cogent reasons supervening, and necessitating, on the part of Great Britain, the adoption of a more decided and definite policy; namely, the nomination of a Consul at New Zealand, armed with special and peculiar powers.

"The first object contemplated in making this appointment," writes the Marquis of Normanby to the Lords Commissioners of the Admiralty, 1st July 1839, 47 "is to obtain from the Native Chiefs the cession to Her Majesty of certain parts of those islands, which it is proposed should be there added to the Colony of New South Wales as a dependency of that government, when Captain Hobson would assume the character of Lieutenant-Governor."

A most important admission, this, not only fully establishing the fact of the previous independence of New Zealand as a State, but showing that the Crown contemplated a definite and particular acquisition of the Sovereignty, proceeding in much the same manner as in a transaction of bargain and sale.

The reasons which called forth this act of personal intervention, on the part of the British Crown, are exhibited in the Marquis of Normanby's Letter of Instructions to Captain Hobson, dated from Downing-street, Aug. 14, 1839. 48

We append the most important of them:

"It is sufficient that I should generally notice the fact, that a very considerable number of Her Majesty's subjects have already established their residence and effected settlements there, and that many persons in that kingdom have formed themselves into a society, having for its object the acquisition of land, and the removal of emigrants to those islands.

"The necessity for the interposition of the Government has become too evident to admit of any further inaction. The reports which have reached this office within the last few months, establish the facts, that about the commencement of the year 1838, a body of not less than two thousand British Subjects had become permanent inhabitants of New Zealand; that amongst them were many persons of bad or doubtful character – convicts who had fled from our penal settlements, or seamen who had de-

serted their ships; and that these people, unrestrained by any law, and amenable to no tribunals, were alternately the authors and the victims of every species of crime and outrage. It further appears that extensive cessions of land have been obtained from the natives, and that several hundred persons have recently sailed from this country to occupy and cultivate those lands. The spirit of adventure having thus been effectually roused, it can no longer be doubted that an extensive settlement of British subjects will be rapidly established in New Zealand; and that, unless protected and restrained by necessary laws and institutions, they will repeat, unchecked in that quarter of the globe, the same process of war and spoliation, under which uncivilized tribes have almost invariably disappeared as often as they have been brought into the immediate vicinity of emigrants from the nations of Christendom. To mitigate and, if possible, to avert these disasters, and to rescue the emigrants themselves from the evils of a lawless state of society, it has been resolved to adopt the most effective measures for establishing amongst them a settled form of civil government. To accomplish this design is the principal object of your mission."

His Lordship then makes the following qualified admission of the independence of the New Zealand Islands:

"I have already stated that we acknowledged New Zealand as a sovereign and independent state, so far as it is possible to make that acknowledgment in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty's immediate predecessor, disclaims for herself and for her subjects, every pretension to seize on the islands of New Zealand, or to govern them as part of the dominion of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, shall be first obtained. Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious, and little more than nominal, and persuaded that the benefit of British protection, and of laws administered by British judges, would far more than compensate for the sacrifice by the natives, of a national independence, which they are no longer able to maintain, Her Majesty's Government have resolved to authorize you to treat with the Aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole or any part of those islands

which they may be willing to place under her Majesty's dominions."

With reference to the introductory sentence of the foregoing paragraph, we cannot but observe that this qualified admission of the independence of the New Zealanders, appears to us uncalled for; and to have implied, on the part of the Government, some after-thought as to its validity, simply on the ground of an assumed imperfect organization of the natives as a people; and although Lord Normanby does indeed presently assert such an admission to be "binding on the faith of the British Crown," he persists in qualifying it, in spite of Vattel and other learned Jurists who have written on the Law of Nations, and who maintain that the independence and the natural rights of any Aboriginal people cannot be in the slightest degree affected or be prejudiced, in their intercourse with civilized nations, whose perfect political equals they are, from the moment that they govern themselves without foreign interference.

In adverting, secondly, to the solemn declaration made by the officer of the Crown, namely; that the Sovereign of Great Britain

disclaimed "for herself and for her subjects, every pretension to seize on the islands of New Zealand, without the free and intelligent consent of the Natives," we wish this fact to be particularly borne in mind, as we shall presently have to bring it into antagonism with the conduct of certain officials who were employed to carry out the foregoing instructions, and with the modifications with which they appear to have been subsequently trammelled. To the latter we shall confine ourselves.

It would appear then, that Captain Hobson experienced some degree of embarrassment when he came to consider the tenor of his instructions, and with a view to dispel his doubt, and to obviate misunderstandings, wrote for explanations to Mr. Labouchere, the Under-Secretary of the Colonial Department. The following are extracts from his letter: 49

"I perceive," he writes, "that no distinction is made between the Northern and Southern Islands of New Zealand, although their relations with this country, and their respective advancement towards civilization are essentially different.

"The declaration of the independence of New Zealand was signed by the united chiefs of the Northern islands only, (in fact, only of the northern part of that island) and it was to them alone that His late Majesty's letter was addressed on the presentation of their flag; and neither of these instruments had any application whatever to the Southern Islands. It may be of vast importance to keep this distinction in view. Not as regards the natives, towards whom the same measure of justice must be dispensed however their allegiance may have been obtained: but as it may apply to British Settlers, who claim a title to property in New Zealand, as in a free and independent State.

"I need not exemplify here the uses that may hereafter be made of this difference in their condition; but it is obvious that the power of the Crown may be exercised with much greater freedom in a country over which it possesses all the rights that are usually assumed by first discoverers, than in an adjoining State which has been recognized as free and independent. In the course of my negotiations, too, my proceedings may be greatly facilitated by availing myself of this disparity. For, with the wild savages in the Southern islands, it appears scarcely possible to observe even the form of a treaty, and there I might be permitted to plant the British flag in virtue of those rights of the Crown to which I have alluded."

In answer to the foregoing observations, the Marquis of Normanby writes thus to Captain Hobson: 50

"The remarks which I have made respecting the independence of the people of New Zealand, relate, as you correctly suppose, to the tribes inhabiting the northern island only. Our information respecting the southern island is too imperfect to allow me to address to you any definite instructions as to the course to be pursued there. If the country is really as you suppose, uninhabited, except but by a very small number of persons in a savage state, incapable from their ignorance of entering intelligently into any treaties with the Crown, I agree with you that the ceremonial of making such engagements with them would be a mere illusion and pretence which ought to be avoided. The circumstances noticed in my instructions, may perhaps render the occupation of the Southern island a matter of necessity, or of duty to the natives. The only chance of an effective protection will probably be found in the establishment by treaty, if that be possible, or if not, then in the assertion, on the ground of discovery, of her Majesty's Sovereign rights over the island. But in my inevitable ignorance of the real state of the case,

I must refer the decision in the first instance to your own discretion, aided by the advice you will receive from the Governor of New South Wales."

Now there cannot exist the shadow of a doubt but that the noble Marquis and Captain Hobson were actuated by humane motives, the one in drawing up these instructions, the other in his desire to have them explicitly defined; but it is not less clear that both erred in sound policy, in departing from the strict principles of equity which the Law of Nations defines as the only true and legitimate basis of the political relations of one independent state with another; and this we hold that they did when they introduced the above modifications into the instructions by which Captain Hobson was to abide.

Setting aside, in the first place, the question of the declaration of independence, which clearly comprised only such Chiefs and Tribes as were parties thereto; and in the second, the qualified admission of the independent rights of the Natives of the Islands, generally; no plea could possibly invalidate or annul the solemn repudiation "of all pretension on the part of Her Majesty, to seize upon the islands of New

Zealand and govern them, without the intelligent consent of the natives." Yet, in the face of this solemn declaration, and dependent only upon the possibility of concluding a treaty with the Natives of the Southern islands – who were merely presumed to be incompetent to understand its tendency – we perceive that Sovereign rights, on the plea of discovery, were assumed over them, and implied to be only in abeyance.

Now we have proved that no such rights ever justly belonged to Great Britain; on the other hand, we arrive at a knowledge of the nature of that right by discovery which has been qualified as inchoate, that is, imperfect; namely, that it is assumed to be a Sovereign right; consequently, if it were valid at all, it was good not only against third parties, but against the Natives themselves, and to the prejudice of their natural Sovereignty.

We do not hesitate to assert that such an assumption is opposed to the spirit of the Law of Nations, and being enforced, amounts to a gross infraction of it.

We are, indeed, wholly at a loss to comprehend by what subtle reasoning the noble Secretary of State for the Colonies arrived at the conclusion, on the 15th August, that the

Crown of Great Britain had, over the Southern Islands of New Zealand, latent rights by discovery which, under certain conditions, Captain Hobson was to assert, after he, (Lord Normanby) had solemly disclaimed, only on the 14th of the same month, every pretension on the part of Her Majesty, "to seize upon the Islands of New Zealand, and to govern them, without the consent of the Natives." Still less can we understand why, if the Crown possessed any such rights at all, they were to be asserted over only those parts of New Zealand, which were presumed to be thinly peopled, and by less intelligent tribes, when these rights, if valid at all, were equally so over the Northern Island, save and except such portions of it as were under the the jurisdiction of the Chiefs and Tribes comprised in the declaration of independence.

The importance of the distinction between the islands, which Captain Hobson urged, affected more immediately, as it would seem, the British Settlers who claimed property in New Zealand as in a free and independent State; but its first effect would have been to create an anomaly in the position of British subjects there, embarrassing to themselves, and most

perplexing to the shrewd Natives, who having in every case sold the land, since many possessed territory in both Islands, might naturally enough fail to comprehend how they could be Sovereign in one part of their country, yet have no rights at all in another, though both portions belonged to them. It appears to us that this was establishing, at the very outset, an insuperable bar to the dispensing of "the same measure of justice" towards the Natives, inasmuch as in the one case they were to become British subjects by cession, and in the second, British subjects by compulsion. On the other hand, it was poor earnest of the "effective protection," Natives were to have secured to them by the assumption of British Sovereignty, the most apparent result of which, in Aboriginal Legislation, has hitherto been the deeper debasement, the vitiation, and finally the extinction of Native Races.

To compensate, in some degree, for these anomalies and contradictions, without doubt arising from the perplexity of the position and from the open antagonism between principle and colonial policy, less than from any wilful intent, of prejudicing the New Zealanders, Captain Hobson was specially urged to act

with candour and unreserve, having indeed been chosen in consequence of the firm reliance reposed in his "uprightness and fair-dealing;" and it must be admitted that his task was a difficult one; for the line of conduct he had to observe, was not reconcileable to the strict principles of equity which ought to form the basis of inter-national policy, more particularly with reference to Aboriginal Races, who are less able to resist encroachment upon their natural rights, of which they entertain a very clear appreciation, notwithstanding their inability at all times to define them to the satisfaction of subtle, political Theorists.

The next important subject to which the instructions to Captain Hobson referred, was the acquisition of lands, by British subjects:

"It is further necessary," writes the Marquis of Normanby, "that the Chiefs should be induced if possible, to contract with you, as representing Her Majesty, that henceforward no lands shall be ceded, either gratuitously or otherwise, except to the Crown of Great Britain."

His Lordship then briefly adverts to the

reasons which rendered this proceeding necessary, and adds:

"You will, therefore, immediately on your arrival, announce, by a proclamation addressed to all the Queen's subjects in New Zealand, that Her Majesty will not acknowledge as valid, any title to land which either has been, or shall be hereafter acquired, in that country, which is not either derived from, or confirmed by, a grant to be made in Her Majesty's name, and on her behalf. 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."

The object of this arrangement was to strike a fatal blow at the system of land-jobbing by wholesale which obtained in New Zealand, and the result of which was the acquisition of immense tracts that remained "an unprofitable or rather a pernicious waste." It was likewise intended to operate as a check upon the proceedings of a certain powerful Colonizing Association at home, under whose auspices large numbers of Emigrants were being transported to New Zealand, there to

form Settlements; and this, in spite of the announcement made by the Government that such a course was irregular, and contrary to Law.

His Lordship having further elaborated upon this particular point, furnishes Captain Hobson with very definite instructions relatively to the mode in which he was to acquire for the Crown, the waste lands of the country; and to this portion of his Lordship's letter, we would call the attention of the Reader, as we shall have occasion to recur to the subject, when we come to treat of the New Zealand Charter, and of the document that accompanied it.

The noble Marquis thus continues:

"Having, by these methods, obviated the dangers of the acquisition of large tracts of country by mere land-jobbers, it will be your duty to obtain, by fair and equal contracts with the natives, the cession to the Crown of such waste lands as may be progressively required for the occupation of Settlers resorting to New Zealand. All such contracts should be made by yourself, through the intervention of an officer expressly appointed to watch over the interests of the Aborigines as their protector. The re-sales of the purchases that may be made, will provide the funds necessary for future acquisitions; and beyond the original investment of a comparatively small

sum of money, no other resource will be necessary for this purpose. I thus assume that the price to be paid to the natives by the local Government will bear an exceedingly small proportion to the price for which the same lands will be re-sold by the Government to the Settlers. Nor is there any real injustice in this inequality. To the natives, or their chiefs, much of the land is of no actual use, and, in their hands it possesses scarcely any exchangeable value. Much of it must long remain useless, even in the hands of the British Government also, but its value in exchange will be first created, and then progressively increased, by the introduction of capital, and of Settlers from this country. In the benefits of that increase the natives themselves will gradually participate.

"All dealings with the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith, as must govern your transactions with them for the recognition of Her Majesty's Sovereignty in the Islands. Nor is this all: they must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory, the retention of which, by them, would be essential, or highly conducive to their own comfort, safety or subsistence. The acquisition of land by the Crown for the future settlement of British Sub-

jects must be confined to such districts as the natives can alienate, without distress or serious inconvenience to themselves. To secure the observance of this – will be one of the first duties of their official protector."

We have quoted at length the foregoing portion of his Lordship's instructions, because of the great importance that the matter to which they refer subsequently assumed, and which continues to be a fruitful source of contention. Comment upon them would be superfluous here, for the reasons given above; we will therefore advert succinctly to the remaining points comprised in this document.

Reference being made to the inconvenience of then giving a separate constitution to New Zealand, it was determined to annex to New South Wales, as a dependency of the latter Government, whatever territories in New Zealand might be acquired in Sovereignty by the Queen of Great Britain, specially exempting the new Colony from ever becoming a penal settlement. Under Her Majesty's sign manual, Captain Hobson was to be constituted Lieutenant-Governor of that part of the New South Wales colony which might be thus ex-

tended, and certain other functionaries were to be nominated for the convenience and the transaction of public business. The education and the religious instruction of the Natives were likewise provided for, under a series of heads of enactments, commendable as much on account of their comprehensive character, as for their liberality and large humanity of principle; the discharge of the most responsible portion of these duties being delegated to the Missionaries, under the direction of the Lieutenant-Governor, who was strictly enjoined to interdict cannabalism and human sacrifice, and to adopt, in conjunction with the Missionaries, every possible means of elevating the Natives in the social scale. Various other topics on diverse matters were also briefly adverted to, the Marquis of Normanby abstaining to enter into detail, and to speak definitively upon these subjects, on which, for want of the necessary information, he felt incompetent to form an opinion; wherefore, relying upon Captain Hobson's judgment, zeal, and experience, aided by the counsels of Sir George Gipps, Governor of New South Wales, his Lordship finally left, to Captain Hobson's discretion, the arrangement of all such questions as could not then be resolved.

We have already shown, that in some respects, Captain Hobson did not consider his instructions sufficiently explicit, and requested explanations. It is not, however, necessary that we should enter into detail upon this head, having already alluded to the most important of the points respecting which his doubts had arisen. Suffice it to add, that Captain Hobson having received satisfactory replies to his special queries, departed upon his mission.

47 Corres. with the Sec. of State, relative to New Zealand. Par. Papers, 1840 – p. 35.

48 Par. Papers, 1840 – page 37.

49 Correspondence relative to New Zealand. Par. Papers, 1840, page 42.

50 Parl. Papers on New Zealand. 1840, page 44.

CHAPTER V.

CHAPTER V.

THE TREATY OF WAITANGI, AND ITS PROVISIONS.

IT is of great importance that we should now direct attention to the proclamations issued by Sir George Gipps, immediately upon Captain Hobson's departure from New South Wales.

The first of these announced that Her Majesty had revoked, of certain letters patent of the 5th of October, 1837, defining the limits of the territory called New South Wales, so much as related to the limits aforesaid, and that by certain new letters patent of the 15th of June 1839, Her Majesty had extended these limits, which would now be made to include "any territory which is or may be acquired in Sovereignty by Her said Majesty, Her heirs, or

Successors, within that group of islands in the Pacific Ocean, commonly called New Zealand, lying between the Latitude of 34 deg. 30" and 47 deg. 10" South, and 166 deg. and 179 deg. East Longitude from Greenwich," &c.

The second, after a recapitulation of the former preamble, &c., announced that "Her Majesty, reposing especial trust and confidence in the prudence, courage, and loyalty of William Hobson Esquire, Captain in Her Majesty's navy, had appointed him to be Her Majesty's Lieutenant-Governor in and over that part of Her Majesty's territory which is or may be acquired in Sovereignty by Her Majesty, Her heirs or Successors, within the group of islands in the Pacific Ocean, commonly called New Zealand." &c.

The third related to the acquisition of lands. Her Majesty thereby declaring that she would not acknowledge, as valid, any title to land "which either has been or shall be hereafter acquired in New Zealand, which is not derived from or confirmed by a grant to be made in Her Majesty's name and on Her behalf, but that care shall be taken at the same time to dispel any apprehension that it is intended to dispossess the owners of any land acquired on

equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community, to be instigated and reported on by commissioners to be appointed by "Sir George Gipps; and all purchases of land made after the date of that proclamation, were to "be considered as absolutely null and void, and neither confirmed nor in any way recognized by Her Majesty."

It cannot fail to be remarked that the two first of the foregoing documents imply a distinct recognition of the independence of the whole group of islands called New Zealand, without any exception; and that no latent claim to the Sovereignty of any portion of them is advanced on the ground of "right by discovery," but that on the contrary, the sovereignty, either over the whole or over any part of them, is expressly made to depend upon the acquisition thereof, from and after the date of the 14th day of January 1840. There can be no difficulty in determining the precise import of the words "which is or may be acquired in sovereignty," for it is clear that if, on the ground of discovery or any other, the Crown had considered itself possessed of the remotest claim to exercise jurisdiction over any part of New Zealand,

such claim would have been specifically announced at this time, and its extent distinctly defined.

Captain Hobson's first public act, on his arrival at the Bay of Islands, situated in the north-eastern district of the Northern Island of New Zealand, was, as we learn from his despatches to Sir George Gipps, 51 to invite all British subjects to meet him at the church, at Kororarika, on the 30th of January, the day after his arrival, on which occasion he read to them Her Majesty's commission under the Great Seal, extending the limits of the colony of New South Wales; and Her Majesty's commission under the Royal Signet and sign manual, appointing him Lieutenant-Governor of such part of the colony as might be acquired in sovereignty in New Zealand. The ceremony was performed in the presence of a concourse of persons, forty of whom attested to the document by their signatures. He then proceeded to read and to publish the proclamations framed by Sir George Gipps and the Executive Council of New South Wales; the first announcing that Her Majesty's authority

had been asserted over British Subjects in New Zealand; the second declaring that Her Majesty did not deem it expedient to acknowledge as valid any title to lands in New Zealand, which were not derived from or confirmed by a grant from the Crown.

Captain Hobson next circulated notices, printed in the native language, intimating that on the 5th of February he would hold a meeting of the Chiefs of the Confederation, and of the high Chiefs who had not signed the Declaration of Independence, for the purpose of explaining to them the commands of the Queen, and of laying before them the copy of a treaty he had to propose for their consideration. He also convened – at the house of Mr. Busby – a levee which was attended by almost all the European inhabitants of the neighbourhood, inclusive of the members of the Church of England and of the Roman Catholic Missions, and at noon on the day in question, proceeded to a tent which had been erected for the occasion, he being supported by Captain Nias and his officers, belonging to H.M.S. Herald; by Mr. Busby, by the members of the Church Missionary Society, the French Bishop, the officers of the Government, and by all the principal European

inhabitants, the native Chiefs being seated on the ground, in the centre of the area, within the tents, leaving a space around them for the Europeans.

The business of the meeting commenced by Captain Hobson's announcing the objects of his mission, and the reasons which had induced Her Majesty to appoint him. He explained to the chiefs, in the fullest manner, the effect that might be hoped to result from the contemplated measure, and assured them that they might rely implicitly on the good faith of Her Majesty's Government. He then read the Treaty, dwelling on each article, and offering a few remarks explanatory of such passages as they might be supposed not to understand; Mr. H. Williams, of the Church Missionary Society, interpreting in the native tongue, and sentence by sentence, all that Captain Hobson said.

When he had finished reading the Treaty, the Chiefs were invited to ask explanations on any point they did not comprehend, and to make any observations or remarks they pleased. Twenty or thirty of them addressed the meeting, five or six of whom opposed Captain Hobson, with great violence, and at one period with

such effect and so cleverly "that he apprehended an unfavourable result. But at this juncture, Nene and Patawoni, came in with the Hokianga chiefs, Revewah being then in the act of speaking against the Treaty.

"Send the man away," said Revewah, addressing the Chiefs around him; "do not sign the paper; if you do, you will be reduced to the condition of slaves, and be obliged to break stones for the roads. Your land will be taken from you, and your dignity as Chiefs will be destroyed."

Nene now came forward, and by his eloquence turned the tide of opinion. He exhorted his countrymen to reflect on their own condition; to recollect how much the character of the New Zealanders had been exalted by their intercourse with Europeans; and how impossible it was for them to govern themselves without frequent wars and bloodshed; concluding by strenuously advising them to receive the British, and to place confidence in their promises. Turning then to Captain Hobson, he said:

"You must be our father! You must not allow us to become slaves! You must preserve our customs, and never permit our lands to be wrested from us!"

One or two other Chiefs followed in the same strain, and Captain Hobson adjourned the meeting until the day after the morrow, in order to afford them full time for reflection. So anxious, however, were the Chiefs to sign the Treaty, that, early the next day, he found it expedient to assemble the officers of the Government, and to proceed to the tent, where, in their presence, and in that of Mr. Busby and the Missionaries, forty-six head Chiefs appended their signatures to this document, before at least five hundred of inferior degree.

Captain Hobson considered that the acquiescence of these Chiefs, twenty-six of whom had signed the Declaration of Independence, amounted to a full and clear recognition of the sovereign rights of Her Majesty over the Northern parts of the Northern Island, and accordingly gave Captain Nias instructions to announce the fact by a salute of twenty-one guns.

He forthwith proceeded to Hokianga, on the West coast, where he arrived on the 11th of February, being accompanied by Captain Nias, the Government officers, and the Rev. Messrs. Taylor and Clarke, of the Church Missionary Society. On reaching Wai Hau, a place on the river, about seven miles above the mission

station, he was received by the members of the Wesleyan mission, and by all the principal European Settlers of the neighbourhood. On the 12th he held, at the mission station, a meeting of the Chiefs, between four and five hundred of whom assembled, together with a number of the natives, in all about three thousand individuals. The proceedings were of precisely the same character as at Waitangi, only that the Rev. Mr. Hobbs, of the Wesleyan mission, was the interpreter.

On the present occasion Captain Hobson encountered greater opposition than at Waitangi, which he attributed to the increased influence of the Roman Catholic party, and to disreputable characters who were permanently located in the vicinity. The same arguments were employed to dissuade the natives from assenting to the Treaty: they were told that they would be ultimately deprived of their lands, made slaves of, and degraded, and therefore ought not to sign it.

But we must here introduce the following important fact, in proof of British authority having been asserted only in virtue of the Treaty. We give Captain Hobson's own words. He says:

"But many of their remarks were evidently not of native origin, and it was clear that a powerful counter-influence had been employed. Towards the close of the day one of the Chiefs, Papa Haiga, made some observations that were so distinctly of English origin, that I called on him to speak his own sentiments like a man, and not allow others, who were self-interested, to prompt him: upon which he fairly admitted the fact, and called for the European who had advised him to come forward, and tell the governor what he had told him. The call was reiterated by me, when a person named Manning presented himself. I asked his motive for endeavouring to defeat the benevolent object of Her Majesty, whose desire it is to secure to these people their just rights, and the European Settlers peace and civil government. He replied, that he conscientiously believed that the Natives would be degraded under our influence; and that, therefore, he had advised them to resist; admitting at the same time, that the laws of England were requisite to restrain and protect British subjects, but to British subjects alone should they be applicable. I asked him if he was aware that English laws could only be exercised on English soil? He replied, 'I am not aware; I am no lawyer:' upon which I begged him to resume his seat; and told the Chiefs that Mr. Manning had given them advice in utter ignorance of this most important fact, add-

ing, 'if you listen to such counsel, and oppose me, you will be stripped of all your land by a worthless class of British subjects, who consult no interest but their own, and who care not how much they trample on your rights. I am sent here to controul such people, and I ask from you the authority to do so."

The ultimate result of Captain Hobson's proceedings was, that on the whole of the Hokianga only two head chiefs abstained from signing the Treaty, though many of the Chiefs of their tribes added their names to it: and considering that the adherence of the Hokianga Chiefs established beyond dispute the sovereignty of Her Majesty over the northern districts, Captain Hobson announced his intention of issuing a proclamation declaring Her Majesty's dominion in New Zealand to extend from North Cape to the 36 deg. of Latitude, purposing, as he proceeded southward and obtained the consent of the Chiefs, to continue extending these limits by proclamation, until the whole of the islands should be included.

We are thus circumstantial, because it is of importance that the Reader should note the progressive acquisition of the sovereignty, and the mode of it; and he will observe, that up to this stage of the proceedings, there was no ad-

vancement of the remotest claim thereto on the plea of "right by discovery," or any other whatever; the right of the Crown to the sovereignty being, throughout, made to depend upon the act of cession.

At this juncture of the proceedings, Captain Hobson fell ill at Waitimata, situated on the Firth of the Thames, whither he had proceeded to further the objects of his mission, and where he obtained the adherence of the principal chiefs of that neighbourhood. In consequence of his severe indisposition, he returned, in the Herald, to the Bay of Islands, having commissioned Captain Symonds of the British army, and the Rev. Messrs. H. and W. Williams, Brown, and Maunsell, of the Church Missionary Society, to procure the adhesion of the Chiefs of their respective districts to the Treaty of Waitangi, these districts comprising the whole of the Northern Island, except Kaitai, on its north-western extremity, whither he despatched Mr. Shortland, Acting Colonial Secretary, two gentlemen officially connected with the Government, and the Rev. Mr. Taylor, of the Church Missionary Society. The allegiance of the Chiefs of the Kaitai district appeared important, they being some of the

most powerful in the island. Deeming it advisable, however, notwithstanding the measures he had taken to secure the adherence of the Chiefs, to display the dignity and importance of Government in a more ostensible manner than could be done by private individuals, Captain Hobson despatched Major Bunbury, in the Herald, to carry into effect such portions of his (Captain Hobson's) instructions, as remained unexecuted at the time of his falling ill.

But although it would appear that Captain Hobson's emissaries ultimately succeeded in procuring the adherence of the Chiefs of the Northern Island, a circumstance now occurred which induced Captain Hobson to issue a proclamation by which he declared the British sovereignty over the whole of it, before he received intimation of the entire success of his agents' efforts. The event in question was the formation, into a separate government, of the settlers located at Port Nicholson, under the auspices of the New Zealand Association; their election of a Council; their appointment of Colonel Wakefield as its President, and their proceeding to enact laws and to nominate magistrates.

Captain Hobson thus writes to the Secretary

of State for the Colonies, giving an account of his proceedings, 52 under the circumstances above mentioned.

"Availing myself of the universal adherence of the native chiefs to the Treaty of Waitangi, as testified by their signatures to the original document in my presence, or to copies signed by me, in the hands of those gentlemen who were commissioned and authorised to treat with them, I yielded to the emergency of the case arising out of the' events at Port Nicholson; and, without waiting for Major Bunbury's report, proclaimed the Sovereignty of Her Majesty over the Northern Island. Actuated by similar motives, and a perfect knowledge of the uncivilized state of the Natives, and supported by the advice of Sir George Gipps, previously given, I also proclaimed the authority of Her Majesty over the Southern Islands, on the ground of discovery. I have the honor to enclose printed copies of these two Proclamations," &c.

Doubtless, under the circumstances, Captain Hobson believed himself justified in taking this very precipitate step, the consideration of which will form another subject of investigation. With reference to the proclamation of the Queen's sovereignty over the Southern

island, asserted on the ground of discovery, it will be found that the latter fact is incorrect, as the document itself will prove.

PROCLAMATION. 53

"Whereas I have it in command from Her Majesty Queen Victoria, through her principal Secretary of State for the Colonies, to assert the Sovereign rights of Her Majesty over the Southern Islands of New Zealand, commonly called 'The Middle Island,' 'Stewart's Island,' and also, the Island commonly called 'the Northern Island,' the same having been ceded in Sovereignty to Her Majesty.

"Now, therefore, I, William Hobson, Lieutenant-Governor of New Zealand, do hereby proclaim and declare to all men, that from and after the date of these presents, the full Sovereignty of the Islands of New Zealand, extending from 34 deg. 30' North to 47 deg. 10' South Latitude, and between 166 deg. 5' to 179 deg. of East Longitude, vests in Her Majesty Queen Victoria, her heirs and successors for ever.

"Given under my hand at Government House, Russell, Bay of Islands, this 21st day of May, in the year of our Lord, 1840.

(Signed) William Hobson, Lieutenant-Governor.
By His Excellency's command,
(Signed) Willoughby Shortland, Colonial Secretary."

It may possibly have escaped observation, that according to the geographical limits of New Zealand as laid down by Captain Hobson, in the foregoing despatch, and over which he had extended Her Majesty's jurisdiction, we should have to re-cross the equator and look for North Cape in somewhere the same parellel of latitude as the southern point of Japan. A trifling error, this; which, however, as well as the former one, namely; that the Middle Island had been annexed to the British Crown by right of discovery, it was left to Major Bunbury unwittingly to correct, as the following document will show.

DECLARATION OF SOVEREIGNTY OVER TAVAI POENAMMOO. 54

"This Island, called Tavai Poenammoo, or Middle Island of New Zealand, situated between the meridian 166 deg. and 174 deg. 30' East of Greenwich, and 40 deg. 30' and 46 deg. 30' South parallel, with all the

bays, rivers, harbours, creeks, &c., in and on the islands lying off, having been ceded in sovereignty, by the several independent native chiefs, to Her Most Gracious Majesty Victoria, Queen of the United Kingdom of Great Britain and Ireland, the said island was accordingly taken possession of and formerly proclaimed, and Her Majesty's colours hoisted at the paa of Hoiakaka, Cloudy Bay, under a salute of 21 guns, on the 17th day of June, 1840, by Captain Joseph Nias, commanding Her Majesty's ship Herald, and by Major Thomas Bunbury, K.T.S. 80th Regiment, who were commissioned for that purpose.

"Done in the presence of us."

(Here follow the signatures of the officers of the ship.)

Now Captain Hobson's proclamation was dated the 21st of May, 1840, and Major Bunbury's, the 17th of June; the latter announcing that the sovereignty of the Middle Island had been ceded by the independent native Chiefs, and the former, in anticipation of Major Bunbury's success, asserting the acquisition of the sovereignty by cession likewise. In neither of the documents is the right thereto by discovery advanced, and we are at a loss to com-

prehend the discrepancy which we have pointed out, and which it is important to note, because of subsequent assertions, to the effect that the Treaty of Waitangi does not even nominally extend to the Middle Island.

Major Bunbury's report furthermore specifies the manner in which the sovereignty over the Middle Island was obtained; though he did not repair to all the localities where Native Chiefs resided, having indeed not completed his coasting tour around the Middle Island, the west coast of which he did not visit at all. He says: 55

"I visited the harbours of Coromandel, Mercury Bay, Torranga, Akaroa, Hawke's Bay, Port Nicholson, Robuka Island, (Foveaux's Straits), the Islands of Capiti and Mana, Ortago, and Southern Port (Stewart's Island.) From all these places I obtained the necessary signatures, excepting in two places, where my mission had been anticipated by other gentlemen sent by Captain Hobson. At Southern Port (Stewart's Island), and at Cloudy Bay (Middle Island), Captain Nias and myself, judging it would be for the best interests of the natives, as well as

European settlers, that further delay should not take place, we proclaimed the Queen's authority with the usual ceremonies, at the former place, on the 5th of June, where we did not meet with natives, by right of discovery; and at the latter on the 17th of June, from the sovereignty having been ceded by the principal native Chiefs."

It is not necessary for us to give, in detail, an account of the mission of the gentlemen whom Captain Hobson appointed to carry out his instructions, and who all ultimately succeeded in procuring the adherence of the principal or head-chiefs, to the Treaty of Waitangi; the more especially as we shall have occasion to revert to their proceedings presently. From the reports they furnished to Captain Hobson, who forwarded them, in due course, to the Authorities at home, it appears that, although they did not procure the assent of all the Chiefs in the Middle Island, a sufficient number of signatures was obtained to warrant the assumption of the sovereignty by cession; whilst, with regard to the Southern or Stewart's Island, the following proclamation was published by Major Bunbury.

DECLARATION OF SOVEREIGNTY OF THE

QUEEN OF ENGLAND OVER

STEWART'S ISLAND.

"The island called Stewart's Island, New Zealand, situated between the meridian 167 deg. and 168 deg. East of Greenwich, and 40 deg. and 48 deg. South parallel, with all the bays, rivers, harbours, creeks, &c., in and on the island lying off, were taken possession of in the name and in the right (by the discovery of the late lamented Captain Cook) for Her Most Excellent Majesty Victoria, Queen of the United Kingdom of Great Britain and Ireland, &c., &c.; and Her Majesty's colours were accordingly hoisted at Sylvan Bay, Southern Port, on the 5th day of June, 1840, by Captain Joseph Nias, commanding Her Majesty's ship Herald, with a detachment of royal marines, and by Major Thomas Bunbury, K.T.S. 80th Regiment, who were commissioned for that purpose.

"Done in the presence of us."

(Here follow the signatures of the officers of the ship.)

The Treaty of Waitangi itself, which formed the basis of these various negotiations, was as follows.

THE TREATY OF WAITANGI.

"Her Majesty Victoria, Queen of the United Kingdom of Great Britain and Ireland, regarding with her royal favour the Native Chiefs and Tribes of New Zealand, and anxious to protect their just rights and property, and so secure to them the enjoyment of peace and good order, has deemed it necessary, in consequence of the great number of Her Majesty's subjects who have already settled in New Zealand, and the rapid extension of emigration both from Europe and Australia, which is still in progress, to constitute and appoint a functionary, authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole, or any part of those Islands. Her Majesty, therefore, being desirous to establish a settled form of Civil Government, with laws and institutions alike to the native population and to her subjects, has been graciously pleased to empower and authorize me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul, and Lieutenant-Governor over such parts of New Zealand as may be, or hereafter may be, ceded to Her Majesty, to invite the confederated and independent Chiefs of New Zealand to concur in the following articles and conditions: –

"Article the First. – The Chiefs of the Confederation of the United Tribes of New Zealand, and the

separate and independent Chiefs who have not become members of the Confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of sovereignty which the said Confederation or individual Chiefs respectively exercise or possess, or may be supposed to exercise or possess, over their respective territories, as the sole Sovereigns thereof.

"Article the Second. – Her Majesty, the Queen of England, confirms and guarantees to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession. But the Chiefs of the United Tribes, and the individual Chiefs, yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof, may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them on that behalf.

"Article the Third. – In consideration thereof, Her Majesty the Queen of England, extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects.

(Signed) "WILLIAM HOBSON."

"Now, therefore, we, the Chiefs of the Confederation of the United Tribes of New Zealand, being assembled in Congress at Victoria, at Waitangi, and we, the separate and independent Chiefs of New Zealand, claiming authority over the Tribes and Territories which are specified after our respective names, accept and enter into the same in the full meaning and spirit thereof.

"In witness whereof, we have attached our signature or marks at the places and dates, respectively specified.

[Five hundred and twelve Signatures, &c.]

"Done at Waitangi, 16th Jan. 1840."

51 Vide Par. Papers on New Zealand. 1841.

52 Vide Parliamentary Papers on New Zealand. 1841. page 16.

53 No. 4 No. 11 Lieutenant-Governor Hobson to the Sectretary of State for the Colonies. Vide Parliamentary Papers on New Zealand

54 Major Bunbury to Captain Hobson, enclosed in Captain Hobson's despatch to the Secretary of State for the Colonies, No. 35. Parliamentary Papers on New Zealand. 1841. page 112.

55 Parliamentary Papers on New Zealand. 1841. page 59.

CHAPTER VI.

CHAPTER VI.

A FEW OBSERVATIONS ON THE TREATY OF WAITANGI.

THE Select Committee appointed in 1844 by the House of Commons, to receive evidence relative to the condition of New Zealand, and to report thereupon, came to the following Resolution respecting the Treaty of Waitangi.

"That the conclusion of the Treaty of Waitangi by Captain Hobson with certain natives of New Zealand, was a part of a series of injudicious proceedings, which had commenced several years previous to his assumption of the local Government."

With all deference to the opinion of the honorable Committee, we are disposed to

believe that the conclusion of the Treaty was not, in itself, an injudicious proceeding; for we cannot regard in this light, an act, the object of which was calculated to dispel the apprehensions of the Aborigines, that the British intended to dispossess them of their lands; hence, it was probably not under this peculiar aspect that the Committee regarded it, or they would not have condemned the Treaty, how severely soever and justly they had censured the proceedings anterior thereto.

Yet even on the latter head we entertain an opinion, possibly erroneous, but differing from that of the Select Committee, as expressed in their Report, and in reference to the acts they have condemned. We shall discuss them in order.

In the first place, then, it appears to us, that the original, palpable error was in the assumption, on the simple ground of discovery, of a right to the Sovereignty of the Islands of New Zealand, as vested in the Crown of Great Britain by the act of Captain Cook; but, having given in a former chapter the authorities on which our opinion is established, we need not resume the discussion in this place; whilst, as the British Crown formally renounced all

rights by discovery, we might even say, forfeited them – we ourselves merely admitting them, pro forma – it will be convenient to consider New Zealand as an independent state, at the period at which the proceedings referred to in the Report, commenced, and to dismiss the first grave error altogether from the question immediately before us.

Nevertheless, and granting Great Britain to have acquired rights by discovery over New Zealand, it is not less true that she erred in sound policy in neglecting to legalise those rights, according to the usage of nations, as she would thereby have obviated the inconveniences which have since arisen, not only from irregular colonization, but also from the threatened acquisitions of foreigners. As a proof, however, that with communities as with individuals justice is the soundest policy, we will add, that according to our interpretation of the principles of inter-national law, the end Great Britain sought, might have been attained without her assumption of a doubtful Sovereignty. By discovery, she became as a christian and a civilized nation, the privileged defender, against foreign and forcible encroachments, of the rights of the Aborigines of the newly-found country: and by

a proper compact with them, might have secured to herself, at that early period, all the advantages as against foreigners, of that Sovereignty by right of discovery, which she could and did assume only by violating the Law of Nations, though she afterwards renounced such right. On the other hand, to guarantee the Natives against the evils of irregular settlements amongst them, it would have sufficed to proclaim the law, to wit: "that British subjects cannot form Colonies without the consent of the Crown." 56 If, as it subsequently happened, public speculators or private associations had persisted, in defiance of the law, in establishing settlements, the penalties of disobedience might, with stricter justice, have been enforced against them, because there would have been no doubt as to the privilege of the Crown to prohibit such proceedings. As it chanced, the law on this point was made known only when the mischief was already half accomplished, and when the peculiar relation in which Great Bri-

tain stood with regard to New Zealand, rendered it almost doubtful whether the law would be enforced: and thus individuals were encouraged to persevere in the illegal course they had entered upon.

Against the practical policy of the plan we have ventured to suggest, one objection may perhaps be raised, namely: if it be assumed as a principle that the act of discovery does not confer upon the nation discovering, any right of sovereignty over already peopled countries, by which right such nation may prevent foreigners from establishing colonies therein, but that the right of excluding the latter must depend upon a special compact to this effect, to be entered into with the Aborigines, then in the event of these refusing to assent to such special arrangement, it is clear that in the instance of New Zealand, Great Britain could not have prevented the French or the Americans from establishing themselves in that country, nor even from acquiring the Sovereignty thereof, if the Aborigines had been disposed to cede or to sell it.

The above is an extreme case to put, for it is absolutely contrary to fact and to experience to assume that, in their primitive or even more

advanced relations with civilized nations, an Aboriginal people are indisposed to enter into compact with them, when their own interest and advantage prominently constitute the basis of the arrangement. Unfortunately for themselves, they have been but too continuously the victims of their readiness to associate with Europeans; wherefore we rather should not admit the foregoing as a substantial argument against us; to meet it, however, we would observe, that if under our interpretation of international law, the New Zealanders, as a free and an independent people, had deemed it advisable to treat exclusively with, or to allow the French or the Americans to settle amongt them, in preference to the English, the nation which had discovered them, (and this is again an extreme case) we cannot find in the Law nor the usage of Nations, any rule which would have justified the English in forcibly excluding these foreigners from a territory, over which they (the English) had no jurisdiction, nor in controlling, in this particular, the actions of the New Zealanders, over whom they likewise had not any dominion.

Again, when, under the present system, the mere assumption by any nation, of sovereignty

by right of discovery over any other, newly-found and already peopled, is proved to be insufficient to prevent its irregular colonization by third parties, and civilized nations are nevertheless agreed mutually to respect the right which, contrary to the spirit and intent of the Jus Gentium, discovery is assumed to confer, they assuredly would not, under such an interpretation of inter-national law as we have vetured to suggest, the less respect a rule founded upon principles of justice, and of universal application; which would deprive them of no right they could equitably claim, but which would tend rather to simplify their political relations with one another, assuredly diminish amongst them the sources of misunderstandings and animosities, and spare them the odium of citing the injustices of the one as an extenuation of the encroachments of the other: 57 a piteous, a shameful spectacle for a Christian world to contemplate.

To return, however, to the question more immediately under our consideration, we find

that in enumerating the causes of the difficulties in New Zealand, the Select Committee ascribed their origin to the neglect of "those rules as to the mode in which colonization, ought to be conducted, which have been drawn from reason and from experience," and cited these as having been laid down by Sir George Gipps, Governor of New South Wales, in his address on introducing the Bill for the regulation of the sale of Crown lands. We give the quotation:

"The Bill is founded upon two or three general principles, which, until I heard them here controverted, I thought were fully admitted, and indeed received as political axioms. The first is, that the uncivilized inhabitants of any country have but a qualified dominion over it, or a right of occupancy only; and that, until they establish among themselves a settled form of Government, and subjugate the ground to their own uses, by the cultivation of it, they cannot grant to individuals not of their own tribe any portion of it, for the simple reason that they have not themselves any individual property in it. Secondly, that if a settlement be made in any such country by a civilized power, the right of preemption of the soil, or in other words, the right of

extinguishing the native title, is exclusively in the Government of that power, and cannot be enjoyed by individuals without the consent of their Government. The third principle is, that neither individuals, nor bodies of men belonging to any nation, can form colonies, except with the consent, and under the direction and control of their own Government; and that from any Settlement which they may form without the consent of their Government, they may be ousted. This is simply to say, as far as Englishmen are concerned, that colonies cannot be formed without the consent of the Crown."

It is with the first of these principles we have more particularly to do in this place; the third is wholly independent of it, and the second only partially its consequent.

This doctrine, then, as it is here laid down, we unhesitatingly condemn as unjust and unsound. It appears to be derived from the celebrated question propounded by Vattel, and since advocated by Dr. Arnold, to which we have already referred, 58 and the discussion of which we must reserve for a separate chapter.

For the present we content ourselves with simply asserting, that whatever may have been the practice, in this particular, of civilized nations, they do not possess a natural right to seize upon the territories of an uncivilised people, until they have themselves at least fulfilled all the conditions by which such a right is very justly limited. It is, therefore, wrong to assume that it is unconditional, as has here been done, and positively unwise to establish, upon a fallacious theory, principles intended to regulate the most important undertakings of a State. Their first result is that they are self-contradictory; to wit:

"The uncivilized inhabitants of any country cannot grant to individuals not of their own tribe, any portion of the soil, because they have not themselves any individual property in it."

Now this does not deny to them a right to grant to individuals of their own tribe, such portions of the soil as the) may require; nor of appropriating to themselves, the whole of the soil, either for their present or their ultimate uses. Assuredly, then, if they be conceded a right of this nature, with reference to

their own people, it is difficult to conceive how they should not possess it with regard to strangers: ergo, they either possess it not at all, or it is theirs unrestricted, save by one condition, to which we shall presently allude, and the observance of which is as imperative upon civilized nations as upon them. Again:

"The right of pre-emption of the soil, or in other words the right of extinguishing the native title, is exclusively in the Government, &c."

Thus the Government acquires a right to extinguish native title, though the existence of such title is denied; in other words, it acquires a right to extinguish nothing. Or, it enjoys the privilege of pre-emption of the soil; but, unles the soil belong to somebody, how can Government purchase? and if pre-emption be a privilege, how can it operate unless there exist, on the part of the Aborigines, also a privilege to sell. The very assumption of a right to extinguish native title, proves the existence of that title; and the asserting of pre-emption, or a right to buy before any one else, not only confirms the existence of such title, but pre-supposes a po-

sitive right to alienate it, and a privilege of choice as to the party in whose favour such alienation shall be made. It is obvious, therefore, that the principle is erroneous upon which such doctrine is founded, and that the doctrine itself is untenable.

But there is yet another consideration, namely; that although such rules might have been found easy of application in New South Wales, where the unfortunate Aborigines are scattered, and few in number, they could not be so conveniently enforced against the New Zealanders; a powerful, shrewd, warlike race, most scrupulously jealous of their natural prerogatives, especially sensitive on the score of their title to land, and entertaining on this head, very definite notions which militate against the smallest encroachment upon their proprietary rights. Thus, even admitting the justice or the soundness of the theory, it was highly impolitic to contemplate its introduction into New Zealand, where it could not fail to engender the bitterest feeling, if not open hostility.

The third principle is established law, founded upon substantial policy; for it is manifest that if private individuals or public associations were permitted to establish colonies

without the license of the Crown, they might ultimately constitute themselves into a separate power, proclaim their independence, and possibly materially prejudice if not ruin the interests of the mother-country. Thus, discarding the two first-mentioned principles, the neglect of which would rather affect certain abstract rights than originate the difficulties in New Zealand alluded to in the Report, we believe that the formal enforcement of the law prohibiting colonization without the sanction of the Crown, would have arrested, in their illegal course, those parties who were bent upon infringing it; and had it been proclaimed at an early period, that it would have tended, in a great measure, to prevent private persons from settling there, and more than answered the purpose of an unconditional assumption of the Sovereignty by presumed right of discovery.

This was, then, another fundamental error, by so much the more serious, that it was found impossible, under then existing circumstances, "to check the tide of emigration which set so strongly towards the shores of New Zealand." Nevertheless, it is probable that even had the law aforesaid been enforced

in the majority of instances, it would yet not have prevented indirect emigration from Sydney and elsewhere, whilst it would have proved utterly ineffectual to check land-jobbing by Americans and others, and afforded no safeguard against the acquisition of the sovereignty by third parties, either by cession or by purchase; wherefore, the next great error was – not in neglecting to assume the Sovereignty on the ground of prior discovery, as the Report recommended – but in not concluding with the Natives, a treaty similar to that of Waitangi, as soon as the first emigrants landed.

It is true that the honorable Select Committee were of opinion that the entering into the treaty in question, was altogether a wrong step:

"That it would have been better if no formal treaty whatever had been made, as the natives were incapable of comprehending the real force and meaning of such a transaction, which amounted, therefore, to little more than a legal fiction. The sovereignty over the Northern Island might have been at once assumed on the ground of prior discovery, and on that of the absolute necessity of establishing the authority of the British Crown for the protection of the Natives themselves, when so large a

number of British subjects had irregularly settled themselves in these islands, as to make it indispensable to provide some means of maintaining good order amongst them. This was the course actually pursued with respect to the Middle and Southern Islands, to which the Treaty of Waitangi does not even nominally extend!" et seq: "the treaty has been attended with the double disadvantage, first, that its terms are ambiguous, and in the sense in which they have been understood, highly inconvenient;" et seq.

It is certainly a matter of surprise to us, how it could be asserted that the natives were incapable of comprehending the real force and meaning of the arrangement they were entering into, when the reports of Captain Hobson, Major Bunbury, and the other agents employed to effect it, show that the New Zealanders only too fully comprehended. So jealous indeed were they of any infringement upon their rights, and so wary lest the cession of the Sovereignty should dispossess them of any part thereof, that they opposed the Treaty; with such effect too, as, at one moment, to cause Captain Hobson to feel disposed to put it into his pocket and return to Sydney. The ambiguity, then, if any, was on the part of the

British in not denning more clearly and unmistakeably what they meant by Sovereignty, and in assuming that they acquired the same in full, when, in fact, they procured it only in part. These indeed were injudicious proceedings, and could not but result in dissatisfaction and confusion.

In a matter of so much importance, it can scarcely be doubted that previously to concluding, or even negotiating for, the Treaty, care was taken to ascertain whether the Natives understood the word "Sovereignty," in our sense of it; but it is clear that the knowledge thus obtained, was not taken advantage of, for it is established that the majority understood Sovereignty to imply merely a magisterial jurisdiction, that is, a right on the part of the British Crown to protect them against the evils of irregular settling, and to bring them under civilized law and rule, modified to their condition; but they never could be made to appreciate that peculiar privilege of the Crown's, by which it is asserted that all unoccupied lands vest in it by right of prerogative, and hence their disinclination to accede to the Treaty until they were assured their proprietary rights, as they understood them –

would be scrupulously respected to their fullest extent; hence, likewise, the special clause in their favour, of "the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess," &c., the introduction of which fully proved, on the part of those who drew up the Treaty, a perfect knowledge of New Zealand customs, habits and character, and therefore rendered less excusable and more ambiguous the assumption of the "full Sovereignty," 59 when an important exception thereto was flagrant.

That this restriction of the Sovereign prerogative raises an insuperable bar to the absorption by the Crown of such districts as do not come under the category of "lands not beneficially used and enjoyed," though de jure et de facto possessed and occupied by the natives, is certain; and possibly, to this extent, the Treaty might prove highly inconvenient, should the Colonial policy contemplate setting aside so much of its provisions as may be inferred to relate to so-called Crown lands; this, however, is another question, of which more

anon; but it is manifest that if the Treaty has been misunderstood, it is not by the New Zealanders, who regard it as a guarantee of their peculiar proprietary rights, but by the Colonial authorities, who would appear desirous of acquiring more than the terms of the compact entitle them to.

The alternative suggested by the Select Committee, namely: of assuming the Sovereignty by right of discovery, without the formality of any Treaty whatsoever, would probably have proved a very dangerous one in practice; for, considering the jealousy of the Natives on the score of their proprietary rights; the strong opposition they manifested against the conclusion of the Treaty, arising from their apprehension lest their lauds should, be taken from them; and judging from the positive evidence of competent authorities to the effect that, understanding the term sovereignty to signify, according to the English acceptation, not only a magisterial jurisdiction – which, be it here said, they desired to see established – but likewise a proprietary right, in so far as the absorption of all uncultivated lands was concerned; judging from these facts, we verily believe that the forcible assumption

of the sovereignty would have resulted in a most awful sacrifice of human life; that the British Crown would have had to establish its domination by the very worst of titles, viz.: conquest; and although the ultimate issue might not have been doubtful, the contest would have branded Great Britain with lasting disgrace, whilst her victory would have figured amongst the darkest achievements of a barbarian age.

That "the Treaty of Waitangi does not even nominally extend" to the Middle Island, is clearly an assertion contrary to fact, and the result of an erroneous impression on the part of the Committee: for Major Bunbury's report and proclamation are conclusive as to the adherence of the principal Native Chiefs, many of whom were proprietors of land situated in the Northern Island also.

With reference to Stewart's Island, it was evidently Major Bunbury's intention to procure the signatures of the Chiefs there likewise; for, in his communication to Captain Hobson, he thus refers to his proceedings at Southern Port, in the above island.60

"Accompanied by Captain Stuart, I went to visit a station in the harbour, distant about four or five miles, where he formerly had some men employed as ship-builders; but although we found vestiges of them, it was evident that they had abandoned this part of the island, some time previous to our arrival, and on my return to the Herald, in the probability of our not finding any natives, Captain Nias and myself deemed it advisable the same day to proclaim the Queen's authority over the island," et seq.

The words in italics are of our own marking, to call attention to the intention of the Major, in the event of his finding natives; also to prove, that had he found them, they would have been urged to sign the Treaty, as the Native Chiefs of the Middle Island had done; the act of the majority or of the most influential, being presumed to bind the remainder.

And here arises a curious question, namely: as, previously to the Treaty, the Islands of New Zealand were declared independent, the Crown of Great Britain having renounced all rights to the sovereignty thereof; 61 as the

terms of the Treaty clearly apply to all the Chiefs of New Zealand; as all of them did not sign it; and as, according to native custom, the act of one or more of the Chiefs of any district or districts, is not binding upon the remaining chiefs or tribes of other districts, each being independent of the other, then are there not some who do not come within the provisions of the Treaty, and who remain independent of British rule, as before the assumption of the sovereignty?

To this question we can offer no better reply than that which has been returned by an eminent Jurist, and in whose opinion we cordially concur.

"But if there really be independent chiefs and tribes, who are no parties to the treaty, who were never cited to Waitangi, and by no latitude of interpretation can be considered to have been represented at the National Congress, which was holden at that place, and who, moreover, have always refused to give in their adherence to that treaty – it assuredly may happen that the independent chiefs and tribes, thus circumstanced, may not be bound by the obligations of that treaty, and, consequently, may be entitled to distinct and separate considerations from

those which apply to the other districts in these Islands.

"If any such there be, it is clear, I think, that they ought to be permitted to continue in the peaceful occupation and enjoyment of their respective properties." 62

As a consequence of this anomaly, however, it would appear – although such an event is most improbable – that within the respective territories of such Chiefs and tribes over whom the Crown is presumed to possess no right of jurisdiction, foreigners might possibly acquire of them, lands for the purposes of colonization, without any infraction of the rights of the British sovereignty.

But there is yet another question involved in this peculiar condition of things, which we cannot more clearly state than in the words of Mr. Attorney-General Swainson, in his letter to Acting-Governor Willoughby Shortland, dated 13th July, 1843.

"With reference to a former transaction, my opinion was requested as to how far the New Zealanders were amenable to British law. It was given

to the effect, that, as to all other nations, the sovereignty of Great Britain over the whole of these islands is absolute and entire, but that, as to the natives, keeping in view the solemn and repeated disclaimers of Her Majesty's Government, of every pretension to seize on the islands of New Zealand, or to govern them as part of the dominion of Great Britain, unless the free and intelligent consent of the natives should be first obtained; that those chiefs and tribes who were not parties to the treaty, and who had always refused to recognize Her Majesty's sovereign authority over them, could not be deemed British subjects and amenable to our laws." 63

To this, Lord Stanley replied, in his letter to Governor Fitzroy, of the 10th February 1844, to the effect that the Colonial Attorney-General's judgment had been over-ruled by the opposite opinion of the Queen and the Parliament, and must thenceforward be silenced. 64 A somewhat summary mode this of crushing a principle, the public advocacy of which might possibly have made "confusion worse confounded;" it was, neverthless, quite worthy of attentive consideration, with a view to establish uniformity in the position of the natives who

were dehors the Treaty, and the more so because the question had arisen out of a real difficulty which presented itself on the assistance of the authorities being required to apprehend a native delinquent, and subsequently when the arrest of the Chief Rauparaha was in contemplation. As, however, practically speaking, little mischief, if any, may arise from the anomalous position of some of the Natives of the Middle Island relatively to the British Government, it would seem a waste of time to discuss the point, were it not that a principle is at issue; and although the veto of Parliament has certainly pronounced the Queen's authority established over the whole of the Islands, we may yet be permitted to doubt whether, under the circumstances and the conditions of the acquisition of the sovereignty, that veto is a fair solution of the dilemma.

With reference to the prejudices of the Natives, particularly of those of the Middle Island, and of their very distinct comprehension of the Treaty, we may be allowed to cite here a few instances, quoted from Major Bunbnry's report:

"16th of June. – We arrived at Cloudy Bay. Mr. Williams, Captain Stuart and myself, landing

the same evening at Guard's Cove, where we found several European residents, and the brothers of the Chief of Capiti Island (Rauparaha) with two or three other chiefs of inferior note, his nephews; the whole of these refused to sign the treaty, under the impression that if they did so their lands would be taken from them:" et seq.

"On the morning following our arrival, we were visited by some chiefs from other coves adjoining that which we had visited the preceding evening; these did not hesitate to sign the treaty when it was explained to them; a young chief of the name of Mavipu we found particularly intelligent. When told, after he had read the treaty, of the difficulty we had experienced at the neighbouring cove, he said that tribe was not singular, and that most of the natives imagined that we asked them to sign in order that the Queen might afterwards take their lands from them. Both Mr. Williams and Captain Stuart were surprised at the very clear manner in which he explained to another chief the nature of the second article of the treaty, which relates to the land and property of the natives. The old Chief Nohorua (brother to Rauparaha) on condition that his signature was witnessed by his English son-in-law, Tornes, agreed to sign, in order, as he said, should his grand-children lose their land, their father might share the blame.

"On my return to the vessel, I found a number

of native chiefs had assembled, and all expressed a wish to sign excepting the three brothers; the wife, however, of one of them was very anxious to sign, saying that she was a daughter of the celebrated chief Pehi, who was killed at Akaroa; she appeared very angry when I would not permit it.

"To show how much these people have been harassed about their lands, and how jealous they are in preserving this species of property, they all objected to receive presents after signing, lest by some quibble I might construe it as a payment for its surrender, until they were again assured to the contrary."

Again, and relating his proceedings at Hawkes' Bay in the Northern Island:

"The chief Te Hapuku at first refused to sign the treaty, saying that he was nobody, and that he had heard that those who had signed it at the Bay of Islands had been made slaves; I therefore requested Mr. Williams to ask the chief Hara, who was one of those who had signed, how he came not to be made a slave of, and how many slaves he had seen at the Bay of Islands when he left that place with Mr. Williams's father! He endeavoured then to explain his meaning by a sort of diagram on a piece of board, placing the Queen by herself over the chiefs as these were over their tribes. I told him it was literally as he described it, but not for an evil purpose as they supposed, but to enable her to enforce

the execution of justice and good government equally amongst her subjects. Her authority having been already proclaimed over New Zealand, with the consent of the greater number of influential chiefs, he would find that the tribes must no longer go to war with each other, but subject their differences to her arbitration; strangers and foreigners must no longer be plundered and oppressed by natives or chiefs, nor they injured or insulted by white men. It was not the object of Her Majesty's Government to lower the chiefs in the estimation of their tribes, and that his signature being now attached to the treaty could only tend to increase his consequence by acknowledging his title; he might, therefore, sign or otherwise as he thought best for his own interests and those of his tribe."

After such positive evidence, we imagine no one will affirm that the New Zealanders were incapable of comprehending the nature and the importance of the Treaty. As to their appreciation of the term "sovereignty" limited as it was by the second article of the Treaty, the explanation given by Nopera, one of the Kaitai Chiefs, is perhaps at once the most graphic, the most poetic, and the most logical. His speech is too long to introduce here, but coming to the question of the sovereignty as asserted in antagonism with the second article, he said:

"The shadow of the land goes to Queen Victoria, but the substance remains with us. We will go to the governor, and get a payment for our land as before."

This speech is at the same time an explanation of "sovereignty" as the New Zealanders understood it; an assertion of their title to the soil; and an illustration of their mode of relinquishing the same by actual sale.

It appears that Major Bunbury was not unaware of the delicate position in which the partial acquiescence to the Treaty, of the Natives of the Middle Island, placed the British Government; for, referring to the perplexity of the case and to his summary mode of settlement, he seems desirous of deprecating ultimate censure for having – as he seems to imply – gone beyond his instructions. He says:

"It may appear like cutting the Gordian Knot, where so many and such intricate interests are interwoven; yet the further delaying this step could only tend to create further difficulties, and where so many influential natives had signed, the presence of so many foreign vessels contributed to render the declaration of Her Majesty's Sovereignty more solemn and imposing. I therefore trust that it will meet with your Excellency's approbation."

Hence we cannot but infer that the Treaty of Waitangi extends to the Middle Island; and that the precipitate declaration of Her Majesty's sovereignty over it, not by right of discovery, but by cession, and when only the assent of some of the chiefs had been obtained, was a measure of expediency which in no respect can be construed to set aside the principles on which that sovereignty was acquired; in other words, that if the whole of the Middle Island be considered by the Legislature to be annexed to the British Crown – without excepting those chiefs and tribes who did not sign the treaty – it can be only in virtue of the act of cession, and the natives there have a right to enjoy all those privileges which are secured to the Aborigines of the Northern Island who are recognized to be parties to the Treaty.

With reference to Stewart's Island, the same rule ought to apply, not only upon principle, but in virtue of Major Bunbury's intention; the more so that Tooiaki, (or Bloody Jack,) Chief of Ruapooki, a small island in Faveaux's straits, was admitted to become a party to the Treaty; proving that where chiefs were to be found, it was deemed advisable to procure their adherence. Of course, this application of the

Treaty could be allowed only in the event of its being ascertained – though there might not have been any natives on the Island, at the moment of Major Bunbury's visit – that there are native claimants to it; should not this be the case, however, the right by discovery would necessarily be valid.

We reserve to ourselves to show, presently, that such policy as we have presumed to suggest, would prove the soundest in practice, at the same time that it is in accordance with the principles of international law, not less than with those elevated moral principles which ought to regulate the conduct of a Christian nation towards the uncivilized races of the earth.

If we have been thus elaborate in proving that the Treaty applies to the Middle Island as well as to the Northern, and ought to be construed to comprise the Southern or Stewart's Island, it is because, if the two latter are said to be dehors the Treaty, the rights of the Crown over them would not, as in the instance of the Northern Island, be limited by the second article, but would obtain to the full extent of its magisterial jurisdiction, as well as to the absorbing of all the lands as the demesne of the Crown; the natives themselves no longer hold-

ing the soil by right of occupancy, but under Her Majesty, as the source of all title, in virtue of her sovereign prerogative.

Referring now to the proclamation of Sir George Gipps, it will be remarked that the limits of the Colony of New South Wales were extended "so as to include any territory which is or may be acquired in sovereignty" by Her Majesty, within the group of Islands called New Zealand, &c. Now, though there can be no question that the words "or may be" implied possibility of future acquisition, the words "which is" seemed to point to an acquisition already accomplished; in other words, to rights of sovereignty there, already possessed by Her Majesty, at the period of the issuing of the proclamation.

At the commencement of the foregoing chapter we endeavoured to prove that no latent claim to the sovereignty, on the ground of discovery – the only claim that could have been advanced – was asserted at this period; and if we recur to the question, it is for the purpose of pointing out one of the category of "injudicious proceedings" on the part of the Legislature, which the Select Committee visited with their censure, although it is possible they

did not appreciate, in such a light, the fact we are about to allude to.

We would, then, indeed believe, that the sentence "which is acquired in sovereignty by Her Majesty," &c., could be construed to imply that the Crown – recognizing the Islands of New Zealand as an independent State, and the right of its subjects to acquire lands there as in any other independent State, (to employ the argument of the New Zealand Company) intended, in the words aforesaid, to advance its rights of sovereign jurisdiction over such territories as, up to the date of the proclamation, had been acquired by them, by legitimate and equitable purchase; and this, upon the strength of that law which vests in the Queen the exclusive right of acquiring new territory, and consequently escheats to Her, all such lands as her subjects may have acquired without the royal license. Such a proceeding – had it been adopted – would in no-wise have prejudiced the New Zealanders as an independent people, nor infringed upon their rights of sovereignty, because we have it in evidence that they relinquish all jurisdiction over such lands as they fairly sell; consequently, purchasers of such lands become independent and are dehors the domi-

nation of the Aborigines; nevertheless, as they still remain British Subjects, and are, as such, incompetent to hold independent territory – that is, territory subject to no sovereign jurisdiction – it is clear their title can derive only from the Crown to which they owe allegiance, and that in respect of such lands as they may purchase, they must be regarded as purchasers under the Crown: hence its sovereignty over the same.

Unfortunately, the last proclamation of Sir George Gipps proves fatal to such an assumption as the above, for it declares absolutely null and void, all titles to land which had been or might be acquired in New Zealand, unless the same are derived from or confirmed by a grant "to be made in Her Majesty's name." Now the power thereof the Crown, to grant lands or to confirm purchases made, clearly depended upon its anticipated acquisition of the sovereignty of these Islands, over no part of which did it assume any jurisdiction at the period of this proclamation, which was founded upon the principle of the perfect independence of the entire group as a State. Had it been otherwise, it is not unreasonable to conclude that, immediately upon the arrival of Captain Hobson at the Bay

of Islands, the Crown would have asserted, through him, its rights of prerogative over all such lands as might have been acquired by its subjects, upon equitable conditions, declaring forfeit and to revert to the original native proprietors, all those to which the title should be disallowed by the Land-commission.

It may be argued, nevertheless, that Lieutenant-Governor Hobson did in fact commence by announcing that "Her Majesty's authority had been asserted over British Subjects in New Zealand;" 65 but, upon examination it will be found that his Proclamation merely announced Her Majesty's pleasure, that measures should be taken for the establishment of a settled form of civil government over those of Her Majesty's subjects who were already settled in New Zealand, or who might thereafter resort thither; and to this effect, the limits of the Colony of New South Wales were extended so as to comprehend any part of New Zealand that might be acquired in sovereignty by Her. 66 Thus, Captain Hobson's Proclamation, so far from asserting Her Majesty's authority to be estab-

lished, clearly pointed at the establishment thereof being conditional upon the subsequent acquisition of the sovereignty.

To return, however, to the preceding question, it may, perhaps, be urged against the argument, that if the New Zealanders were an independent people, exercising sovereign jurisdiction within their own territories, then the Crown of Great Britain could not, without prejudice to them, have asserted its prerogative over those lands which its subjects had purchased, because the Aboriginal Sovereignty already possessed similar and preferable rights which would have excluded the foreign sovereignty to precisely the same extent and in the same manner as obtains, under similar circumstances, with reference to landed property acquired by subjects in any European state. This objection, however, is met by the fact we have already adverted to, namely; that when the Natives of New Zealand sell their land, they relinquish and abandon sovereign jurisdiction over it, without any reservation, for the simple reason that their peculiar laws can operate only amongst and over their own people, and in the districts they possess or inhabit; whereas, in European states, there is ever a reservation

in favour of the Sovereign, which is derived from the feudal system, the Crown being considered as the primitive source of all title: consequently, when its subjects acquire land in foreign countries, they must conform to and be governed by the lex loci, or in other words, be subject to the foreign sovereignty; but over the land they have thus acquired, the Sovereign to whom such aliens owe natural allegiance, cannot exercise any right of prerogative.

Now it is evident that if there had existed amongst the New Zealanders any system of sovereignty, similar in its attributes to that which obtains in European states, then their independence having been recognized by the British Crown, British subjects might have acquired real estate in that country as in any other foreign and independent State; but they must, in such case, virtually have become New Zealanders; have subjected themselves to New Zealand laws; in fine, have ceased during their residency to be British subjects, and forfeited all right to the protection of the British Crown.

To return, however, to Captain Hobson there exists positive evidence that the Crown did not assert its prerogative over those lands

which were held or claimed in right of purchase, by British subjects, for, as we have shown, he asked of the native chiefs, authority to control the settlers, having previously announced "that English laws could only be exercised on English soil."

But no blame can attach to Captain Hobson for the course he pursued; the fault lies at the door of the superior authorities at home, who seem to have altogether over-looked the important distinction we have pointed out, or it is difficult to conceive that his instructions would not have enjoined him to declare – immediately upon his arrival – the Sovereignty of the British Crown over the whole of such territories as its subjects had acquired by purchase upon equitable conditions, and to confine his negotiations for the recognition of its authority by the Natives, to such remaining portions of the Islands as had not been sold, and of which they still remained the masters.

The first practical result of this step would have been to bring all the British occupiers of land at once under British law, and to forestall the illegal proceedings of the New Zealand Company at Port Nicholson; whilst there would have existed no necessity for Captain

Hobson to proclaim, with such undue precipitancy, Her Majesty's Sovereignty over the New Zealand Islands, before he was even aware whether the agents whom he had commissioned to treat with the Chiefs for the cession, had succeeded in procuring their adhesion to the Treaty, although knowing well that upon that adhesion the legitimate acquisition of the Sovereignty depended. We should not then have seen him contradicting himself in his public official acts, 67 namely; first declaring the Queen's authority established over the Northern Island, by act of cession on the part of the Chiefs; and over the Middle and the Southern Islands, by right of discovery; when, at the same time, his proclamation either ambiguously implied that the acquisition of the latter had been secured under the same conditions as the former, or it left altogether out of the question the terms under which they had been acquired; whereas his own agent, Major Bunbury, specially commissioned to carry out the views of Government, proclaimed the Middle Island to have been ceded to Her

Majesty, by the deliberate act of the Chiefs: a proclamation which was forthwith ratified by the Governor and by the Colonial authorities.

Such confusion could not exist without engendering practical evils; accordingly, we find it publicly declared that the Treaty of Waitangi does not even nominally extend to the Middle Island; then a Charter is sent out, including the whole of the Islands within its provisions, but the operation of which is subsequently suspended, for a term, (say rescinded) over the Northern Island to which the Treaty does apply, and enforced (at the discretion of the Governor), with reference to the Middle and the Southern Islands, to which the Treaty is asserted not to apply. Next come the land claims, which, under this arrangement, ought to be settled by different rules, yet which are regulated by the same; save that the Crown advances, in right of its sovereignty, a general claim to all lands not beneficially enjoyed by the Natives – that is, not cultivated – which claim engenders a strong feeling of discontent in the Northern Island, where the Natives are strong enough to resist it, and where it is, consequently, not immediately enforced; whilst it is to be urged in the Middle Island, where there are

comparatively few Natives, and these widely dispersed. The evil, however, does not stop here; for the Natives of the Northern Island, taking up the question upon principle, are agitating in every direction, being kept in check only by the assurances of the Governor and of the Missionary body, to the effect that "the Charter will not be enforced," 68 a state of things most injurious to the progress and to the future prospects of the Colony, which, by one unwise or even inadvertent step may be embroiled in a sanguinary and a cruel war.

We do not assert, had the line of policy we have ventured to point out, been adopted, that the numerous contentions arising out of the land-question, would have been all obviated. These, under any circumstances, must, to a great extent, have ensued, being the natural result of unprincipled speculations, of ambiguous contracts, and of the conflicting claims of the natives, in cases where no adequate com-

pensation had really been given them for the lands purchased; but these perplexities might certainly have been solved, then as now, by a Land Commission; whilst the question itself would not have been subsequently complicated by the latent claims of the Crown to so called waste lands, nor the suspicions, if not the animosity of the natives excited against the government, rendering its tenure of the Colony of the unsafest.

But we have yet to consider, also, how far such a policy was calculated to meet the great difficulty anticipated from the pretensions of the French.

In the first place, then, the authority of the Crown of Great Britain could not have been questioned in respect of such parts of New Zealand as had been acquired by equitable purchase, by British subjects; and as we find that the Aborigines were themselves violently opposed to French supremacy, 69 but, on the contrary, entertained a strong desire for the protection of the British Government, 70 there

can be no question that they would have readily acceded to a Treaty in which the rights of the Crown, as already established, should have been clearly defined, and which, in consideration of their cession of magisterial jurisdiction, (such as they exercised), and of the right of pre-emption, would by a special clause including them within the limits of the Crown's prerogative, have guaranteed to them the protection they were so desirous of securing.

Thus, practically speaking, we should have acquired the sovereignty as we now possess it – that is, limited by the peculiar proprietary rights of the natives – but under increased facilities, and at no sacrifice of national consistency; whilst the basis of our future relations with the Aborigines would have been marvellously simplified, and our justice have offered to those chiefs who may still be dehors the Treaty, an additional inducement to become parties thereto.

We have now to call attention to the Treaty of Waitangi itself, which the Select Committee, pronounced to be "ambiguous in its terms," in reference "principally to the stipulations it contains with respect to the right of property in land."

Now it is precisely this very part of the Treaty that is least ambiguous, as it is likewise the most important. There cannot exist the slightest doubt as to the real meaning and intent of its provisions, any more than, that unless this article had been inserted, and in terms perfectly unambiguous, the Treaty would never have been accepted by the New Zealanders. The framers of it knew very well, that the Natives claimed "every inch of the soil" of their Islands, and that except every inch of it were secured to them, all attempts to establish the authority of Her Majesty, as Sovereign of the country, would prove abortive. Upon the knowledge of this great, this fundamental fact, they proceeded, and their acts throughout prove incontestably that they framed their arguments accordingly. It was only by iteration and re-iteration of the second article, and by citing it as a proof that the Queen did not purpose to do them the smallest prejudice in respect of their proprietary rights, that they succeeded in dispelling the apprehensions of the Natives, in inspiring them with confidence in Her justice, and finally induced them to accede to the Treaty, which they would have indignantly rejected, had they conceived that

the Crown would ultimately advance – in right of its Sovereign prerogative – a latent claim to all those lands which they did not cultivate, or "beneficially use and enjoy," according to such construction as might afterwards be put upon these terms.

In proof also of the consideration in which the Home Government held the peculiar land-rights of the New Zealanders, we may here aptly quote from the Marquis of Normanby's instructions to Captain Hobson. 71

"It is not, however, to the mere recognition of the Sovereign authority of the Queen that your endeavours are to be confined, or your negotiations directed. It is further necessary that the Chiefs should be induced, if possible, to contract with you, as representing Her Majesty, that henceforward no lands shall be ceded, either gratuitously or otherwise except to the Crown of Great Britain."

The words in Italics are of our own marking; and it will be observed that they clearly point at the acquisition of the right of pre-emption over all lands which the Natives might be supposed to possess. But a subsequent passage is

even yet more specific. After giving Captain Hobson directions for obviating the dangers of the acquiring of large tracts of country by mere land-jobbers, the noble Marquis continues:

"It will be your duty to obtain, by fair and equal contracts with the natives, the cession, to the Crown, of such waste lands as may be progressively required for the occupation of Settlers resorting to New Zealand."

And the remainder of the paragraph distinctly anticipates the purchase of these at a comparatively small sum of money, whilst a succeeding one is not less conclusive nor important:

"All dealings with the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith as must govern your transactions with them for the recognition of Her Majesty's Sovereignty in the Islands. Nor is this all: they must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory, the retention of which by them would be essential, or highly conducive, to their own comfort, safety or subsistence. The acquisition of land by the Crown for the future settlement of British subjects must be

confined to such districts as the natives can alienate, without distress or serious inconvenience to themselves."

Take the foregoing passages, now, and compare them with the principles which formed the Governmental point of departure, and which were strenuously insisted upon by the Marquis of Normanby, at the commencement of his letter, and there can no longer exist a doubt but that, at that period, the recognition by the Colonial Authorities, of the title of the New Zealanders to the whole of the soil, without any reservation, was as full and complete as it was formal and solemn. Referring to any acquisition of New Zealand, other than upon equitable conditions, the noble Marquis, alluding to the Ministers, says:

"They have concurred with that Committee, 72 in thinking that the increase of national wealth and power, promised by the acquisition of New Zealand, would be a most inadequate compensation for the injury which must be inflicted on this kingdom itself by embarking in a measure essentially unjust, and but too certainly fraught with calamity to a numerous and inoffensive people, whose title to the soil

and to the Sovereignty of New Zealand is indisputable, and has been solemnly recognised by the British Government."

The importance of these facts will become more apparent presently, when we come to consider the provisions of the Charter of 1846, and especially the principles laid down for the guidance of Governor Grey, in the Letter of Instructions which accompanied it. We will simply add, that the same principles as were asserted by the Marquis of Normanby, were subsequently confirmed and elaborated by Lord John Russell, in his Despatch to Governor Hobson, dated 25th Dec. 1840. 73

With reference to the sense in which the terms of the Treaty have been understood, the New Zealanders cannot surely be blamed for comprehending them in the only sense that those terms will bear. Did there, however, exist any real ambiguity in them, the Law of Nations gives the benefit of the doubt to the parties ceding, according to them the privilege of putting their own construction upon the doubtful clause; said construction being limited, of course, by the evident intent and purport of

the compact. But on this point other authority may have greater weight than the expression of individual opinion, wherefore we cannot do better than refer the Reader to the undermentioned. 74

We may, nevertheless, take this opportunity of remarking, that the Marquis of Normanby's instructions to Captain Hobson plainly imply it was the wish of Government that the New Zealanders should be afforded every latitude in this particular; for his Lordship emphatically urges as one of the fundamental conditions upon which the sovereignty was to be acquired, the procuring of "the free and intelligent consent of the natives, expressed according to their established usages;" which be it here said, they may fairly be supposed unlikely to have given to any arrangement they did not perfectly understand. In fine, the very terms in which their assent was con-conveyed, prove beyond question that they entertained no doubts as to the real signification of the Treaty; otherwise, the inference, therefrom is neither creditable to Captain Hobson

who concluded it, to the Government that ratified it, nor to the Nation that profits by it.

Having endeavoured to prove that, thus far, the Treaty of Waitangi is anything but ambiguous in its terms, let us examine whether it be not equally clear in its intent.

It will be observed, that by the first article:

"The Chiefs of the confederation of the united tribes of New Zealand, and the separate and independent Chiefs who have not become members of the confederation, cede to Her Maiesty the Queen of England, absolutely, and without reservation, all the rights and powers of Sovereignty which the said confederation or individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess, over their respective territories, as the sole sovereigns thereof." 75

It remains, therefore, to be ascertained, of what nature was the Sovereignty ceded, actual or suppositive, and which Her Majesty acquired.

From the voluminous evidence contained in the Parliamentary Papers; from published accounts of travels in New Zealand, and from the verbal testimony of those who have visited the country and are conversant with native

customs; from these various sources, it appears clearly demonstrated, that associated with the possession of perfect independence, and of magisterial control, (though rude) over their subordinate chiefs and the tribes themselves; with the power of making laws; of declaring either war or peace; in a word, with the individual jurisdiction over the country which Sovereignty is generally supposed to confer, and which prerogatives are enjoyed by the various Chiefs of New Zealand, independently of one another, and exercised over their respective districts; associated with these powers – which the Chiefs were willing to cede, in consideration of receiving the advantages of British protection – there was a right of property in the soil itself, not residing in the individual Chiefs, as Sovereigns, but in them conjointly with their whole tribe, and which whether as regarded the cultivated, the incult, or the positively desert and barren lands, they, as Chiefs, could not alienate, because they were not "the sole sovereigns thereof;" for although they were the recognised authority for treating for the sale or the alienation of the same, they possessed in it no more than an individual interest, and unless with the consent of their tribe, could not sur-

render any portion of those lands held in common by it.

Thus, it will be understood, that besides what we will call the magisterial jurisdiction, exercised individually by the Chiefs, and as chiefs, there resided in the whole tribe a collective sovereignty in respect of the soil generally; and although the head Chiefs could not control the chieftans in the disposal of such lands as to them belonged, the whole of the latter, together with the tribe, enjoyed a right to control the head chiefs in the alienation of the lands held in common.

It may, however, be proper to meet the argument of those who assert that the Treaty of Waitangi virtually conferred upon the Crown, the sovereignty absolute over New Zealand, inasmuch as it would be only fair to assume that the Chiefs who were parties to the Treaty, and who represented themselves as "claiming authority over the tribes and territories which are specified after" their respective names, possessed the consent of their tribes to assent thereto, and therefore must have ceded the peculiar sovereignty above mentioned – that is their collective proprietary right in the soil – as well as what, for

the want of a better term, we have styled the magisterial jurisdiction: hence, that Her Majesty may be inferred, logically enough, to have acquired "absolutely and without reservation, all the rights and powers of Sovereignty which the said confederation or individual chiefs respectively exercise or possess, or may be supposed to exercise or to possess, over their respective territories, as the sole sovereigns thereof;" the word "as" being, in such case, understood to imply their acting in the capacity of sovereigns absolute.

Such an assumption as this, is urged by those who maintain the right of the Crown to all the incult lands in New Zealand, comprising them under the one comprehensive term "waste;" but the second Article of the Treaty is fatal to any such right, for it distinctly "guarantees to the Chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively and individually possess, so long as it is their wish to retain the same in their possession."

If then, we could even for a moment, admit the first clause of the Treaty to be susceptible of the above construction, it is plain that the

second would amount to a palpable contradiction of it, and completely annul the claim set up for the Sovereignty absolute. As, therefore, this claim may be said to rest wholly upon a presumptive construction which entails a contrariety of terms; and as the instructions of the Government, the proceedings of Captain Hobson in accordance therewith, and the terms of the Treaty itself fully prove that such a contradiction was never intended, it is clearly demonstrable that by the Treaty of Waitangi, the New Zealanders have ceded, and the Crown of Great Britain has acquired, only the magisterial jurisdiction over their islands, together with the right of pre-emption of the soil.

It will be seen, from the foregoing arguments, that so far from being of opinion that: "the acknowledgment by the local authorities of a right of property on the part of the Natives of New Zealand, in all wild lands in those islands, after the sovereignty had been assumed by Her Majesty, was not essential to the true construction of the Treaty of Waitangi, and was an error in policy which has been productive of very injurious consequences," 76 we believe that no other construc-

tion could have been put upon it, simply because the Treaty will bear no other, let it be construed as it may. As to the error in policy referred to, this is openly asserting it to be wrong to acknowledge rights where they exist; though – and most unfortunately for the reputation of civilized nations – it has yet to be proved whether, in our relations with Aboriginal tribes, justice be not wiser policy than mere expediency: a fact that ought scarcely to be doubted, in the face of the "injurious consequences" mentioned in the Report, and which were the result of an infraction of those very rights that the Treaty was intended to confirm and to secure. 77

We feel that we cannot more emphatically conclude this chapter than by adverting to the Marquis of Normanby's solemn declaration, to the effect that "the admission of the rights of the New Zealanders is binding upon the faith of the British Crown." Also to the public announcement, to the same purport, which has at various times been made by Lord John Russell, Lord Stanley, Sir Robert Peel, and

by our most distinguished statesmen. 78 And if these are supposed to require any additional support besides their intrinsic justice, and the arguments we have adduced, we may quote from eminent legal authorities, whose opinion upon the merits of the question is entitled to the highest consideration.

We will, however, let Lord Stanley speak first.

"Lord Stanley is not prepared, as Her Majesty's Secretary of State, to join with the Company in setting aside the Treaty of Waitangi, after obtaining the advantages guaranteed by it, even though it might be 'made with naked savages,' or though it might 'be treated by lawyers as a praiseworthy device for amusing and pacifying savages for the moment.' Lord Stanley entertains a different view of the respect due to obligations contracted by the Crown of England; and his final answer to the demands of the Company must be that, as long as he has the honour of serving the Crown, he will not admit that any person, or any Government acting in the name of Her Majesty, can contract a legal, moral, or honorary obligation to despoil others of their lawful and equitable rights." 79

"On full consideration, therefore, I am clearly of opinion that the Treaty of Waitangi is of binding obligation on the two contracting parties, and that it is to be considered as the corner stone, on which all our relations, with the Islands of New Zealand, must be founded." 80

"That the Treaty of Waitangi must form the basis from which the rights and interests both of the Crown of England and the Natives of New Zealand must be ascertained." 81

56 Dr. Lushington, in Re Geelong and Dugtigalla Association. Mansfield, in Re-Campbell, v. Hall, State Trials: Carke, on Colonial Law. Sir Geo. Gipps. Par. Papers on New Zealand, 1843. Also Regina v. Symonds. Par. Papers, New Zealand, 1847.

57 To wit, the comparatively recent transactions at Tahiti.

58 Vide Chapter II., page 38.

59 Vide Captain Hobson's Proclamation. Par. Papers on New Zealand 1841, page 19.

60 Parliamentary Papers on New Zealand. 1841, page 106.

61 Appendix. Opinion of Dr. Phillimore, page 4: and Opinion of Mr. S. F. Woolmer, pages 25 to 30.

62 Appendix. Opinion of Dr. Phillimore, page 12.

63 Report of Select Committee on New Zealand, 1844.

64 Idem, page 173.

65 Ante, pages 106 and 107.

66 Also Par. Papers on New Zealand, 1841 pages 6 and 7.

67 Vide Ante. Pages 115-116. Governor Hobson to the Sec. of State, and enclosure in same, No 4, Parliamentary Papers on New Zealand. 1841, pages 15 and 19.

68 We assert this upon the faith of good private authority, supported by the accounts published in the New Zealand Journals. Vide "The New Zealander," and the "Southern Cross," of December, 1847, and January, 1848. Also plain facts relative to the late War in the Northern District. Auckland. 1847. (Ed.)

69 Revd. Dr. Beecham, Captain Fitzroy, D. Coates, and others: their evidence before the Select Committee of the House of Lords. Parliamentary Papers. 1838.

70 Parliamentary Papers. 1841, pages 15, 19, 2054, 2059, 2082. Also Report of Select Committee.

71 Correspondence with the Sec. of State, relative to New Zealand. 1848. Pages 38 and 39.

72 The Committee appointed in 1836 to enquire into the state of the Aborigines in our colonial Settlements. Vide Report.

73 Parl. Papers on New Zealand, 1841. Pages 27, 30, 39.

74 Appendix; Opinion of Dr. Phillimore. pages 5 to 9. Also Opinion of Mr, S. F. Woolmer. Pages 34, and 35, and 8l. Ante, page 126. Treaty of Waitangi.

75 Ante, page 125.

76 Vide Report of Select Committee. 1844.

77 Vide Evidence on the Wairau Catastrophe. Parliamentary Papers. 1844.

78 Vide Hansard's Parliamentary Debates.

79 Par. Report on New Zealand. 1844.

80 Appendix. Opinion of Dr. Phillimore. Page 7.

81 Idem. Opinion of Mr. S. F. Woolmer. Page 49.

CHAPTER VII.

CHAPTER VII.

ON THE LAND-RIGHTS OF ABORIGINES.

IN a former Chapter, (the Second) we adverted to the principles laid down in the Law of Nations, with respect to the right of an Aboriginal people to the entire soil of their country; and we have several times had occasion to recur incidentally to the subject, always reserving its discussion for a more convenient season. We have now to call the Reader's attention to this most important question.

"There is," says Vattel, 82 "another celebrated question to which the discovery of the New World has principally given rise. It is asked, if a nation may lawfully occupy any portion of a vast country,

in which are to be found only errant tribes, incapable, because of the smallness of their numbers, of inhabiting the whole. We have already observed, in establishing the obligation of cultivating the soil, that these tribes may not appropriate to themselves, more land than they require and than they are in a condition to inhabit and to cultivate. Their vague habitation in these immense regions, cannot pass for a veritable and legitimate taking of possession; and the people of Europe, too pent-up at home, finding a land whereof the savages had no particular need, and of which they made no actual and sustained use, were competent lawfully to occupy the same, and there to establish colonies. We have already said, the earth belongs to the human race for its subsistence. If each nation had desired, from the commencement, to appropriate to itself a vast country, therein to live only by hunting, fishing, and on wild fruits, our globe would not suffice for the tenth part of the men who inhabit it at this day. One does not, then, exceed the views of Nature, in restricting savages to narrower limits. Nevertheless, one cannot but laud the moderation of the English Puritans, who the first established themselves in New England. Although provided with a Charter from their sovereign, they purchased of the savages the land they wanted to occupy. This praiseworthy example was followed by William Penn and the colony of Quakers which he conducted into Pennsylvania."

In the first place, we would ask the Reader to note that the above formula clearly specifies "errant tribes;" wherefore, as the New Zealanders are not a nomadic, but an agricultural people, we might fairly consider them as not included in the same category as savages who are incapable of inhabiting and cultivating their territory. We will, however, for the argument's sake, not less than in order to treat the subject in its largest sense, consider them not excepted.

It was to the foregoing principle that Sir George Gipps referred, in his remarkable speech in Council, on the second reading of the Bill For appointing Commissioners to inquire into Claims to Grants of Land in New Zealand. 83

"The uncivilized inhabitants of any country have but a qualified dominion over it, or a right of occupancy only; and until they establish amongst themselves a settled form of Government, and subjugate the ground to their own uses, by the cultivation of it, they cannot grant to individuals, not of their own tribe, any portion of it, for the simple reason, that

they have not themselves any individual property in it."

Having already pointed out the contradictions which this statement of Sir George Gipps involves, we shall confine ourselves to the discussion only of the abstract right. We have, however, yet an authority to quote.

In the Letter of Instructions which accompanied the New Zealand Charter of 1846, Earl Grey thus writes to Captain Grey, the Governor of this Colony:

"The opinion assumed, rather than advocated, by a large class of writers on this and kindred subjects is, that the Aboriginal inhabitants of any country are the proprietors of every part of its soil of which they have been accustomed to make any use, or to which they have been accustomed to assert any title. This claim is represented as sacred, however ignorant such natives may be of the arts or of the habits of civilized life, however small the number of their tribes, however unsettled their abodes, and however imperfect or occasional the uses they make of the land. Whether they are nomadic tribes depasturing cattle, or hunters living by the chase, or fishermen frequenting the sea-coasts or the banks of rivers, the proprietary title in question is alike ascribed to all.

"From this doctrine, whether maintained on the grounds of religion or of morality, or of expediency, I entirely dissent. What I hold to be the true principle with regard to property in land is that which I find laid down in the following passage from the works of Dr. Arnold, which I think may safely be accepted as of authority upon this subject, not only on account of his high character, but also because it was written not with reference to passing events, or to any controversy which was at that time going on, but as stating a principle which he conceived to be of general application: –

"'Men were to subdue the earth: that is, to make it by their labour what it would not have been by itself; and with the labour so bestowed upon it came the right of property in it. Thus every land which is inhabited at all belongs to somebody: that is, there is either some one person, or family, or tribe, or nation, who have a greater right to it than any one else has; it does not and cannot belong to everybody. But so much does the right of property go along with labour, that civilized nations have never scrupled to take possession of countries inhabited only by tribes of savages – countries which have have been hunted over, but never subdued or cultivated. It is true, they have often gone further and settled themselves in countries which were cultivated, and then it becomes a robbery; but when our fathers went to America and took possession of the

mere hunting-grounds of the Indians – of lands on which man had hitherto bestowed no labour – they only exercised a right which God has inseparably united with industry and knowledge.'" 84

We reserve to ourselves to point out, when we come to examine the New Zealand Charter of 1846, the evil results of applying this false theory in legislating for Aborigines. As, however, Earl Grey assumed – basing his assumption upon the principles laid down by Dr. Arnold – that the Queen is entitled in right of her Crown to any waste lands in the Colony of New Zealand; and as his Lordship next proceeded to define waste lands as being lands lying incult; finally, as he so strongly urges the observance of Dr. Arnold's theory, and as Dr. Arnold's theory is founded upon the dogmas of Vattel, we cannot ourselves do better than refer to the same authority, since so important a part of our Colonial policy is regulated by it.

In the passage we have already quoted from this distinguished and justly celebrated author, it will be remarked that he speaks of having already established, as a general principle, the obligation of cultivating the soil; and upon

turning to the Chapter, entitled, "ON THE CULTURE OF LANDS," we find the following passage: 85

"The cultivation of the soil is not only recommendable to government on account of its extreme utility, it is even an obligation imposed upon man by Nature. The whole Earth is destined to nourish its inhabitants: but it cannot suffice thereto, if they do not cultivate it. Each nation is, then, obliged by the natural law, to cultivate the soil which has fallen to its share, and it has no right to extend itself, nor to recur to the assistance of others, except insomuch as the soil which it inhabits cannot furnish it with what is necessary. Those nations, such as the ancient Germans, and a few modern Tartars, which, inhabiting fertile countries, disdain the cultivation of the soil, and love rather to live by rapine, are wanting towards themselves, injure their neighbours, and deserve to be exterminated as ferocious and harmful beasts. There are others of these, which, in order to avoid labour, will live only by their hunting, and their herds. This might be, without contradiction, in the early ages of the world, when the earth was more than sufficient of itself, for the wants of the small number of its inhabitants. But at the present day the human race has so greatly multiplied itself,

it could not subsist, if all nations desired to live after this manner. Those who yet hold to this idle mode of life, usurp more land than they would require with honest labour, and cannot complain, if other nations, more laborious and too much pent-up, come and occupy a portion of it. Thus, whilst the conquest of the polished empires of Peru and of Mexico was a crying usurpation, the establishment of several colonies on the continent of North America, might, by being restricted within just limits, have been only very legitimate. The nations of these vast countries over-ran rather than inhabited them."

To these principles, so comprehensive, so just, so universally applicable, we give our cordial assent; for, acting upon these, injustice and oppression would be impossible; and had Dr. Arnold based his theory upon them, in their integrity, and that then as now, it had been recognized as the basis of our Colonial policy in regard to the acquisition of lands, we should not have seen our Legislature convict itself of the very gravest errors: to give them no stronger appellation.

It should be borne in mind that we fall back upon the same authorities as our opponents; and that we accord to Vattel only the same amount of consideration as they do, con-

senting to be ruled by his doctrine, in all cases where they allow it to obtain, but without according to them the privilege of arguing upon garbled versions of the text, or of wresting the same to support a theory which it condemns. Thus, to enunciate the great principle contained in the last extract from the Jus Gentium, we admit, "that each nation is obliged, by the natural law, to cultivate the soil which has fallen to its share, and that it has no right to extend itself, nor to recur to the assistance of others, except the soil which it inhabits cannot furnish it with what is necessary for the subsistence of its people."

It is manifest, then, that the obligation of cultivating the soil is imperative, not on savage nations only, but on civilized communities also; and that the positive right of the latter to extend their dominion, depends upon their fulfilment of the great condition whereupon that right is founded, namely: that their own soil must be wholly under cultivation, and proved to be incapable of further producing a sufficiency for the excess of its population. This fact established, it may then seek the means of extension.

But Bulkley, Cotton Mather, Dr. Arnold, and

others, have wholly lost sight of this important condition; and whilst, as a plea for seizing upon the incult lands of Aborigines, they have advanced their right to do so as being founded upon the incapacity or incompetency of these to fulfil the obligation of cultivating the soil, they have neglected to apply the broad principle at home, and thus have stultified their own judgment and their acts.

The right of a nation discovering, to seize upon lands already peopled, though newly-found, can be maintained solely upon these grounds; and hence the right inchoative which has been urged on behalf of discovery, is limited by the same rule. In a word, and falling back upon the Jus Gentium as our guide, no nation discovering can enjoy a right inchoative of occupying incult lands in a newly-found and already peopled country, unless it be first established that it have itself no incult lands at home.

This is the broad, abstract principle, though Political Economists may object to it on the untenable plea that the application of it would check Commerce. But if nations will be commercial rather than agricultural – and there is no rule nor law which can arbitrarily

regulate the conditions of their existence; so frequently an accident of geographical position – they must not any the more violate the universal law, but the rather respect it, as a surer means of affording them increased opportunities of establishing a prosperous interchange of their peculiar manufactures or commodities for the productions they cannot themselves raise, and are, therefore, compelled to procure of those nations which can.

But it seems never to have occurred to the advocates of the Arnoldian theory, that their arguments were founded upon imperfect premises: that whilst the theory in itself is good, their application of it is vicious, because partial: that if the principle of the right of property in land depending entirely on labour "must," as Earl Grey asserts in the Despatch alluded to, "be considered fatal to the right which has been claimed for the Aboriginal inhabitants of New Zealand," and by a parity of reasoning, be fatal also to that claimed on behalf of the Aborigines generally, then must it likewise set aside all individual right of property as now existing in civilized States, save only where it is established upon the fact of the expenditure of labour thereupon. And so true

is this, we find that by this rule Vattel positively restricts individual right of property; for he says, speaking of the culture of the soil: 86

"This subject, then, deserves all the attention of the Government. The Sovereign ought not to neglect anything in order to procure to the lands under his rule, the very best culture. It must not be allowed to communities, nor to individuals, to acquire extensive lands, and to leave them uncultivated. Those rights of common, which deprive a proprietor of the free disposal of his land, which will not permit him to farm it, and to give it the most advantageous culture, these rights, I say, are contrary to the welfare of the State, and ought to be suppressed, or reduced within just limits. The property introduced amongst citizens does not hinder the Nation of its right to take efficacious measures in order that the totality of its soil may be made to produce the largest and the most advantageous revenue."

This, then, is a far more important question than, at first sight, it appears, for it involves principles which are of general application; therefore, whilst we admit their validity and

soundness as against the land-rights of Aborigines, we must not lose sight of the fact of their being as strictly applicable to those of civilized nations. On the other hand, if the latter, from accident or from necessity of internal polity, deem it expedient to set aside the principle in respect of themselves, yet to enforce it in respect of Aborigines, they are in justice bound to accord to these an adequate compensation for the lands they take from them, and to which they cannot dispute their right, any more than they can set up a claim to such, as acquired by discovery, when, at the same time, they are themselves violating the law on which that claim is founded.

Arguing, however, as the Arnoldians argue, the general principle will be found unsound, because it is not generally applicable; for, a right of property in moors, in wastes, and in similar lands, unreclaimed by industry, and used only for sporting, is recognized by the laws of the British realm. Yet, what in fact are the lordly owners of such lands? mere hunters, like the North American Indians, save only in a far lower sense, because the game of these is their food, but of those their

mere sport; yet this, the lowest description of property, is protected by the severest enactments, whilst the abuse of the self-same principle robs the poor Indian of his subsistence. We contend, for him, that if property is recognized in game, for sport, then ought it to be, with far greater reason, recognized in game that is for food, and necessarily in the land that supports it.

But if we are to admit that labour alone gives a right to land, we should like to know to whom those lands belong which are positively barren and uncultivatable? And what, too, become of the titles of our own ducal and lordly proprietors to their vast estates? How can they, upon this principle, justify their right to retain possession of them, in the face of the clamour of the agricultural labourer, who asks only to be allowed to work in order to subsist, and to save himself from the shame of parish relief? By upholding, in its integrity, a doctrine such as theirs, we must at once concede to our starving agriculturists, the right of entering upon the occupancy of all the uncultivated lands of the United Kingdom, under what condition soever held by their proprietors, because, in right of their labour,

the working masses of the peasantry would have the preferable claim thereto.

Give up your estates, then, you who hold them not by right of labour, and who eat the bread of idleness! Or put your hand to the plough and to the harrow, to the scythe and to the reaping-hook; and when you have wrung a produce from the stubborn glebe, and none remains untilled in this broad fertile land of ours, sit you down and preach your doctrine, for you may do it then unblushingly; for you may then, in proof of your belief in it, raise your hands, hardened with toil, and with them wipe the sweat-drops from your brow, swarthened by the harvest-sun, whose earliest ray has risen, and whose last glimmerings have set upon your labour. Yes, and then the starving husbandman will have no reason to cry out against the hardness of a lot that leaves him no choice between expatriation and starvation, or its nearest kin parish relief. He will have no right to say to you:

"Why shall I leave my father-land, to go and till the soil of a distant clime, when here amongst my kindred, there is land enough for me to labour? land now unproductive, but which I can force into fruitfulness; land which

would yield to the revenue of the country, support its thousands of hardy peasants, and produce a surplus for store! No! I will not go and take from the Indian and the Black, but I will remain and take from you who labour not, and yet who say labour giveth right to land. So, quick begone! Let the mansion disappear, and the park, and the preserve, and the waste; and in their place let us have homesteads and barns, granaries and cattle-sheds! let us have fields of corn, and barley, and grain of all kinds. Let us have all these good things, to which you say our labour entitles us, and let us leave the Indian to hunt and to fish, and the New Zealander to till as he listeth: when there is no more land at home, we will go and take from them, what they have to spare."

It surely has never occurred to our opponents that industry cannot constitute the first title to land, because there must exist a right precedent, namely; a right to enter upon it, for the purpose of expending labour. The question would then arise as to the kind of right by which the lands in our own and other civilized countries are held either by individuals or by the Crown? This would be found to be a de-

rivative right, on the grounds of purchase, or of gift, or of succession, either of which yet comprises an antecedent right of disposal once resident in the seller, the donor, or the ancestor, and this right again would, in the majority of cases, be traceable to acquisition through conquest. Abstractedly, then, the land-rights of the New Zealanders particularly, and of Aborigines in the aggregate, rest upon a less objectionable basis, generally; but where the accident of acquisition is identical, the same rule as obtains with us, ought to govern their right of possession, for, under what conditions soever the soil may have been acquired, the Chiefs are as much the lords and the nobility thereof, and together with their tribes, its proprietors, as are our own Dukes, and Lords, and Squires, the owners of the vast estates they have and hold in this country, but a large portion of which they do not "beneficially enjoy."

But, it may be urged that this principle can be supported on the grounds of the distinction which exists between civilized and uncivilized man. If, however, the principle be a general one then civilized communities, being better able to comprehend it, are more strictly bound

thereby than savage nations who cannot; wherefore, with the former rests the duty of first observance, in order to justify their right of enforcing the same upon the latter.

It is not a question with us whether tribes called savage ought or ought not to be left in the undisturbed possession of their uncultivated lands, when for the requirements of civilization those lands may be necessary. On this point we cannot entertain a doubt; but it being proved that the right to the soil of their country, is not derived from the expenditure of industry thereupon, but rests upon an antecedent right of occupancy, under whatever conditions or circumstances acquired, we must maintain that civilized nations possess no abstract right of extinguishing native title, save by purchase, or by other adequate compensation; and that the fulfilling of this condition of acquiring new territory is imperative upon them, as long as they continue to violate, in their own case, the law by which they assert that their acquisitions are regulated.

The position we assume is substantiated by Grotius, 87 who denies to one nation the right

of seizing the uncultivated lands of another, and thus over-sets the ex cathedra dictum of Dr. Arnold. 88

Having asserted the foregoing principles to be generally applicable, and founded upon the sound basis of natural and received law, Sir George Gipps proceeds to state that they have also acquired validity, by use, they being the recognised foundation of American law, as laid down by the Supreme Court of the United States. His arguments, however, go to prove only that the right of pre-emption has, for three centuries, been considered to vest in the Crown acquiring new territory, and do but confirm the fact of its having been the practice of the Crown to extinguish native title by purchase, consequently to recognize it as extending to the soil generally.

We find that in 1724, the Rev, Mr. Bulkely, of Connecticut, advanced the doctrine, that in a state of nature, the only title to property was the labour by which the same is appropriated and cultivated; Cotton Mather subsequently espoused a similar opinion; and Dr. Arnold and Earl Grey appear to have followed in the

same track. Yet, we cannot discover that in practice, this principle ever received any support; at least in America, where the early Colonists were not satisfied to settle, and did not deem it expedient to do so without the consent of the Aborigines, procured by fair purchase. Here, then, is proof positive that labour was not considered to constitute the only right of property in land, for by the act of purchase, the prior right of the Indians to the whole soil seems to have been generally if not uniformly conceded, as well as their legal claim to retain possession thereof; they being for their own interests' sake, merely precluded from disposing of it according to their own will or caprice, except to the Government claiming the pre-emptive right. On the other hand, and with respect to the latter privilege, the late Chancellor Kent states, 89 that it was always understood to amount only to the exclusive right of purchasing such lands as the Natives were willing to sell; and that the English Goverment bought them at a price they were willing to accept, but never coerced a surrender of them.

It remains for us now to prove that the custom has been generally observed, of acquiring, by purchase, lands appertaining to Aborigines, and consequently of recognising their title thereto, independently of the expenditure thereupon of any labour.

It is well-known that William Penn acquired Pennsylvania by fair purchase of the Indians, and in 1783 the Legislature of this State asserted it to have been its uniform practice to extinguish native title, by the same just method. 90

It will also be remembered that Vattel lauds the moderation of the Puritans, who from time to time purchased of the Indians, the lands they (the Puritans) required in order to colonize them.

The State of New England was also acquired by purchase, and in 1633, Governor Winslow, of the Plymouth Colony, states in his letter, that before King Philip's war, the English did not possess one foot of land in that colony but had been obtained, by honest purchase, from the Indian proprietors. 91

Massachusetts too, was obtained under like conditions, its Legislature imparting, in 1633, protection to the Indians, in the enjoyment of their improved lands, hunting-grounds and fishing-places; declaring them entitled, as much as the English, to relief in any of the Courts. 92

We also find that in New Jersey, the proprietors very early secured all their titles, by giving compensation to the Indians; that in 1633, Governor Calvert planted Maryland, also after fair purchase from the Indians; that Georgia was settled under similar good auspices, as was likewise Savannah, together with a considerable tract of land bought by Governor Oglethorpe, of the Creek Indians in 1733, and 1738, and further confirmed by solemn treaties. 93

Again, the King's Proclamation of Oct. 1763, made after the definitive treaty of peace concluded at Paris on the 10th of February of the same year; the Proclamation which raised the question in the celebrated Grenada case; 94 distinctly recognizes the territorial dominion

of the Indians, as existent antecedent to their cession of the soil, and asserts the practice of acquiring the same by cession and purchase, even prohibiting the latter, unless effected in the name of the Crown, at a public assembly of the Indians.

How then is it possible, in the teeth of such evidence as this, to maintain that "labour alone gives right of property in land," when it is proved that the English, the Americans, and the Dutch 95 invariably extinguished Aboriginal title by purchase, and thus recognized its preexistence independently of industry? It is important that we should bear this fact in mind, for the practical force of it will be discovered anon. Having, however, proved that the Arnoldian theory is unsound, even as an abstract principle; that it has never been recognised in practice, but, on the contrary, is distinctly disavowed by the highest legal authority in the United States; an authority the most competent as being the most deeply interested in the question: we have yet to show that it

is absolutely inapplicable to New Zealand, where the justness of Dr. Arnold's reasoning is generally denied; and we may be permitted to add, that this identical reasoning, which Earl Grey asserts "must be generally admitted," is described by Kent, 96 under the words "loose opinions and latitudinarian doctrines. Why then make these the foundation of our Colonial Legislation, and advocate a principle which cannot be caried out save by an infraction of justice? The so doing is a mere wanton act of power, because experience proves that the Aborigines are ever ready to part with their land at a comparatively low sum, and thus, the principle is not practically worth contending for, though it is so important to combat it.

It will have been remarked that Dr. Arnold's reasoning applies exclusively to hunting tribes; but Earl Grey himself admits that "the New Zealanders, when the European settlement commenced among them, were not a people of hunters; they lived, in a great measure at least, upon the produce of the soil (chiefly perhaps its spontaneous produce) and practised to a certain extent a rude sort of agriculture." 97

Thus, the principle his Lordship has laid down, clearly applies not to New Zealand, whilst Dr. Arnold qualifies it as "robbery to take possession of countries which are cultivated;" and adds, 98 "we have done with wild beasts' nature, and are living according to Law and right, not according to Brutalities and might."

And then again, we come to the difficult point of determining the line which separates the savage from the civilized; and although we feel that there exists a real difference between the extreme of these two classes, we confess our inability to appreciate what precisely constitutes it, or where just legislation for the one can no longer be advocated as just legislation for the other. According to the usual test, it would appear that for a man to be regarded as civilized, it suffices for him to be born in a country "where the art of making coats and trowsers has been attained;" now there is no apparent merit of his own in this, nor does his investment seem to confer wisdom, or experience, or any high mental qualification, any more than it causes him to abstain from those evil courses and savage habits which are

reputed to distinguish man in his wild state. It is true these are kept somewhat in check by laws, but when the terror inspired by the latter has been overcome, or they have been suddenly set at defiance, we find civilized man – though habited differently from the New Zealander, or the African, or the Indian – guilty of acts even more atrocious than are committed by the less favoured heathen; acts far lass excusable, because he has the light of Christianity to guide him in a better path.

The recent cold-blooded slaughters at Paris, at Prague, at Naples, and the fearful mutilations of the dead victims that followed thereupon, come in as illustrative of our position. Even at home we have had our Mitchels reveling beforehand in the contemplation of the injuries to be inflicted by most cruel engines of a hideous warfare; racking their depraved minds for the invention of diabolical means of exterminating their fellow-citizens, and gloating over the spectacle of a country imbrued in civil contention, and over the horrors incidental to so grievous a calamity. What shall we say of the cruelties of the French in Algeria? of our own wrong doings in India, under a Clive and a Warren Hastings? of the Mame-

luke massacre by a highly civilized Egyptian? of the deeds of the polished Spaniards, in all parts of the world, but more especially in Mexico and Peru? of the refined barbarities of a Borgia and of a Nicholas? of the satannic tortures invented by furious religious bigots, whether inflicted under the sombre mask of a Grand Inquisitor, the warrant of a '* right royal Harry," or of a Mary, or under the less authoritative veto of the Puritan and the Covenanter? What shall we say of the noyades, and guillotineades, and mitrailleries of the Revolution of '89? of the horrible atrocities of the Slave-trade? of the commandos in Caffraria; of our heinous war in China, undertaken to coerce the subjects of an independent monarch to buy poison of our merchants? What shall we say of all these acts of civilized nations? highly civilized nations! most highly civilized nations! Is it that in proportion as men become civilized, they grow the more sanguinary and cruel? Then let not in the light of civilization upon savages, for they will taunt us with being even more savage than they.

Does civilization consist in the presence of laws and institutions adapted to our condition

and requirements? Then does it, only in a lesser degree, exist amongst savages, who are regulated by their own rude laws and customs, which are as binding upon them as are ours upon us.

Does civilization consist "in the possession of forethought, of a habit of calculating consequences, of patience in deliberation, in readiness to hear reason and to take good advice, in a large power of self-command?" then go, civilized people, go to the Red Indians, sitting around their council-fires; to the New Zealanders at their Koreros, to the Caffres assembled at their Kraal; go to these and learn civilization and wisdom, for amongst these, you shall find both in active practice, and not regarded as virtues; whilst amongst yourselves, the exercise of these elevated mental qualities entitles the possessor of them to the distinction of being regarded as a philosopher, and of ranking with the Seven Sages of ancient Greece.

Christianity does not, evidently, constitute civilization, although the progress of the latter must be furthered by the extension of the former. We have been accustomed to regard the ancient Babylonians, the Egyptians, the

Romans, and the Greeks as highly civilized; even more so than ourselves, the moderns of Europe; yet were they Pagans and Idolaters; hence, the sublime doctrine of Christ cannot form the rule by which we are to identify civilization as contra-distinguished from uncivilization. Whilst then we find it impossible in this respect to raise an arbitrary standard, we should be content to admit the simple fact of the existence of the two, but not upon it establish dogmas which are to be regarded as the foundation of legislation for those we call uncivilized, since it may be found that, by establishing ourselves as a point of comparison, we challenge contrast with other nations, weighed in whose balance we may be found wanting, and, in some respects, even to a greater extent than Savages.

But even admitting that Dr. Arnold's doctrine might apply to those tribes which in common parlance are called savage; we do not think the New Zealanders ought to be regarded in this light, or that they can be, for not only is a large proportion of them Christian, but able to read and write, some their own language, and English, others only their own: and this was the test which Earl Grey fixed

for eligibility to the elective franchise amongst them. However, and even granting them to be savages, still should we be bound by the terms of the Treaty of Waitangi, for savages can both make and respect treaties, as is abundantly proved by those which the English Government has, at various times, entered into with the North American Indians, and likewise the Legislature of the United States, which, in the space of sixty years, concluded with native tribes, two hundred and eighteen distinct compacts. 99 "And, it must be granted," writes Kent, 100 alluding to the Six Nations, "that the faith of Treaties has nowhere, and at no time, been better observed, or maintained with a more intrepid spirit than by those generous barbarians."

Whilst then, the British Legislature confesses itself bound to respect the Treaty of Waitangi, we confess our inability to comprehend the motive for the advocacy of principles, which, if carried out, would effectually set aside its provisions.

In conclusion, and to anticipate any charge of Utopianism, we would be distinctly under-

stood as asserting it to be practically wiser and sounder policy on the part of any Government, to admit, as a ruling principle, the proprietary rights of Aborigines in the very largest acceptation of the term, and, on all occasions, to acquire by purchase, rather than by conquest or by usurpation. Where, as in Australasia, the Aborigines are scanty in number, scattered in their occupancy of the soil, miserable in their resources, limited in capacity, and inert of habit, it would appear to have been doing them no injustice nor injury to seize upon their country without giving them compensation; for it may be argued that the land was comparatively valueless to them, and abundance remained, even surplusage, for all their necessities. But let us carry out this principle, as, unfortunately, it has been in reality done, and is now being continued; and we shall find that as the Europeans extend by emigration over the land and multiply upon it, the Aborigines are necessarily restricted to narrower and narrower limits, until they no longer own a foot of ground that is of the smallest value to them, as adapted to their mode of life. The white man hunts down, for sport or for purposes of trade, the animals and the fowl which consti-

tute the natives' food; their ordinary subsistence failing them, the natives, who are unable to understand by what right the stranger despoils them, then fall upon the flocks of the Settler, or rob his homestead, and suddenly find themselves entrammeled within the meshes of a law which teaches them that they must not steal from the white man, but which casts not its protection over them from whom he has first stolen. Such an anomaly, and so crying an injustice, increases the exasperation which these unfortunates feel at losing their birthright in their own land, and a feud of races springs up that invariably terminates in the annihilation of the Aboriginal tribes, after, perhaps, many years of mutual aggression, during which the Colonists suffer grievous loss, the progress of the Colony is checked, and the mother-country not only loses resources and revenue, but is impoverished by constant drains upon her wealth for the maintenance of military and police establishments.

If, on the other hand, we had commenced by purchasing the districts we intended to colonize, giving in return for the land that was theirs, compensation in clothes or other useful articles, or even of money, of which we might have

gradually taught them the value and the use, we should at the outset have inspired them with confidence in us, and instead of fleeing from the neighbourhood of our Settlements, they would have had an interest in congregating about them; a circumstance which could not but have been productive of mutual advantages. The first and greatest would have been to the Settlers, who, in the Natives, had found at hand the very labour they profess so much to require; the Natives, on their side, having incentives to work, namely, hope of gain and the acquisition of experience in agriculture, and having reason to desire more intimate association with the European, would gladly have hired themselves out to the latter; the term of their labour would have served them as an apprenticeship, and industrious example and kindness would in time have brought forth their fruit, inasmuch as either as labouring husbandmen, or as cultivators on their own account, they would have been producers, and augmented by their new requirements, the demand for home manufactures.

It cannot be denied that where coercion and injustice alienate, kindness and equity attach; and the truth of this axiom has been abun-

dantly proved in all individual relations with Aborigines, so that the policy of a large humanity as the corner-stone of a systematic colonization must be apparent to the most Boeotian intellect. Now it is impossible to admit that any such system can be established except we begin by recognising the rights of Aborigines to the soil they inhabit, not taking from them any more than we pay for; and we contend that this course only is equitable, because we cannot found our right to seize their land, upon the principle of necessity, having abundance of waste at home, upon which labour might advantageously be employed. That the whole of a vast Aboriginal territory may be acquired for a mere nominal consideration, is rather an argument in favour of its acquisition by purchase, for even the least scrupulous will admit that where justice costs so little, it is surely not worth while to violate its rules; and in cases where a difficulty exists to determine the ownership as resident either in tribes or in individuals, and the land is absorbed by the Crown a certain sum arising from the revenue of what is brought into cultivation, or from what is sold, might be set aside as an Aboriginal Fund, ultimately to meet the expense of educating the Natives, and of promoting their

political organization, so as by degrees to wean them from their rude habits, to incorporate them with our own Saxon or Celtic races, and bring them to understand and to appreciate the benefits and the advantages of our institutions, which all alike would then possess an interest in upholding. By adopting some such course as this, there can be no doubt that the results would prove both beneficial and enduring, and that Christianity might then indeed become the pioneer of Colonization, for the principles of the one would then be not in antagonism with the sublime doctrines of the other.

But alas!

82 Droit des Gens. c. xviii. sn. 209.

83 Par. Papers. New Zealand. 1841. Page 63.

84 Par. Papers on New Zealand, 1847.

85 Droit des Gens. Chap. VII. sn. 81.

86 Droit des Gens. Chap. vii. sn. 78.

87 Ante. Chap. II. Page 4l.

88 Vide Appendix. Opinion of Dr. Phillimore. Pages 13 and 14.

89 Kent's Com. Sec. 51. Vol. III. Pages 383 and 384.

90 Kent. Vol. III. Page 394.

91 Ibid. Vol. III. Page 391.

92 Ibid. Vol. III. Page 392.

93 Kent. Vol. III. Pages 394 and 396.

94 Campbell versus Hall. State Trials. 20.

95 "Whilst they held and governed the Colony of New York, the Indian titles were always respected and extinguished by fair means, and with the consent of the Natives." Kent. Vol III. Page 392.

96 Vol. III. Page 389.

97 Parl. Papers on New Zealand. 1847. Page 68.

98 Vide his Newspaper Article. June the 11th 1831.

99 Collection of Treaties, published by the Commissioner of Indian affairs.

100 Vol. III. Page 393.

CHAPTER VIII.

CHAPTER VIII.

THE LAND-QUESTION. NEW ZEALAND UNDER GOVERNORS HOBSON, SHORTLAND AND FITZROY.

NO one who has paid any attention to the affairs of New Zealand, can for a moment doubt that their satisfactory adjustment and the prosperity of the Colony depended, from the very first, upon the speedy and equitable solution of the Land-question; and that to its having been allowed to remain in abeyance must be attributed the chief difficulties which have so long distracted that country, and entailed so much expense and anxiety upon this. It was, it will be remembered, upon the very important point, namely, the security of their lands, that the Natives entertained such mis-

givings; and doubtless, the Treaty of Waitangi was intended to be at once the first step towards quieting their apprehension, and a pledge that no future infringement of their land-rights was contemplated. Under this impression the Missionaries, Church and Wesleyan, co-operated with the Lieutenant-Governor in procuring the assent of the Aborigines to the Government measure; under this impression, too, the Aborigines accepted the Treaty, and by its provisions the Ministers of the Crown and the greatest statesmen of the realm have solemnly declared it to be the intention of the Government to abide, how much soever opinions may differ upon the soundness of the policy which dictated it. Hence, then, naturally arises the question, namely; what now is the point at issue?

To give a reply in a few words, the Charter of 1846 and the Letter of Instructions which accompanied it, are found to be a violation of the Treaty of Waitangi.

Previously, however, to discussing this point it will be necessary for the Reader to remember the state of affairs in New Zealand antecedent to the conclusion of the Treaty. At

this period the Land-claims may be considered to have been thus divided:

1st. Those of the Natives, as the natural proprietors of the whole soil, and as the sole sovereigns thereof: their rights extending over the entire Islands, save and except such portions as they had sold for an adequate compensation.

2ndly. The claims of the Church Missionaries.

3rdly The wholesale claims of the New Zealand Association.

4thly. The claims of individual Settlers, founded upon purchases asserted to have been made of the Natives.

The operation of the Treaty of Waitangi, conjointly with the Government proclamation annulling all titles to land save such as should be confirmed by the Crown, was the resolving of these claims into a different category, namely:

1st. Those of the Natives, which were thereby acknowledged intact and guaranteed; the owners of the soil being only limited as to any future disposal thereof, by the operation of the Crown's right of pre-emption.

2ndly. The claims of the Church Mission-

aries, of the New Zealand Association, and of the Settlers, the validity of which was to be determined by a Land-Commission.

3rdly. The latent claims of the Crown, in virtue of the ceded right of pre-emption; and its positive claims, assumed in right of the royal prerogative, and asserted as extending over lands called "waste," and over "lands not occupied or enjoyed" by the Natives.

Now, by the Treaty, the latent claims of the Crown were clearly limited to such lands as the Natives were disposed to alienate, wherefore we have to do only with its positive claims; and as much stress has been laid upon the fact of the employment by Lord John Russell, of the terms "waste" and "occupation and enjoyment," we will, for the present, confine ourselves to a consideration of the obvious sense in which it was intended that the terms referred to were to be understood. They occur in the official documents of 1840, by which New Zealand was constituted a colony separate and distinct from that of New South Wales, and Captain Hobson was appointed Governor thereof; the one by Royal Charter, dated the 16th. November, and the other by

Letters Patent under the Great Seal, and dated on the 24th. of the same month. 101

Lord John Russell's Despatch, which accompanied the documents in question, contained the following passages.

"V. The sale and settlement of waste lands is the next of the general topics to which I propose to advert in this despatch.

"The Marquess of Normanby has anticipated and provided for the great and peculiar difficulty by which the regular colonization of New Zealand was impeded. I refer, of course, to the large claims advanced by persons in virtue of contracts or grants said to have been made by the native chiefs. In my present want of information as to the measures which may have been taken to give effect to his instructions, I can state merely that Her Majesty's Government perceive no reason for receding from them. It is absolutely necessary, 1st, that a commission should ascertain, and that the law should determine what lands are private and what are public property; and, 2ndly, that all lands held by private persons, and not actually in cultivation, should be subjected to an annual tax, the non-payment of which should be followed by the confiscation and seizure of the land. Until this is done,

there can be no reasonable prospect of the colony making any effectual advance in agriculture, wealth, or sound internal polity.

"When the demesne of the Crown shall thus have been clearly separated from the lands of private persons, and from those still retained by the aborigines, the sale and settlement of that demesne will proceed according to the rules laid down in the accompanying instructions under the Royal Sign Manual. It would be superfluous either to repeat or to abridge those instructions in this place. It may be sufficient to say, that they proceed on the following principles; namely, 1st. That all the Lands of the Crown are to be surveyed as promptly and as accurately as may be compatible with the means you possess." et seq:

In these passages we have distinct allusion made to "waste lands;" to lands that are "private property;" and to lands that are "public property," or the "demesne of the Crown;" but we may infer, also, that "waste lands" were enumerated in the latter category; thus we have first to determine to whom belonged the waste lands which were to be considered as public property, or as constituting the demesne royal.

It will be remembered that the Marquis of

Normanby specially defined in what manner Captain Hobson was to acquire such "waste lands as might be progressively required for the occupation of the Settlers resorting to New Zealand," namely; by the cession thereof to the Crown "by fair and equal contracts with the Natives;" wherefore it is evident that the Crown did not contemplate the absorption, in right of its prerogative, of the waste lands which the Natives possessed. In the foregoing passages, it will be remarked that Lord John Russell also urges the continuance of the same line of policy, and hence, the "waste lands" referred to could signify only those lands that were claimed by British Settlers, and might then be lying incult.

Again, a commission was to ascertain and the law was to determine what lands were private, and what public property or the demesne of the Crown; therefore it is clear that the Crown's right to waste lands in New Zealand was not advanced in right of the royal prerogative, but was made to depend upon the decision of the Land Commissioners, and consequently did not extend to the incult territories possessed by the Natives.

Still founding his policy upon that of the

Marquis of Normanby, Lord John Russell defines the rule by which the Land Commission was to create a demesne royal, with the view of ultimately selling it for purposes of colonization; thus, a tax was to be imposed upon all uncleared lands within the British settlements, and the forfeiture declared of all those in respect of which the tax should remain for a certain period in arrear.

Here we have uncleared, that is uncultivated lands within the British settlements, distinctly mentioned, and their forfeiture under certain contingencies advised; but no allusion is made in any manner to the waste lands of the Natives, nor is there any claim thereto asserted by the Crown under any plea whatsoever. Hence, we may conclude that the demesne of the Crown in New Zealand was to be derived:

Firstly. From such lands as should revert to it, in consequence of non-conformity with the stipulated regulations.

Secondly. From such lands as, in exercise of the right of pre-emption, the Crown should acquire from the Natives, by fair and equal contracts with them.

And these regulations were in strict con-

formity with the provisions of the Treaty of Waitangi, and with the policy which dictated it; as were also the clauses of the "Bill for appointing Commissioners to enquire into claims and grants of land in New Zealand," which passed the Legislative Council of New South Wales on the 4th of August 1840, and forthwith became law in its then dependency, New Zealand.

An objection, however, has been raised to this unlimited recognition of the land-rights of the Aborigines, founded upon certain words in the Royal Charter and the Instructions of 1840, which are asserted to restrict native title, and to imply, on the part of the Crown, the assumption of prerogative rights over waste lands appertaining to the New Zealanders.

Clauses VI., VII., and VIII., of the Charter, and Clause 37 of the Instructions aforesaid, give to the Governor of New Zealand full power to divide the Colony into districts, counties, hundreds, townships and parishes, and to appoint the limits thereof respectively; also to make in the name of the Crown, grants of "waste lands to us belonging," to private persons for their own use and benefit, or to any

persons, bodies politic or coporate, in trust for the public uses of British subjects there resident –

"Provided always, that nothing in these our letters patent contained shall affect or be construed to affect the rights of any Aboriginal natives of the said colony of New Zealand, to the actual occupation or enjoyment in their own persons, or in the persons of their descendants, of any lands in the said colony now actually occupied or enjoyed by such natives."

Denuded of its technicalities, this clause signifies that the Natives were not, by any of the fore-mentioned enactments, to be disturbed in the possession of such lands as they actually occupied or enjoyed; but there is here no limitation – as is asserted – of those large proprietary rights which they claimed, and which were secured to them by the Treaty of Waitangi, for it is clear that actual occupation or enjoyment were intended to be construed in accordance with the widest acceptation of which these terms were susceptible; and we shall presently prove, that even admitting the rights of the Aborigines only to lands actually occupied or enjoyed by them, such limitation in nowise militates against the ample provisions of the Treaty.

In these views we are further confirmed by the Ordinance of the New Zealand Legislative Assembly – then acting of its own independent authority – repealing the New South Wales Land Commission Bill, and authorizing the Governor of New Zealand, to appoint new Land Commissioners. The Ordinance in question passed on the 9th of June, 1841, following as shortly as possible upon the receipt of the Charter and the Instructions, and it was in most respects the same as the New South Wales Bill, the Preamble in each case setting forth the intent and purpose of the Bill, namely; to invalidate all titles to land not derived from or confirmed by Her Majesty. Accordingly, the first clause of the New South Wales Bill enacts:

"That all titles to land in New Zealand which are not, or may not hereafter be allowed by Her Majesty, are and shall be absolutely null and void."

This clause clearly refers only to lands which had been acquired by British subjects, and which were to be subject to the investigation of the Land Commission. In like manner the first clause of the New Zealand Ordinance, although said to imply some other intent and

view, 102 only elaborated the same principle. After reciting the preamble it continues thus:

"Be it therefore declared, enacted and ordained, that all unappropriated lands within our said colony of New Zealand, subject, however, to the rightful and necessary occupation and use thereof by the Aboriginal inhabitants of the said colony, are and remain crown or domain lands of Her Majesty, her heirs and successors, and that the sole and absolute right of pre-emption from the said Aboriginal inhabitants, rests in, and can only be exercised by her said Majesty, her heirs and successors, and that all titles to land &c., &c., are null and void."

It is asserted that the words "all unappropriated lands," &c., implied the assumption, on the part of the Crown, and in right of its prerogative, of a claim to such lands as were without any native claimant whatsoever. Admitting for a moment that this is a correct assumption, we do not perceive in it anything which would prejudice the Natives, or be in contravention with the terms of the Treaty, for the Treaty guaranteed to them the exclusive possession of all the lands, &c., which they collectively or individually possessed, but cannot

be construed to have also confirmed them in a right to lands that were never theirs, and consequently, over which they had never exercised any kind of jurisdiction.

But to admit this assumption we must first concede that there exist in New Zealand, lands which are unappropriated; and this concession would have to be made in the teeth of fact, for the evidence taken before the Parliamentary Committee, establishes beyond disputation that there is not – at least in the Northern Island – a single inch of the soil unclaimed, that is, unappropriated, by the Natives. The Wesleyan and the Church Missionary Societies have also adduced evidence which must be regarded as conclusive; for the long residence of their Missionaries in the country, and the peculiar opportunities they have enjoyed of acquiring information on this head, give great weight to their testimony. In 1844, for instance, the Committee of the latter body printed, by order of the House of Commons, an official statement to the effect that their Missionaries had not been able to ascertain a single case of unowned land; the whole being claimed by the various Chiefs and Tribes. The former Society also brings forward similar facts, for, in the

course of the extensive correspondence between it and its Missionaries, the latter have "never reported a single case of a tract of land being without a Native claimant. On the contrary, their communications all warrant the conclusion that the entire country is divided among the several Tribes – the boundaries of every property being accurately defined – and that the proprietorship is so vested in each Tribe, according to well-understood Native usage, that all the families and individuals of the Tribe have a beneficial interest therein. In this view, therefore, at the time when the Treaty of Waitangi was proposed for adoption, there was not any such public property, contra-distinguished from the property of individuals, as could be understood to be so connected with the sovereignty, that on the principles of public law, the one must naturally and necessarily be transferred with the other." 103

Even so recently as July 1847, this Society received a Letter from one of its Missionaries writing from Auckland, in which, referring to lands said to have no Native claimants, he says:

"No such lands have yet been discovered in this Island – – -I question much whether there is an acre on this Island that has no owner." 104

It will be argued that the evidence in question refers more particularly to the Northern Island, where the claim of the Crown may be admitted to be annulled by the facts mentioned; but that in the Middle Island and the Southern, it must be considered as applicable and valid. Now we have shown that the Treaty applies to the Middle Island as well as to the Northern; and this fact was admitted by the Government, when in 1844, under the superintendence of a functionary appointed by the Governor, the New Zealand Company purchased the Otakau district on the East coast, comprising 400,000 acres, paying for this block of land the sum of £2,400, being something under three-halfpence per. acre for the best bit of soil in the Island.

In March, 1847, the ill-fated Wairau district was also purchased, under the directions of the Governor, and has been already in part paid for; whence it is not to be disputed that the Treaty does apply to the Middle Island, and

ought for the reasons we have adduced elsewhere, to be made applicable to the Southern Island also.

But admitting, for the argument's sake, that there should really exist, in any of the Islands, lands lying entirely unappropriated by the Natives, the right thereto of the Crown is indisputable.

"On the other hand it appears to me equally clear, that all property, which is without an owner, and which may be considered as res nullius – and all bona vacantia, through the several Islands of New Zealand has vested in the Queen in right of her sovereignty, not because we are to assume (as has been suggested by some) that the inhabitants of Islands, so entirely separated from all intercourse with European States, were roused by the distinctions of allodial and feudal property, or that they could be supposed to hold land by such tenures as we derive from our Gothic ancestors, but because it is in accordance with the general law and practice of Nations, that all property without an owner should vest in the Sovereign power of the State, and such Sovereign power, in conformity with the stipulations of the treaty in question, is the Queen of England." 105

"But as to all unoccupied and waste lands, these are the demesne of the crown, and may be granted out – this right is a part of the prerogative royal, and the prerogative is an attribute of sovereignty; 'and the attributes of the sovereign, which are inherent in and constitute his political capacity, prevail in every part of the territories subject to the British Crown, by whatever peculiar or internal law they may be governed, and may, consequently, be exercised in the colonies, except as it may be abridged or restrained by grants or other concession to the inhabitants.

"Such properties so vested in the crown, as lands which are waste, are such as are not cultivated and which have no owner." 106

Having proved that, even if the clause in question should be construed to imply the advancement on the part of the Crown, of a claim to "all unappropriated lands" in New Zealand, such a construction would neither prejudice the Natives, nor be any infringement of the Treaty, we purpose now to bring forward our reasons for asserting that this is not the proper signification of the clause.

We aver it then as our opinion that the term

"all unappropriated lands" distinctly applied only to lands claimed by British subjects, the title to which yet awaited the confirmation of the Land-Commission; for all such title having been absolutely annulled by the Government proclamation, which the Bill was intended to carry out in detail, it followed necessarily that all lands claimed by British subjects, but the titles to which were not yet confirmed according to law, were to all intents and purposes unappropriated.

Again; the right of the Crown to unapprorpriated lands existed independently of the decision of a Land-Court, that right being a prerogative royal, and the asserting of it over such unappropriated lands as were presumed to exist in the Aboriginal districts of New Zealand, would therefore have been an act of supererogation, because the right of the Crown would necessarily have extended thereto without assertion. On the other hand it was requisite for the Crown to advance its right over lands that were claimed by British subjects, but the title to which remained yet in abeyance, for if this had not been done, and the Natives had ascertained – as they must – that the titles to the lands they had sold had been voided in respect of the indi-

viduals in favour of whom they had disposed of the same, and that to such lands no other claim had been asserted, they would most certainly have resumed possession of them, arguing that as Government had annulled the claims of the purchasers, without, at the same time, and in right of being chief, appropriating the lands to itself, they clearly had the best right to that which was for the time being without an owner, and which had, in the origin, been derived from themselves.

The case of the claim of Mr. Fairburn is aptly illustrative of this assertion. His claim having been similarly annulled, his lady appealed to the Natives, who even in spite of the Government proclamation, and of the advancement of the right of the Crown, asserted their determination to resume possession of the lands in dispute, arguing that they had sold them not to Government, but to the claimant, and that if the Government deprived the claimant of her lands, they themselves had the best right to them. 107 It is true that the claimant herself instigated the Natives to this course; but there were not, nor are there wanting even now,

instigators to similar opposition; hence, if in spite of the assumption of the Crown, the Natives would urge such arguments as these as a plea for resuming possession of lands which they had relinquished for inadequate compensation – or for what they regard as such, considering the present high price of land – how much greater were the probabilities that they would, upon this principle, have advanced more extensive claims, supposing that the Legislative Assembly had not, at the outset, asserted the right of the Crown to all unappropriated lands, thus constituting itself the nominal proprietor, until such time as the Land-Commission should have pronounced its final decision.

In discussing this extremely involved question, we must keep in view the object of the Land Ordinance Bill as stated in its preamble, which distinctly sets forth the expediency of not recognising titles to land held only in right of purchases made from the Natives; and as a means of bringing the matter to a determinate issue, declares all unappropriated lands to vest in the Crown, and by annulling all titles to lands not derived from or confirmed by Her Majesty, thus renders them unappropriated, in

order that there may be no misconception in the native mind respecting the individual in whom the right to such lands would in consequence vest.

We may be allowed to observe here, that the framing of this clause plainly exhibits the accurate knowledge of native character which the local authorities possessed, and was most creditable to the sagacity of Captain Hobson and of the parties who acted under his directions.

As an additional proof of the correctness of our statement of the question, we will call attention to that portion of the clause which enacts a reservation in favour of the natives; the absorption, by the Crown, of the unappropriated lands, being subject to their "rightful and necessary occupation and use." Now when we consider that the Land Commissioners could merely recommend grants to be made; that the maximum of these was not, under any circumstances, to exceed two thousand five hundred and sixty acres; 108 that the residue would necessarily revert to the Crown:

and lastly, that the claims were on a gigantic scale, it was only fair and just that the Government should contemplate awarding ample reserves to the Natives, in consideration of the small compensation which they had, in the generality of cases, received, and of the manifest evils and inconveniences that must ultimately have accrued to them, had the land-jobbers and land-sharks been unrestrictedly confirmed in their claims to the extensive territories so many of them had acquired either surreptitiously or for mere nominal considerations.

Let it also be borne in mind that the right of pre-emption was, by the same clause, again asserted to be vested exclusively in Her Majesty. But if, as it has been advanced, "unappropriated lands" signified here, such as belonged to nobody, then to have in respect of them asserted "the sole and absolute right of pre-emption from the Aboriginal inhabitants" would have been putting forth an absurdity; for one must admit that such a right could not be said to extend over lands they did not possess, and which were already vested in the Crown, any more than the latter could be assumed to pretend to a right of purchasing its own lands of itself.

It is, then, demonstrated that the clause in question contemplated allotting reserves of lands for the ultimate use of the Natives; that these reserves were intended to be set apart from the lands which remained to the Crown over the award made by the Land Commission to British claimants, in reference to the amount of any original claim to which they might have succeeded in establishing an unimpeachable title; and lastly, that it was over these native reserves of land the Crown re-asserted its right of preemption, in anticipation of any attempt which might be made to induce the Aborigines – under conditions possibly disadvantageous to themselves – to part with lands they had thus re-acquired.

In connection with the rights of the Crown, we have to bring forward yet another question which cannot be more concisely stated than by making an abstract of the correspondence in which it was mooted.

In a letter to Lord Stanley, dated 16th May, 1843, Captain Fitzroy, Governor Hobson's successor, requested instructions upon certain matters, to which, on the 26th of the following month, his Lordship replied as follows:

"1st. Your first inquiry is in the following terms: 'To whom should land now belong which has been validly purchased from New Zealand Aboriginals, but which exceeding, a certain specified quantity, cannot be held under existing laws by the original purchaser or his representative?'

"The case thus supposed is (if I rightly understand it) a case in which the contract with the natives shall be found by the Land Claims Commissioners to have been untainted by any such fraud or injustice as would render it invalid. It is assumed, that neither on the ground of inadequacy of price, nor on any other ground, could the former proprietors of the land require that the sale of it should be set aside. But it is at the same time supposed, that the land then acquired exceeded the limitation which defines the extent of land to be holden by any European under a title originally derived from the Aborigines. The question then is, who is the proprietor of the excess? To that question it must be answered, that by the terms of the supposition, the purchaser is not the proprietor; and that the hypothesis being that the claims of the Aboriginal sellers have been justly extinguished, they are no longer the proprietors. Hence the consequence seems immediately to follow, that the property in the excess is vested in the Sovereign, as representing and protecting the interests of society at large. In other words, such land would

become available for the purposes of sale and settlement." 109

Lord Stanley's solution of this difficulty is in accordance with the same line of policy which the Government appears to have observed up to this period, and appears to us to have been as sound as it certainly was consistent. Nevertheless it has been urged by some, 110 in their laudable advocacy of the New Zealanders' rights, that if the Legislature considered two thousand five hundred and sixty acres (four square miles) of land, being the maximum grant which the Commissioners could award, sufficient for any individual to possess in right of purchase from the natives, the residue of the claim originally asserted ought to have reverted to the Aborigines, and been considered as their property, subject only to the Crown's right of pre-emption. It is urged, that if, in consequence of restrictive laws, the land does not pass into the hands of the alleged purchaser, legally and equitably it remains the property of the Natives.

"It may be argued," writes Mr. Terry, "that the Natives consider they have disposed of their rights to such land for ever, and are satisfied with their bargain; but the land must be the property of either the buyer or the seller; it cannot belong to a third party. If a claim is altogether invalid, surely the land will remain the property of the Aborigines; so ought whatever portion is disallowed by the Commissioners to revert to them by the same rule of equity."

It certainly would at first appear that this argument is founded upon reason and justice, but upon a closer examination we perceive that, notwithstanding it has much to recommend it, it cannot be maintained upon these grounds. In judging of this peculiar difficulty, Mr. Terry and others assert that the land must be the property of either the buyer or the seller, for it cannot belong to a third party; but in arguing thus they lose sight of the fact, namely; that although with reference to the natives, the purchaser's bargain may have been equitable, and as such, his title to the whole of the land may be good, (always in reference to the natives only,) yet in respect of the Crown it is not only invalid, and was so at the outset, but illegal, as having been concluded without

the royal sanction; the purchaser can therefore be regarded merely in the light of a purchaser under the Crown, in which his ultimate title resides. Thus, in point of fact, and upon these grounds, the Crown might, by an arbitrary exercise of its prerogative, have confiscated all those lands which British subjects had purchased in New Zealand, and have afterwards proceeded itself to contest the title with the Natives; but in awarding to claimants grants of land, varying in extent to the maximum of two thousand five hundred and sixty acres; and in appropriating to itself, as trustee for the public, the excess of the quantity claimed, less so much, perhaps, as it might intend to reserve for the use of the Natives, the Crown must be allowed to have acted with due consideration towards all parties. It is true, if the Land Commission admit the validity of a large claim, that it may appear hard upon the purchaser not to be permitted to possess more than a limited quantity, but the claimant ought to bear in mind, that with reference to the Crown, his whole purchase was originally illegal, and although the illegal act might have been committed in ignorance, or under peculiar circumstances, he cannot expect to escape

some penalty for breaking the law: that penalty is the forfeiture of all the land he may have purchased, less a stipulated number of acres. So far then, as between British subjects and the Crown, the case is perfectly clear; there is no third party in question, for it is the Crown, not the subject, that must be regarded as the original buyer; and hence the soundness of Lord Stanley's rule.

With respect to the Aborigines, such an arrangement cannot prejudice them, provided always the claim be invalidated upon any other grounds than inadequate compensation or fraud. In the latter case, it is quite clear that the purchase being declared altogether invalid, would entitle the Aboriginal owners to compensation or to the reversion of the land, for the Crown can claim only that which would be admitted to have been fairly bought and paid for, and to which there would exist a clear title as against the Natives. On this head, then, Mr. Terry is right, but it does not therefore follow that the same rule should apply to cases of equitable contract: in the latter instance the claim is illegal and invalid only in respect of the Crown, therefore the excess of land remains to the Crown: in the former, it

is altogether null in respect of all parties, and therefore the land reverts to its original owners.

Lord Stanley himself appears to have taken a very broad view of this peculiar question, for, continuing his instructions to Captain Fitzroy, he says:

"But in reducing any such general principle to practice, not only the difficulties you yourself suggest, but others not now distinctly perceptible, will probably arise. Especially, it may happen that the natives may be found in possession of some such lands, or may be prompted, by feelings entitled to respect, earnestly to solicit the resumption of them. In any such contingency it would be your duty (I am well aware how much it would be your inclination) to deal with the original proprietors with the utmost possible tenderness, and even to humour their wishes, so far as it can be done, compatibly with the other and higher interests over which your office will require you to watch."

That the Government should have limited individuals to the possession of only two thousand five hundred and sixty acres of land as a maximum grant, seems to have given great offence to the claimants of large districts, to which their title was found unimpeachable.

We do not purpose to offer an opinion whether this amount as a maximum, was or not fair and equitable, but we do assert that the establishment of some such restriction was sound policy, and absolutely necessary to ensure the prosperity of the Colony, and the proper use and cultivation or enjoyment of the soil by those who had bought it; as also to put a stop to that vile system of land-jobbing and land-sharking of which the evil results will long be felt, more particularly by the Aborigines, its first victims.

We should here state that the wholesale claims of the New Zealand Association, were exempted from being awarded according to the same rules as regulated the claims of individuals, generally, and formed the subject of a distinct negotiation with the Home Government. We have not, however, at present to do with these, save to remark, that the grant was incomparably more extensive, and conditional upon validity of title; in other words, the Government originally admitted it to possess large claims, and made an award proportioned thereto, leaving the Land-Commission to determine upon the validity of the title advanced to the lands so awarded. Recently, the difficulties

which had arisen between the Government and the Company, have formed the subject of a special arrangement.

Referring the Reader back, then, to the category into which the Land-claims were resolved by the Treaty of Waitangi, but particularly to the claims of the Crown, these may be set down as resting upon its requirements,

Firstly: Of such lands as should revert to it in consequence of the non-conformity of claimants with the stipulated regulations of the Land-commission Acts.

Secondly: Of such lands, as by exercise of its right of pre-emption it should derive from fair and equal contracts with the Natives.

To these we must add,

Thirdly: Such lands as should remain unappropriated, after the decision of the Land-Commission, the same being the difference between the original claim and the ultimate award, less any number of acres intended to be set apart as the Natives' reserves.

Fourthly: Such lands as might be found absolutely without an owner, and which would consequently vest in the Crown by virtue of its prerogative.

Having given our opinion upon each of these claims, separately, we have a few observations to offer with reference to the conduct of the several Governors upon whom the burden of their adjustment chiefly devolved.

Towards the middle of the year 1842, Captain Hobson's illness – to which we have already alluded – terminated fatally; he was succeeded by the Colonial Secretary, Mr. Shortland, who continued to officiate as Acting-Governor until the end of 1843, when Captain Robert Fitzroy arrived at Auckland, he having been nominated to the vacant Governorship, in which office he remained until the 18th of November 1845, when, in consequence of his recal, he was succeeded by Captain Grey the actual Governor.

Up to this period (1845) the Governors we have mentioned, appear to have adhered very closely to the spirit of the Treaty of Waitangi. They seem to have understood perfectly, that the Legislature was bound by its provisions, and experience made them fully aware that any infraction of them would lead to a sanguinary issue. We refer, of course, to the massacres at the Wairau, &c., the particulars of which have been so prominently before the

public, there is no necessity to recur to them, save perhaps, to call attention to the fact of the jealousy of the Natives on the all-important question of their land-rights. It will be found that in the majority of cases, the hostility of the Natives was aroused by the illegal proceedings of the claimants, and their persistence in surveying lands the Aborigines had not sold, and the titles to which were yet under the consideration of the Land-Commission. The duties, too, of the Commission were most onerous, and the Report of Mr. Commissioner Spain 111 shows that they were also of the most delicate nature; for whilst, on the one hand, he had the government instructions to regulate the principles on which his decisions were to be based, these instructions were in antagonism with the pretensions of the claimants, especially those of the New Zealand Company, whose agents raised every possible obstacle to retard a settlement. The question of title was extremely intricate. Immense tracts of territory were claimed in right of purchase, which the Natives declared had never been sold; their pahs, (villages) cultiva-

tions and burial-grounds, were stated to have been alienated, when, at the same time, it was notorious that native custom did not sanction the sale of such parcels of land as these, they being tabooed or sacred, and as such regarded with the highest degree of superstitious veneration. The boundaries, too, of the districts claimed, were in many cases very ill-defined: others, described in terms wholly unintelligible to the Native sellers, to whom miles and degrees of latitude and longitude, which in some instances served as the basis of measurement, conveyed no signification. Permissions to reside or to cultivate were again construed into acts of alienation, and the presents made alleged to be the price agreed upon to ratify the bargains. In fine, to enumerate the various difficulties which beset the land-question would be to re-print the voluminous evidence which was laid before the Select Committees of the Houses of Parliament; it does, however, certainly appear that the claims of the New Zealand Company exhibited a marked difference when contrasted with those of private speculators, and gave rise to the sanguinary disasters of which various parts of the Colony have been the scene. Hear Mr. Commissioner Spain, in his Report to the Colonial Secretary of Auckland.

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

"I am further of opinion, that the natives did not consent to alienate their pahs, cultivations and burying-grounds. That the interpretation between the Aborigines and the agents of the Company in the alleged purchases was exceedingly imperfect, and tended to convey in but a very slight degree, any idea to the former of the extent of territory which the latter by those purchases pretended to have acquired

and that the explanation by the interpreters of the system of reserves was perfectly unintelligible to the Natives. A comparison of the native evidence given in the Company's cases with that given in most of the cases of private claimants which I have investigated, will show a marked difference. In the former, with few exceptions, it goes to deny, or only partially to admit the sale, while in the latter it tends generally to admit the sale and the receipt of the consideration, and usually to describe clearly the boundaries of the land sold.

"These observations must be considered as applying to the Company's claims in the Port Nicholson district, and between that place and including Wanganui, the evidence in those cases being closed; but I may add, that they are equally applicable to the Company's other cases, as far as the evidence has gone."

It must not, however, be supposed that only the agents of the New Zealand Company exhibited indifferent or invalid titles; or that only they were guilty of concluding loose, unintelligible, or one-sided bargains with the Natives; for the same evidence which brings the Company under censure, likewise establishes against other individuals the fact of equally insidious dealings. The claim of Mr. Wentworth is a notorious illustration of this fact. For the sum

of 200l. down, and a promise of a similar sum per annum, as long as they should live, he induced seven chiefs of the Middle Island who chanced to be at Sydney, to sell to him, conjointly with four other persons, twenty millions of acres in the Middle Island; and this subsequently to the Treaty of Waitangi, and to the proclamation declaring all such purchases invalid unless derived from the Crown. 112 Had this loose bargain been confirmed, two thirds of the Middle Island would have become the private property of a few individuals, and would have comprised more land than was actually available for cultivation, or than could ever have been rendered so.

Numerous instances of a similar character might be quoted in illustration of the unscrupulous greed of the land-speculators; and it may readily be inferred that such transactions must have materially embarrassed the Commission; especially when it came to be discovered that there were native litigants, also, and that very frequently land had been sold to which the title was already a bone of contention between the natives

themselves. So vague, in fact, were the terms of the bargains, so unintelligible the limits of the land alleged to have been purchased, and, on occasions, so uncertain the native title – that is, as deriving or not from the real owners, or from only a part of them – that one claimant, who purchased by mileage one hundred thousand acres on the spot, but but who did not any the more care to define the extent of a mile, hesitated not to declare to the Select Committee, that from the manner in which purchases were carried on, the whole of these transactions, purchase, sale, and title, were "a legal farce." 113 An instance of candour, this, deserving of the highest commendation!

There exists not a doubt but that in the person of its agents, the New Zealand Company, as well as individuals, sought to acquire land under almost any conditions; and although the former did certainly profess to, and in fact did, set aside – as native reserves – certain portions of their alleged purchases, a redeeming feature in this wholesale appropriation of a country – it is not less true that those reserves were frequently ill-selected, and of no use or but little to those whom they were intended to benefit. It is

likewise certain that the principle advocated by Dr. Arnold was acted upon throughout and that the Company persisted in claiming lands to which there existed indisputable native title; and this, simply on the assumption of the inability of the Aborigines to possess, because in these cases they did not cultivate. The Governors we have named, and their agents, the Land Commissioners, did not regard the question in precisely the same light. To them, the Treaty of Waitangi was a solemn engagement, whose provisions they understood only in one sense; the only sense they would bear; the only sense in which the Natives had comprehended them, and the Missionaries told them they could ever be construed to signify: in a word, they understood that the Treaty confirmed the Aborigines in the exclusive and full possession of all their lands and properties, and that no land was to be taken from them except it were fairly purchased. This was the ruling principle of the Governors and of their agents; but when, in the discharge of their duty, the latter declared that certain lands claimed had never been sold, and that compensation must be made to the Native proprietors, the New Zealand Company, so powerful at home, so

imperious in the Colony, finding its interests compromised, opposed the decision of the Commissioners, and, by means of virulent newspaper opposition, endeavoured to thwart the efforts of all. 114 Never, indeed, did the Maories meet with foes to their land-rights, so steady and so persevering as presented themselves in the agents of the New Zealand Company, whose systematic encroachments upon them, were productive of the most fatal results, both as regarded the influence of the British, the authority of the Governors, the peace of the Settlers, and the progress of the Colony. To have put them in possession of the lands they claimed, would have required a numerous army and a large naval force, for the Natives would have resisted to extermination so sweeping a usurpation as they were threatened with: thus, not justice only, but policy dictated a strict adherence to the terms of the Treaty.

It is not a little remarkable, that the most violent opposers of the Treaty in Parliament,

were individuals having a direct interest in this extensive land-jobbing Company, and that the home opposition seems to have formed part and parcel of the systematic opposition pursued by its agents in the Colony, to whose greed the Treaty proved a formidable stumbling-block, yet whose aim appears to have been to procure land in spite of it.

In proof of the indifference with which they regarded the Treaty, we will quote a passage from Colonel Wakefield's Letter to the Secretary of the Company, dated from Wellington, 11th Sept., 1841, in which he says; 115

"In an interview between his Excellency the legal functionaries and myself, Captain Hobson expressed himself favourable to my request, that he should guarantee a title to all past purchasers from the Company, as against white people; but positively refused to look upon the Native title as fairly extinguished, by reason of the advantages secured to the Aborigines, by their reserved land, and the introduction of civilization amongst them.

"This view of the subject, so inimical to the quiet progress of the Company's settlements, has been taken by Captain Hobson in consequence of his

Treaty of Waitangi, in which, under the embarrassing opposition of the Northern Chiefs, he engaged to purchase all the lands that should be required for the purpose of settlement."

Here we find the Treaty in antagonism with a desire of extinguishing native title by any means save by purchase; it is due to the memory of Captain Hobson, aspersed as he has been, to adduce facts such as these in proof of the difficulties of his position, and of the systematic combinations he had to contend against. Alluding to these nefarious transactions, he thus writes to the Secretary of State for the Colonies:

"Had I yielded to them, the moral debasement would have sunk me to the grave." 116

If, however, we think it but just to vindicate the much maligned Captain Hobson's intentions – honourable as they were – against the wholesale abuse with which they have from time to time been honoured, we do not therefore seek to exonerate him from the errors of his government; his concessions, for instance,

to the New Zealand Company, against white claimants, originated subsequent difficulties with the Natives, which further complicated the Land-question, and rendered its satisfactory adjustment almost impracticable; yet, in consideration of the peculiar difficulties of his position, of the determined opposition he had to encounter; in consideration of his state of health, and of the harassing duties he had to perform, greater allowance ought to have been made, and the chief weight of the censure that has visited him, should have rather fallen upon the really culpable parties.

Mr. Shortland's measures, undertaken with the best intentions, and in conformity with the Treaty of Waitangi, did not tend to ameliorate the condition of things, which, at the period of Captain Fitzroy's arrival were at the worst. We need not, however take upon ourselves the defence of Captain Fitzroy, who has ably pleaded his own cause, 117 and exhibited in detail, the gigantic difficulties he had to encounter, not the least of which arose from want of money, troops and military stores.

We may here observe, that the "war of the

flag-staff" under the leader-ship of the bellique northern chief John Heke, originated under circumstances wholly independent of Governor Fitzroy's control, inasmuch as the incentive to rebellion existed from the very first moment of the assumption of British sovereignty. Designing persons, disaffected towards Government – chiefly on account of the proclamation declaring titles to land invalid, unless such were confirmed by the Crown – and presuming upon the ambiguous phraseology of the Land Claims' Ordinance regarding the demesne of the Crown, instilled into the minds of the Natives a belief that it was intended to violate the Treaty of Waitangi; that at the first favourable opportunity, the country would be seized, and the people made slaves. Unfortunately, too, the announcement of the intention of Government to take for the Queen the surplus of land awarded by the Commissioners, without, at the same time, distinctly setting apart large reserves for the Natives, or according them additional compensation, either of which acts would have been sound policy, though not in strict accordance perhaps with instructions: this, and the prohibition against the cutting of Kauri timber – a measure

deemed necessary to preserve this valuable wood being totally eradicated from the native forests – tended to inflame the ire of the Aborigines, in spite of the strenuous efforts made by both sects of Missionaries to disabuse them, and to impress upon them a conviction of the honest intentions of the Government. To some extent their laudable exertions were crowned with complete success, and several of the most powerful chiefs openly declared their belief in the justice of the Government. But the mischief brooded still, and at length, John Heke appeared in arms.

It is curious to trace the reasoning of this so-called rebel.

His belief was, that the fact of the British flag being hoisted upon any territory, was a symbol of the slavery of the natives; and Captain Fitzroy tells us that Heke was at great pains to instil this belief into his followers, and that, as a consequence, their land would be taken from them. Heke himself, writing to Captain Fitzroy, under date of the 21st May 1845, says:

"We are taunted with this language by the white people, by the white people of Hokianga, of Wangaroa, of Kororareka, of Te Wahapu, of Otnihu;

they made the statement, 'Your land will be taken by the Governor, and after that you will be killed. Look at Port Jackson, at China, and at all the islands; after that manner will this island be treated; the flag takes possession of the land.' The English first, after that the French, and the Americans (made this statement) then I assented to these statements. They did this for four years. On the fifth year we assented to those often repeated statements of the white people made to us. Then first we touched the flag-staff itself, it was chopped that it might fall. After that it was put up again. We then said, 'it is all true for they urge the point,' and we said we would die upon our land." 118

Here is evidence that this casuistry was not of native origin, and that it took some time to engender suspicion amongst the followers of Heke, who, in a second letter to the Governor, dated July 15th 1845, gives the following extenuation of his conduct. It should be borne in mind, however, that a custom-house had been in the interim established in one of the heretofore free ports, and in consequence, one source of Heke's revenue was cut off, without his receiving any adequate

compensation, thus giving him additional cause of dissatisfaction. It was the flag-staff raised above it to which he alludes.

"Mr. Governor, this is my good message to you, let my faults be examined by you. Was the commencement made by you or by me? I think it was by you, by the white man. I was in ignorance: the white people said to me, 'John Heke, your land is taken by the Governor.' I replied, 'by what means is it taken?' The white people answered, 'by the flag-staff which stands at Maiki.' I said, 'what is to be done?' They replied, 'cut down the flag-staff.' I touched the flag-staff, it was chopped down, the tree fell. I said, 'what meaning is there in the flag-staff?' The white people told me, 'the power of the Queen is the flag, there are three nations in it.' I said, 'God made this land for us, and for all our children.'"

This war against the flag-staff was the most momentous event of Captain Fitzroy's vice-gerency, and he has furnished incontrovertible evidence that he possessed not sufficient force to put it down, though, he succeeded in checking its progress. It was necessary to refer to it, in order to show how all-important is the question of land-tenure, and how complicated was the position of the Governor. We have already discussed, at some length,

the Land Claims' Ordinance, but cannot here refrain from asserting, that the faults of the various Governors – faults of detail, not of principle – must lie at the door of the Home Legislature. The instructions respecting the appropriation of the surplus of land awarded by the Commissioners, were not sufficiently explicit, and without offering any opinion whether the limitation of two thousand five hundred and sixty acres as the maximum grant, was or not the most equitable award that could have been made, we do not hesitate to say, that Government ought distinctly to have announced how much, if any, of the surplus it intended to set apart as native reserves, or what amount in money, as a compensation, it purposed to award as a fair equivalent. This much was due to the Natives, as a guarantee of the fair intentions of the Crown, and would have placed these above suspicion; as it was, the New Zealanders, unable to appreciate the subtleties of legal distinctions, or the arbitrary privileges of the prerogative royal, based as it really is upon a mere "legal fiction," naturally regarded with a jealous eye the expropriation of those to whom they had sold land, in favour of a new authority which had never purchased;

and, at the instigation of the disaffected, asserted new claims to the surplusage of the very districts they had surrendered all title to. It was in order to forestall these difficulties that we believe it would have been sound policy to accord compensation for the surplus lands absorbed by the Government; this should have been done at once, and under circumstances such as to leave no doubt on the minds of the Natives, of its just intentions and scrupulous regard of their interests.

With reference to the land-claims of the Missionaries, they are confined to the members of the Church Mission, those of the Wesleyan – with one exception – never having effected purchases, being prohibited therefrom by the regulations of the Society. Much censure, very undeserved in our opinion, has been cast upon the former, in consequence of their acquisition of land, but it is established that at least they paid for what they contracted for, and at a tolerably equivalent rate. For instance, their chief purchases consisted of land partially exhausted by native culture, and in the opinion of the natives themselves, "worn out;" now the Parliamentary Evidence proves that for this, they paid at the rate of 3s. 4d.

per acre. The Government purchases, during the administration of Willoughby Shortland Esq., were effected at the average rate of 3d. per acre, and his instructions to his agents were explicit not to exceed that price. The New Zealand Company land-jobbed upon a yet more meagre scale in regard to price, for it appears that the whole quantity originally claimed by it, namely, about 20,000,000 of acres, was bought at about one half-penny per acre! 119 Thus the balance of price is very much in favour of the Government and of the Missionaries.

But after all, the whole extent of claim made on behalf of the Church Mission families – save two exceptional cases resting on peculiar grounds – originally amounted to only fifty-three thousand six hundred and one acres; the children of these families (twelve in number) are one hundred and twenty, being an average of four hundred and forty-six acres per each child, which the Land Commissioners have reduced to two hundred and forty-three, having awarded twenty-nine thousand two hundred and nine acres in all. Let it now be taken

into consideration that the Missionaries bought the land when the prospect of colonization was, to say the least of it, very remote: that they could make no other provision for their families in that savage land, and that this provision was a poor set-off against their deprivation of the advantages of civilized society. Upon them devolved the dangers and the duties incidental to a new mission; duties which were performed at great personal sacrifice, and required a large amount of fortitude to fulfil, in the face of the discouragements and the difficulties that beset them. It does, then, appear too harsh to censure these worthy men as land jobbers, and unjust to decide their claims by the ordinary rule; for, even admitting that they had acquired a title to their full claim, namely, at the rate of four hundred and forty-six acres per each child, their claim, founded upon fair purchase, would fall far short of the allowance made by Government to the Chaplains of the Colony of New South Wales, who receive as a free gift, for each of their children, at the average rate of one thousand six hundred acres, and this in a rising colony. We submit, then, that the New Zealand Church Missionaries are not open to cen-

sure, and even deserve some further consideration at the hands of the Government which, in proof of its own disinterestedness, has absorbed the balance of twenty-four thousand three hundred and ninety two acres. 120

It would occupy far too much of our space and far exceed the limits of this book, were we to enter here upon the entire question of the New Zealand Company's claims to land, from the first moment of its application to Government to sanction its proceedings, up to the final arrangement between these two in 1847; nevertheless, a brief summary must be introduced here, previously to our dismissal of this portion of our subject.

At the outset, then, the Company laid claim to twenty millions of acres, situated in the Northern and the Middle Islands, which claim it alleged to be valid, on the fact of the same having been legitimately acquired of a nation which Parliament had recognized as independent; the Government proclamation, however, having annulled all titles to land in

New Zealand not derived from or confirmed by a grant from the Crown, the title of the New Zealand Company was necessarily invalidated with the rest; but, as it was also announced that the Crown would not dispossess those who had acquired land by equitable purchase, provided the extent thereof were not judged detrimental to the future prospects of the Colony, the Company's claim necessarily fell under the jurisdiction of the Land-Commission appointed to determine the validity of alleged purchases. There is no doubt this proclamation has been regarded as an arbitrary act on the part of the Colonial Authorities, and, in the absence of any enunciation of the principles upon which we conceive it to have been justifiable, it is not extraordinary that it should have engendered great dissatisfaction. We are even of opinion that the Legislature is censurable for having – as we have shown it to have done 121 – neglected this very necessary preliminary, which negligence, so culpable and injudicious, would appear to argue a total absence of system in the Colonial Department, if not an absolute uncertainty of principle. Large

interests were seriously compromised by the proclamation in question, and the greatest confusion ensued; for, as the Crown had renounced all pretension of assuming authority over New Zealand, save with the consent of the Aborigines, and consequently, as it possessed not, in virtue of any prerogative, the shadow of a claim to appropriated land there, possessors or claimants of land were naturally puzzled to comprehend upon what principle the Government could invalidate titles to land, and hold out conditional promises of grants, before it had acquired the right of granting.

As having, possibly, the largest stake adventured; as cognizant of its very heavy responsibilities; as possessing too, by means of its organization, and by its association with individuals of rank, and of power, immediate and available parliamentary influence, the New Zealand Company – though less deserving of consideration than private claimants, because it had acted in defiance of the Government – was loudest in its complaints, and succeeded in calling the attention of the Colonial Office to the very peculiar position in which it (the Company) found itself placed, and in contesting the principle that threatened to prove so fatal to its interests.

Entertaining the very loosest and the very unsoundest opinions with respect to the nature of Aboriginal land-tenure, the Company adopted as a fixed principle, that because native tribes did not hold ideas of property in land according to our notions, therefore they could not have any right to more than they actually cultivated; that although they might, from time immemorial, have been accustomed to consider the whole of the soil of their country, as theirs in common, and even have recognized certain individual rights therein, yet all such lands as were unoccupied, were of necessity to be held as unappropriated, and to these the Crown might justly assert a title in virtue of its prerogative: lastly, that this principle was the foundation of the rights of the Crown to the waste lands of its colonies, and thereupon, the Crown had refused to recognize the validity of purchases effected from the Natives of New Zealand, as it would have been inconsistency to treat them as having a power of transferring rights which they did not possess, nor even understand.

From this monstrous doctrine we have already declared our dissent, and furnished our reasons for refusing our sanction to principles so untenable and unjust. We have then merely

to record this fact, ere we pass on to the continuous argument of the Company.

Its next step was to impeach the consistency of the Marquis of Normanby, who is stated so far to have regarded the New Zealanders as a civilized people, living under regular laws, as to recognize their property in the soil, to treat with them for the sovereignty of their country, and to respect the rights of native proprietors as guaranteed by the cession; then, suddenly viewing them as savages in the eye of the law, to have declared all purchases from them invalid, and asserted the rights of the Crown over all lands purchased from the natives. 122

"If," asks the Company, through its mouth-organ Mr. Somes, "the New Zealanders had no notion of proprietary rights in land, how could such rights be recognized by the Crown? If they had, how could it be maintained that they had always been incapable of alienating such rights? How could the Crown confiscate that very species of property in the hands of its natural-born subjects, which it respects in those of its newly-acquired subjects? With what show of common justice can it confiscate lands already acquired by one, under a title which it declares good

for another? We, therefore, always looked upon Lord Normanby's letter as based on a very anomalous, contradictory theory, reconcilable neither with sound reason nor with the acknowledged principles of our law. We knew that never had there been a case in which the absence of any regular notions of property in land was so notoriously matter-of-fact as in New Zealand. Nobody has ever pretended that, according to native notions, individual rights to land have any existence. We did not believe that even the Royal power of making treaties could establish, in the eye of our courts, such a fiction as a native law of real property in New Zealand." &c.

Now before we touch upon the subject of the Marquis of Normanby's letter, here referred to, let us pause to consider upon what grounds the New Zealand Company could presume to maintain the validity of its original title to the lands it alleged it had acquired in New Zealand? If the absence of regular notions of property in land there, was to its agents so notoriously matter-of-fact; if individual rights to land there never had existence; if a native law of real property there was a fiction – whence was derived the Company's original title to the formidable number of 20,000,000 acres which it asserted in right of equitable acquis-

tion? A large portion of the land thus acquired is asserted to have been "waste;" but if the Crown was to advance claims to all waste lands, on the sweeping principle that the natives had no proprietary right therein, how could the Company assume that its own acquisition of such lands was valid? It is manifest, that as long as the Natives consented to bargain with the Company's agents, the native title to the whole soil was considered indisputable, and the Company continued to contract, no matter how, believing that it was not stepping beyond the limits of the law to trade in land with a nation whose independence had been formally recognized. As soon, however, as the Legislature declared such trading to be illegal, and annulled all the land-bargains, the Company suddenly discovered that Native tribes did not possess the same notions of property in land as ourselves, and therefore had no right to any more land than they cultivated; and that, by some latent principle intimately associated with the very problematical "divine right of Kings," the Crown laid a positive and inalienable claim to all the incult lands in New Zealand, and forthwith paid obsequious homage to the royal prerogative, by relinquishing, in

favour of the Crown, the twenty millions of acres to which there might have existed, on its part, a difficulty in proving an unimpeachable title, and consenting to receive four acres for every Pound Sterling which it had expended in its first illegal and abortive attempts at colonization: in round numbers, five hundred and forty thousand acres as an immediate acquisition, and a conditional ultimate award of from four to five hundred thousand more.

The New Zealand Company entered into this arrangement under the strange belief that the validity of its original title to the twenty million acres would not be investigated, although expecting, with characteristic modesty, forthwith to be put into possession of the first award (Mr. Pennington's) of five hundred and forty thousand acres, to be selected by its agents, within the larger limits, and considerable portions of which it had already sold at home at a very respectable profit. It never conceived that the Treaty of Waitangi could be "more than a praiseworthy device for amusing and pacifying savages for the moment;" or that the honourable gentlemen at the head of Her Majesty's Government would consider Her Majesty bound to observe its stipulations. But

so it was, and a mighty change came over the spirit of the dream, in the mists of which the broad acres floated temptingly within reach. So far from admitting that the "naked savages" of New Zealand had no proprietary rights, the Government very wisely concluded – apart the formal recognition of their independence as a nation – that as the Company professed to have purchased lands of them, those rights were substantive and tangible; and from the evidence which had recently been tendered before the Parliamentary Committees, it furthermore acquired the very certain knowledge that although the New Zealanders did not possess notions of rights of property in land, exactly such as we hold, still they held others equally definite, one of the most awkward of which was, that they would not part with their lands without receiving adequate compensation; a point in which they marvellously resemble ordinary civilized folks. Nor was this all; for local enquiry established the fact, that in some districts where the Company's agents claimed lands, and insisted upon being put into possession thereof, the Natives denied the alleged purchases, and stoutly refused to vacate the soil without payment, which was accordingly

demanded of the Company, as a very necessary preliminary to acquiescing in its request. Then it was that the Company's "very serious doubts," respecting the validity of the Treaty of Waitangi were extended to principles which seemed to regulate the Colonial Legislature, and their soundness began to be questioned with an acumen that marvellously savoured of special pleading. The one fact that it could not comprehend, was that Government would not violate a solemn treaty for the express purpose of putting it into possession of lands to which it could define no title, and its sole claim to which rested upon the consideration of Her Majesty's Ministers in awarding a conditional grant of land, proportioned to the amount of money it had lavished in its unwise attempt to colonize New Zealand without the sanction of the Crown.

The whole point at issue between the Government and the Company may be summed up in very few words, for the solution of the difficulty rested upon the simple fact, namely; whether or not the Company had fairly extinguished the native title to the twenty million acres it claimed in right of purchase? In announcing the validity of all titles to land not

derived from or confirmed by a grant from Her Majesty, the Legislature distinctly declared it not to be its intention to dispossess owners of land acquired by equitable purchase, wherefore, if the Company had entertained no misgivings on this head, it might surely have awaited the decision of the Land Commissioners, and directed its energies to procuring an early recognition of its title to all or to a part of those districts to which so many unfortunate emigrants had been decoyed, in expectation of being at once put into possession of lands for which they had paid with their hard earnings. Feeling, however, how deeply its undue precipitancy in transporting emigrants had compromised its position, and well aware that its title to twenty millions of acres would not bear the Government test – for it must be remembered that, according to its own shewing, the land-bargains had been struck in the teeth of a notorious matter-of-fact, namely; that "the New Zealanders had no regular notions of property;" 123 knowing, too, that the unfortunate Wellington victims were clamouring for the fulfilment of the promises which had been held out to them

before they quitted their natives shores; cognizant of all these facts, and panic-stricken at the bare contemplation of the consequences, the Company anxiously sought immediate means of withdrawing from its dilemma by direct appeal to the Colonial Authorities; a resource not open to individual claimants, over whom it thus gained an advantage.

The object of the application made by the Governor of the Company, Joseph Somes Esquire, was to ascertain in what light Government intended to regard the rights which had been acquired by the Company, in respect of its purchases of lands in New Zealand? In reply to this question, Mr. Vernon Smith, writing in the name of Lord John Russell, intimated: that the New Zealand Company would have to forego and disclaim all title or pretence of title, to any lands purchased or acquired by it in New Zealand, other than the lands which it might thereafter purchase or acquire from the Crown, or from persons deriving their title from the Crown: that Her Majesty's Government disclaimed all liability for making good any of the Company's sales or contracts, it being nevertheless understood that the Company should, from the lands it acquired, or that

might be to it granted from the Crown, fulfil and carry into effect all its contracts: that in consideration of the capital the Company had expended in carrying out its project of colonizing New Zealand, there should be made a fair estimate of this expenditure, and after it had been properly verified, the Company should receive a Crown grant, under the public seal of the Colony, of as many acres of land as should be equal to four times the number of Pounds Sterling which it might have expended for the purposes mentioned: that the lands so to be assigned to the Company should be taken, by it, in that part of the Colony of New Zealand where its settlement was formed, and to which it had laid claim in virtue of contracts made by it with the natives or others, antecedently to the Treaty of Waitangi: that, with regard to all lands in the Colony acquired under any other title than that of a grant from the Crown, the titles of the claimants should be subjected to the investigation of a Commission instituted for that purpose, the basis of that enquiry being an assertion on behalf of the Crown, of a title to all lands situate in New Zealand, which had theretofore been granted by the Chiefs of those Islands according to the customs of the country, and in

return for some adequate consideration; to all these conditions the New Zealand Company thankfully acceded 124 and procured a Charter for its incorporation, it having, up to that period, acted as a private Association.

But the decisions of the Land Commission roused the ire of the Company's agents, for the Commissioners soon discovered that adequate compensation had not been given to the Natives for certain lands claimed by the Company, and moreover, that some of the land so claimed had never been sold by them, so that unless the Company consented to pay for the land it coveted, possession thereof would not be accorded. Again, it was likewise ascertained, not only that the Natives had never sold certain districts claimed, but – more awkward still – that they never had intended to sell them, and did not now purpose to do so. Soon, however, in consequence of the persistence of the Company's agents in setting the Land Commission and the Natives at defiance, sanguinary collisions with the latter ensued, and the safety of the whole Colony was imperiled; these collisions having moreover proved that the

Natives were not to be wronged with impunity, it became a matter of necessity, not choice, that the Company should submit; and this it did with the very worst grace, forthwith attacking the Colonial authorities, and endeavouring to cast upon them the entire responsibility of its own imprudence and injustice.

Wilfully, we must believe, did the Company persist in misconstruing the basis of its original agreement with Lord John Russell, and in endeavouring to complicate the question by arguments upon abstract rights that were founded upon the loosest doctrines and principles. It would readily have comprehended any act of the Crown's which should have forcibly dispossessed the Native New Zealanders of their lands, guaranteed to them by the Treaty of Waitangi, but remained obstinately blind to the conditions of its own agreement with the Crown, the fulfilment of which, it seemed to think, could be effected only by a violation of that Treaty.

We have already quoted a few passages from the correspondence which took place between Joseph Somes, Esquire, on the part of the Company, and Lord Stanley, on that of the Government. To it we must now again recur,

for the purpose of setting the question in a clearer light.

The New Zealand Company assumed, then, – although upon what grounds it does not appear – that its original title was, under Lord John Russell's agreement, treated as a nullity, and a new title acquired by it, from the Crown, on the sole consideration of past expenditure "for the useful object of Colonization:" in other words, that its new title from the Crown was not dependent upon the validity of the Company's original purchases from the Natives, but was obviously derogatory of such original title, thus acquired, and was founded upon the very fact of its absolute invalidity.

Now this assumption was contrary to fact, and was either a wilful misrepresentation, or proof of an unpardonable lack of judgment. Lord John Russell did not assert the nullity of the Company's original title, on the plea which the Company would fain have had his Lordship advocate, namely; that the natives having no regular notions of property in land, could not therefore be held to have transferred proprietary rights which they never possessed, and therefore the Government would refuse to recognize the validity of purchases effected

from them: on the contrary, Lord John Russell distinctly declared, that the lands to be assigned to the Company should be taken by it in that portion of the Colony where its settlement was formed, "and to which the Company laid claim in virtue of contracts made by it with the Natives or others, antecedent to the Treaty of Waitangi;" thus, at the outset, his Lordship assumed the Company's original title to be unimpeachable. Secondly, his Lordship as distinctly declared, that with regard to all lands acquired under any other title than that of a Crown grant, "the titles of the claimants should be subjected to the investigation of a special Commission;" wherefore, the Company had no right to expect immunity on this head, for it was clear that its title to the lands it claimed would depend upon the decision of the Land Commission; and, therefore, it was not to be acquired from the Crown on the sole consideration of past expenditure: such expenditure was merely assumed to give it a right to be put in possession of certain of those lands to which it alleged the native title had been extinguished by fair purchase, but no construction whatsoever of Lord John Russell's words could warrant a

supposition that if its agents failed to prove the fact of equitable purchase, the Government was, nevertheless, bound to award it a title to those very lands it had never bought, and which the Natives either had never sold, or would not sell. The grant from the Crown depended upon the validity of the Company's original purchase from the Natives; if those purchases proved, upon close investigation, to be invalid, the penalty naturally would fall upon the Company, by whose authority such purchase had been sanctioned. It was expecting too much of Government, and of the Public at large, that they should pay for the errors of the Company.

The question next arises as to the general principle upon which the Government proceeded to invalidate all titles to land in New Zealand, save such as should be confirmed by the Crown; another point which appears to have singularly perplexed the Company; and to have, in a most inexplicable manner, set at nought that shrewdness which seemed never at fault, except when its own interests were out of the question. And yet upon this very point Lord John Russell was remarkably explicit, for, speaking of the Land Commission, upon

which devolved the responsibility of determining the validity of title asserted on the plea of equitable purchase, and referring to the principle of its constitution, his Lordship says it would rest upon "an assertion, on behalf of the Crown, of a title to all lands in New Zealand granted by the Chiefs of the Islands, according to the custom of the Country, and in return for some adequate consideration."

But the Company still persisted in not comprehending, and plunged at once into an abyss of argument and counter-argument which only proved its perfect appreciation of the real position of things, and its extraordinary infatuation in not yielding to the evidence of facts. Thus it persevered in a belief that the Legislature had stultified itself in declaring the title of the Crown to the lands which it purposed to grant out, to be necessarily dependent upon the fact of the native title having been previously extinguished by the claimants to whom grants were to be made. But what other title could the Crown have had? Lord Normanby's instructions to Captain Hobson, specially indicated in what manner the latter was to acquire waste lands: "It will be your duty to obtain, by fair and equal contracts with the

Natives, the cession to the Crown, of such waste lands as may be progressively required for the occupation of settlers resorting to New Zealand." Now Mr. Somes very pertinently observes, that the natural inference from the above passage, is, that "if the Crown founded its title on a cession from the natives, it would procure the cession before it engaged to make a grant; and that if it engaged to grant particular lands, it must have already procured the cession of them." But did it never occur to Mr. Somes that, with regard to lands claimed by British subjects, the Crown did not pretend that its title was founded on cession? There was then no question of waste lands, but only of lands which had been purchased by British subjects, and to which the Crown invalidated the title, by reason that those purchases had been effected without its consent; hence the "assertion on the part of the Crown, of a title to all lands in New Zealand granted by the Chiefs of the Islands, according to the custom of the country, and in return for some adequate compensation." The question at issue was not whether the Natives had a right to sell lands, but that British subjects had not the right to buy them, without the consent of the

Legislature, those lands being for the express purpose of establishing Colonies. The Crown assumed that those purchases were valid in so far as the extinguishment of the native title – the onus of ultimate proof lying with the claimants – but the very act of purchase without the consent of the Crown, constituted the parties who bought, purchasers only under the Crown; and, consequently, it did but assume its right – founded, it is true, upon what Blackstone calls a legal fiction – when it nominally confiscated the lands to which the native title was assumed to have been fairly extinguished: upon no other principle could it have absorbed the surplus of the award of the Land Commission.

We cannot, however, close our eyes to the fact of the negligence of Government in not distinctly enunciating this principle at the outset; for, although the New Zealand Company, possessing as its does, so great an array of legal talent, could not be supposed to have been in ignorance of the principle in question – especially after its admission that the duty of perceiving it did not devolve upon a purchaser – it was requiring too much of individuals who had not a phalanx of lawyers at

their elbow, to enter into the subtleties of prerogative and constitutional right. We have already asserted it to be our humble impression, that Government ought to have given Captain Hobson explicit directions for proclaiming Her Majesty's Sovereignty over all such parts of New Zealand as were asserted to have been acquired by purchase by British subjects, declaring the principles on which this assumption was founded, and left him to have afterwards acquired, by cession, the right of sovereignty over the remainder.

We are perfectly aware of all the difficulties which the New Zealand Company, as well as Captain Hobson himself, pointed out as likely to arise in the attempt to adjust the Land-question; still, as in cases of contested claims, the various sums demanded bore no proportion, comparatively speaking, to the real value of the land, and that, moreover, facilities for payment might have been procured, as in the recent instances of the Wairau, Porirua, and Wanganui districts, &c., the Company would have better consulted its interests, by making a virtue of necessity, and disbursing the just price, than by provoking disgraceful squabbles with the local authorities,

with the Home Legislature, and with the Natives, besides engendering disaffection amongst the Settlers it had conveyed to Wellington, who are even at the present moment vainly clamouring for redress. 125

The systematic hostility the Company has manifested to the rights of the Natives is thus easily explained, and its reasons for vilifying them in Parliament become apparent. 126 If it had succeeded in inducing the Government, at the outset, to assert a claim to all uncultivated lands in New Zealand, and that thereupon the Governors had proceeded unjustly to dispossess the Natives, we should not have had to suffer the infliction of a voluminous correspondence to attempt to prove what never could be proved, namely, that "the Aboriginal inhabitants of any country have no right to more land than they beneficially use and enjoy;" for Government, if it had succeeded in ousting such Chiefs as Rangiaiata, Rauparaha, Neni, Heke, and others, would then have had lands to

grant to the Company's agents, and the Company would not have had to pay the Natives for obtaining possession. As it was, however, the Crown had no lands save those which it might acquire through its subjects, whom it could not, consequently, confirm in possession, unless they first proved their original title to be valid; for Government could hardly be expected to purchase waste lands of the Natives, expressly for the convenience of parties who had failed to establish a clear title to the lands they claimed.

In appropriating to itself the surplus of the award of the Land Commission, to the detriment of the claimants who had proved a valid title to the whole amount of acres claimed, we can scarcely consider that, bearing in mind the extremely low price at which land purchases were effected, the Crown inflicted any real injury upon its subjects resident in New Zealand, who were awarded in the proportion of four acres for every Pound Sterling they had expended in colonizing. As trustee for the public, it assumed possession of the surplus lands for the public benefit, and by re-disposing of them, or by otherwise making them available for purposes of general utility to the

Colony, the land helds by the Settlers under the award of the Commission, were enhanced in value, whilst the presence of British authority imparted a feeling of security, and offered a guarantee for property that more than compensated for the confiscation of the lands in excess over the award, which, without such guarantee under the British Crown, would have long remained "a pernicious waste." As regarded the Crown, the illegality also of the original purchases must likewise not be overlooked, whilst the policy of checking land-jobbing, not less than that of limiting possession to a certain number of acres, will be readily appreciated if we consider what the consequences would be of allowing individuals to have acquired, and retained possession of districts, the extent of which placed it wholly out of their power to turn them to the smallest account, save as a fund for a harmful speculation.

Recurring to another feature in the case of the New Zealand Company, Mr. Somes asserts that "half at least of the twenty-millions of acres affected by the Company's claim lie in the Middle Island; and the Middle and Southern Islands, it is obvious, cannot be af-

fected by the Treaty of Waitangi, inasmuch as Her Majesty's title to them was asserted on the ground of discovery, without pretence of treaty or cession." 127

Must we qualify this assertion as a wilful mis-statement? The proclamations of Major Bunbury, and the official declaration of Capt. Hobson, both of which we have already exhibited, 128 establish beyond doubt, that the Middle Island was ceded as well as the Northern. We stated in a former Chapter that we regarded Captain Hobson's anticipatory Proclamation of the 21st of May, 1840, either as ambiguously implying that the Middle and the Southern Islands had been secured under the same conditions as the Northern, or as leaving altogether out of the question the terms under which they had been acquired: thus we find him declaring that he had it in command "to assert the Sovereign rights of Her Majesty over the Southern Islands of New Zealand, commonly called 'the Middle Island,' and 'Stewart's Island,' and also, the Island

commonly called 'the Northern Island,' the same having been ceded in Sovereignty to Her Majesty."

Now to which of the Islands do the words "the same" apply? According to the construction, they comprise all the Islands, which, therefore, were declared to have been ceded. If not, then under what conditions were the Middle and the Northern Islands acquired? there is not in this proclamation any question of a right by discovery; setting aside the fact of the Crown's having formally renounced all such right. But Major Bunbury's declaration is conclusive of the fact, namely, that the Middle Island was acquired by cession.

It is really pitiable to find such wilful mis-statements as these unblushingly advanced for no other purpose than to induce Government to consent to despoil the Natives of the Middle Island of their proprietary rights, as guaranteed to them by that Treaty which the Company hold in such irreverence. Yet we should have thought the severe lesson it received at the Wairau, would have not been thrown away; besides which, its own purchase of the Otakau district, and the payment it has been compelled to make for the Wairau,

the Porirua, the Wanganui, and the Taranaki districts, ought to leave it in no doubt that the operation of the Treaty is not confined to the Northern Island, but extends equally to the Middle one, where the most sanguinary collisions have taken place in the attempts made to deprive the Aborigines of their natural rights.

The Company admits that the proceedings of the Court of Claims originated the difficulties between itself (the Company) and the Government. 129 But if the original title of the Company was unimpeachable, why did it constantly oppose submitting that title to investigation?

In a preceding passage it asserts that "in Lord John Russell's declaration of general policy, the necessity of proving title before a Commissioner of Claims is expressly stated; but with respect to the Company – with which he entered into a special agreement – there is not a word about proving title before a Commissioner of Claims; therefore it appears that Government laid down one rule under its special agreement with the Company, and another for other people in general."

This was notoriously not the case. Lord John Russell expressly and distinctly laid down the one general rule, for all claimants; the only exception made in favour of the Company – and this possibly on account of the perplexities of the unfortunate emigrants at Wellington – was to grant it permission to prove in London, before an authorized Accountant, (Mr. Pennington) the amount of particular expenditure by which was to be regulated the number of acres that should ultimately be awarded, at the rate of four per Pound Sterling on the gross sum admitted to have been expended by the Company. In the case of ordinary claimants, the investigation was to take place on the spot; Lord John Russell, however, explicitly stated himself not to be aware that any exception could arise to the general principle; but if so, it would be considered on its own merits, and dealt with accordingly.

It is indeed inconceivable how the Company could maintain that Lord John Russell never mentioned a word respecting the necessity of the Company's proving its original title to particular lands, before the Court of Claims, when by Clause V., of the Agreement, the Company was restricted in its choice of lands, to those

parts to which it laid claims in virtue of contracts made with the Natives. Lest, however, there should exist any doubt upon this point, in his reply to the letter which Mr. Somes had written, consenting in the name of the Company to the arrangement in question, Lord John Russell as explicitly announced that a Land Commission would be nominated to determine the validity of such contracts on the grounds of equitable purchase and as between the Natives and the claimants; to which principle he admitted of no exception. 130

What renders the assertion of the Company even yet more flagrantly inexcusable, is that the terms of the special arrangement were defined by Lord John Russell before he even entered upon the question of the general principle on which the Land-claims were purposed to be adjusted: yet both to the agreement and to the general principle did the new Zealand Company thankfully accede; nor did it prove refractory, until the Land Commissioners had pronounced judgment in its disfavour.

Equally as inconsistent was it on the part of the Company to contend that the Government's intended grant depended "on the sole con-

dition of proof of expenditure to the satisfaction of the Government Accountant;" for how, we will ask, could the Crown pretend to grant lands which it had not to grant, save those to which it asserted its title as acquired through its subjects from the Natives, and in return for some adequate consideration? Over these indeed it asserted its claim in virtue of its prerogative, "the King being the source of all title;" but it is clear, that if its subjects failed to prove their original title, its own would have fallen to the ground, since it was precluded by a Treaty from assuming any proprietary rights whatsoever, except as it might be in accordance with the terms of that Treaty.

But although we believe – founding our opinion upon a careful perusal of the Parliamentary documents before us – that the New Zealand Company fell into a most unaccountable and fatal error with reference to the true construction of its original agreement with Lord John Russell, it is not to be disputed that the acts of the local administration were, on account of their contradiction in many instances, ill-calculated to bring about a speedy adjustment of the question as between the land-claimants generally, the Natives and the Government. The

Company always persisted in maintaining that Lord John Russell had made to it an unconditional grant, dependent only upon proof of expenditure for colonizing purposes, and, in consequence, heaped censure upon Captain Hobson for compelling it to appear before the Court of Claims. In like manner, after the disastrous massacre at the Wairau, great outcry was raised against Acting-Governor Shortland, because he warned settlers off all lands to which the claim was disputed by the Aboriginal owners: according to our views of the case, a very proper measure for preventing a recurrence of that fatal scene, the entire blame of which unfortunately attaches to the systematic pursuit of the Company's policy. 131 So far, and under the circumstances above mentioned, were, all the losses which befel the Company, in a measure of its own seeking, and they ought not to have been attributed to Captain Hobson or to Mr. Shortland's measures. Against Captain Fitzroy some of its complaints may be urged with apparently more justice, as we shall presently show; though, comparatively its losses were not more serious than were those collectively

of the Colonists generally; nevertheless, we cannot arrive at any other conclusion than that the fundamental error of the Company was in its misconstruction of Lord John Russell's original agreement, in its repugnance to submit its first title to lands to the arbitration of the Court of Claims, and in its consequent determined and systematic opposition to the principles of the Treaty of Waitangi; namely, the plenary recognition of the right of the native New Zealanders to the whole of the soil of the Islands, and the obligation upon the Crown to extinguish that right by fair and equal contract, on the basis of adequate compensation.

What extenuation, either, can it offer for its persistence in transporting the emigrants of 1839, and for its lavish expenditure of the public money in prosecution of its pet-scheme of colonization upon the Wakefield principle, when it is notorious that it received from the Legislature repeated warnings of the illegality of these proceedings? Was there no fundamental error here? 132

On what plea can it justify itself, not for disposing of land at the rate of from one Pound

to two per acre – land originally acquired at the average price of one halfpenny – but for promising to put emigrants in possession of lands which had never been surveyed, which were wholly unfit for cultivation, or were remote from settlements either existing or in embryo, when, as an inducement to purchasers, those same lands were represented as being immediately available, fertile, and readily accessible. Was this an error, or something worse? 133

When in 1840 it published its Prospectus, advertising its intention of forming the new Settlement of Nelson, and undertook that the best remaining site in New Zealand should be selected for this express purpose, did the Company know, or did it not, that it possessed no authority for guaranteeing so unlimited a selection? The reply is, that, the very first act of the Company's agents, immediately upon their arrival at Wellington, was to apply to Governor Hobson to point out the site of the new settlement: a proof that the choice thereof did not rest with the Company. 134 Was Governor Hobson, then, responsible in 1841,

for the rash promises and assertions of the Company in 1840?

Were more direct proof wanting, that the Company did not enjoy the privilege of an unlimited selection of locality for the site of new operations, and that it was subject to the approval of the Governor, such proof may be found in Lord John Russell's Despatch to Captain Hobson, of the 22nd April, 1841, in which the Governor is authorized to exercise his discretion to permit the Company to make selection of lands in New Zealand, not within the limits prescribed by the original agreement of November, 1840. Further, even in 1843, when the Company was contemplating the formation of its Scotch Settlement, so well aware was it that this privilege did not belong to it unrestrictedly, that having acted only upon the supposition of the continuation of a similar authorization to Governor Fitzroy, it addressed to the Colonial authorities a special request upon this head, to which Lord Stanley replied through Mr. Hope, affirming the fact, and thus placing the Directors in a position to give a positive assurance to the intending settlers.

These were grievous errors, and mainly contributed, not only to involve the Company in inextricable difficulties, but brought it into

notorious disrepute with the public; for whatever colouring might be given to these unaccountable proceedings, they were – to speak of them in the mildest terms – highly injudicious, and in every manner disgracing to a body corporate entrusted with interests so important. And what was the result? That undertaking which, at its birth, promised even more largely for the welfare of the Aborigines of New Zealand than for that of the emigrating population of our own country; and the inflated and well trumpeted philanthropy of which – its chief recommendation – elicited high and general encomium, degenerated to the veriest land-jobbing speculation; the Company's ultimate arrangement proving how much nearer and dearer were the interests of the Shareholders than those of the Wellington and the Nelson Settlers, so confiding and so unlucky; many of them having adventured their all upon the faith of a pledge, the only guarantee for the fulfilment of which was in the integrity of those who gave it. 135

Under these circumstances, then, we regard the impeachment of the measures of the Home and of the Local Government, and the attribution

to them of the difficulties which have brought the Company to the verge of dissolution, as an unworthy attempt on its part to fasten the culpability of its own errors upon the Legislature; nor do we clearly conceive upon what peculiar principle the noble Lord at the head of the Colonial Department appears to have been so "ready at once to admit that the Company has established a claim against Her Majesty's Government;" to the extent at least, of incurring a liability of £504,371, to be taken out of the public pocket, in return for a transfer of £1,073,000 acres of land, to the largest portion of which the Company may possibly have proved a title on the score of expenditure for bad colonizing, but to which it could not have produced a real title based on the fair and equitable extinguishment of the Aboriginal claim.

This admission of Earl Grey's is the more extraordinary, that it is in direct opposition to the sentiments of Lord Stanley as expressed

when the latter was at the head of the Colonial department, since which period the main facts of the case have remained unchanged; except in so far as dubious points have been established by evidence not attainable when the Select Committee was sitting.

In answer to the statement of the Company that its title to lands had been admitted by Government not upon the grounds of the validity or the invalidity of its purchases from the natives, but solely upon its proof of expenditure for colonizing purposes, Lord Stanley is emphatically explicit:

"Lord Stanley cannot now permit it to be maintained, either that the natives had no proprietary rights, in the face of the Company's declaration that they had purchased those very rights, or that it is the duty of the Crown either to extinguish those rights, or to set them aside in favour of the Company. The fact of the validity or invalidity of the purchase was known to the Company, and to them alone; the assumed validity was the basis of the promised grant; and if the facts were incorrectly stated at the time, or were incapable of proof, with the Company must rest the inconvenience and loss resulting from their own mis-statement." 136

In the same letter, in allusion to the non-responsibility of Government for the condition of the Settlers, his Lordship is equally explicit.

"Much, therefore, as Lord Stanley regrets the inconveniences which have been experienced by settlers under the Company, he cannot admit that Her Majesty's Government is the party chargeable with having occasioned those inconveniences, nor that it can justly be called on to provide the remedy for them," &c.

Strange, then, that Earl Grey should maintain an opinion so widely different, although it appears even his Lordship himself was averse to discusssing how far the Company's claim gave it a right to pecuniary indemnification, or attempting to calculate its amount. He acknowledged he could not do so without disputing many of the arguments and much of the claim urged by the Company, though he was disposed to regard its maintenance and the renewal of its operations as ends to be promoted more on large views of public policy than on considerations of strict right; wherefore he was willing to make the Government a party to the fair trial of the experiment,

namely; "whether the Company can be placed in a position that will enable it, after a certain period, to continue its operations without further assistance, and with reasonable prospects of success." 137

We cannot, under these circumstances, arrive at any other conclusion, than that the Government, in identifying itself with the Company, has taken a false step; not only because we believe the arrangement it has entered into with the latter, is unsound as a financial transaction, but because the Government will virtually become a party to all the future errors which the Company's agents may commit, and of which it must likewise share the responsibility, besides falling under the suspicion which the New Zealanders in general entertain of the proceedings of the Company's agents; a suspicion based upon their experience of former dealings with them.

But the Company has succeeded in obtaining a respite for three years, commencing from the 6th April, 1847. During this period it is to enjoy the privilege of the entire and exclusive

disposal of all Crown lands, and the exercise of the Crown's right of pre-emption of lands belonging to the natives in the Southern Government of New Zealand, giving up all its own claims to land in the vicinity of Auckland, with an undertaking "to receive the whole amount awarded to it elsewhere." In order to assist it in carrying on its operations and in discharging its liabilities, the Government advances to the Company – over and above the £100,000 – which the latter obtained as a loan in 1846 – the sum of £136,000 – to be paid in three annual portions, making in all, £236,000 – which, at the expiration of the third year, the Company will owe to the Public Treasury. If, at the end of its triennial probation, the Company shall have failed in its new attempt, the Government will assume such of the Company's liabilities as shall have been contracted during the said period, together with its assets, paying for its lands at the rate of five shillings per acre; the fund out of which the Government liability to the Company will be discharged, with interest at the rate of 3 1/2 per cent., to arise from no other source save the proceeds of the sales of the Crown lands, over

and above any outlay for surveys and for emigration.

A very pleasant little arrangement this, by which, after seven years of mismanagement, the New Zealand Company finds itself setup with fresh funds, and to some extent guaranteed against past or future losses, with indemnity of interest in case of failure; or, as the compact further stipulates, with promise – in the event of success – of a new Charter or an Act of Parliament, securing to it under certain necessary restrictions, all its recently-acquired privileges; not less than one fourth of its regular profits, after payment of all its expenses, having, however, to be set aside for the gradual liquidation of its debt to the Imperial Treasury.

It is, doubtless, gratifying to at least one of the contracting parties, to have turned a very bad bargain to apparently so good an account; but on the part of Government, this certainly is not policy according to the four fundamental rules of Arithmetic.

In the event of the Company's success, the Government may look forward to being reimbursed, within a given time, for the £236,000, which the Company will then owe to it; but in case of failure – and judging from the actual

aspect of affairs, this issue is only not certain – the Government will become the Company's debtor – or what will amount to the same, will have incurred a liability – to the extent of £504,371, as the subjoined statement will show. 138

The Government has calculated that the £236,000 loan to the Company will have sufficed to discharge the old liabilities of the latter, so that it will remain a debtor to this amount solely to the Imperial Treasury, which amount the Government will remit; but the Government will also purchase the Company's lands, in all, 1,073,483 acres, at the rate of five shillings per acre; this will make a sum of £268,371, which added to that of the loan, will constitute a total of £504,371. Now, the £236,000 will have been already abstracted from the Imperial Treasury; but the price of the Company's land, or the £268,371, will be provided for from the proceeds of the sales of the Crown lands in New Zealand, over and above a certain special outlay, "and from no other source:" let us, however, ascertain the value

of the Company's assets of land, which Government has consented to take as a set-off against the amount of the Company's liabilities, for which the public pocket is responsible.

The Company actually holds within its settlements, and by virtue of purchase, 24,491 1/2 acres, and according to Earl Grey's views – but contrary to those of his predecessors – is entitled by right of expenditure for colonizing purposes, to an award of 1,048,991 1/2 acres more, of which it has not possession, and to which, under Lord John Russell's agreement, continued under Lord Stanley, it would have to prove, before the Land-Commissioners, that it had fairly extinguished the native claim. The first-mentioned number of acres the Company has paid for at the rate of from twenty to thirty shillings an acre, including, of course, the emigration expenditure thereupon; wherefore, in purchasing this lot at five shillings an acre, and presuming it would fetch the same price if re-sold, Government would appear to be the gainer. In consenting, however, to take the larger quantity, namely, 1,048,991 1/2 acres, at the same price, Government agreed to take what the Company had not to cede; or rather, only what it would

have had to receive. Now, within the districts to which the Company's choice was limited, the land is of inferior quality, and scarcely worth cultivation, though, possibly of some value in other respects; but, and particularly in the Middle Island, Government can purchase land of the Natives, and good land too, at the rate of 1 1/2 an acre; wherefore, admitting that it were bound to put the Company in possession of its claim of 1,048,991 1/2 acres, it might either have assigned the amount in Crown-lands – which had cost nothing – or in lands which it would have paid for at the rate of 1 1/2 an acre, making for the number of acres in question, £6,552 instead of £262,248.

It is true that this large sum, bearing interest 3 1/2 per cent., will fall as a mortgage charge on the Crown lands of New Zealand, and be defrayed only out of the surplus fund which may arise from the sale thereof; so that many years may elapse before the liability is liquidated; if ever it be. But wherefore such a load of debt was incurred at all, we are utterly at a loss to comprehend. It is true Government has calculated that the whole of the Company's lands will sell at the average rate of twenty shillings an acre, but such a price is wholly contingent,

first upon the demand which may ensue from increased activity of emigration, and secondly upon an expenditure thereupon varying from 50 to 75 per cent.: it is, however, absolutely certain that emigration to New Zealand can never prove successful under the actual system, and improvement is unlikely to take place until Government has experienced – to its cost – the fallacy of legislating for individual interests, and shall discover the necessity for adopting some more comprehensive policy.

One most important stipulation, however, been wholly left out of the foregoing arrangement, namely; that the Company should, within some given period, say one twelvemonth after receipt of the first instalment of the Government loan, have been obliged to terminate the protracted agony of the Wellington and Nelson claimants, "either by returning to them the purchase-money for the lands of which they have never been put into possession, or by submitting the case to arbitration here." Up to the present moment, however, the Company absolutely refuses this justice, asserting that the adjustment of the difference has been left to Governor Grey; now the Company's term of probation will expire in

April 1850, so that unless the claims be arbitrated before that period arrives, the event will be a transfer of the whole to Government. But the Company has already pocketed a part or the whole of the two first instalments of the Treasury loan, namely, £28,000., and £72,000., the second having fallen due in April last; the third, of £36,000., becomes due in April, 1849; surely, then, as these monies were advanced by Government, not solely to assist the Company in prosecuting its colonizing operations, "but to place it in a position of discharging its liabilities, and as, moreover, £25,000 thereof were expressly provided for discharging the recognized claims of the Nelson Settlers," 139 the obligation of so doing is not optional upon the Company, but compulsory, according to agreement: if it refuse to render this barest justice to those whose interests it has been the means of so cruelly injuring, the Public will assuredly not fail to qualify such conduct by its proper name.

It may be urged that the term "liabilities" is too general to imply any obligation on the part of the Company to meet individual claims; in this case, the same argument might be also urged by the Government – in the event of its ultimately becoming responsible for the Company's debts – and thus the claimants may look forward to illustrating in their own persons, the truth of that popular adage which so forcibly delineates the inconvenience and the discomfiture attached to taking up a seat between two stools.

To recur now to those acts of Governor Fitzroy which have brought down upon him so much censure, namely: the rescinding of the Act of Parliament by which the price of waste land was fixed at twenty shillings an acre; the waiving of the Crown's right of preemption; the consequent empowering of individuals to purchase land, direct of the natives, at ten shillings an acre; next the reducing of that price of purchase to one penny; and again the issuing of extensive free grants in excess of the limits imposed by the local ordinances and of the awards of the Commissioner; whatever temporary advantages may have accrued to the Colonists by the operation

of these enactments, and notwithstanding the large discretionary power left in his hands to be exercised according to the best of his judgment, it is doubtful if even these considerations can be received as a complete extenuation for his departure from those permanent principles of government which had been fixed by Parliament, commented upon, and enjoined upon him in his instructions, and defined as the basis of the policy he was to observe. At the same time it must be remembered that his position and that of the Colony were most critical; the natives were agitating in arms about the land-question; he possessed no adequate force to oppose them, and was consequently obliged to adopt the most conciliatory measures; the land-question itself was one peculiar to the Colony, and no precedent existed as a guide to the best mode of regulating it; under these circumstances then, greater allowance ought to be made for the much maligned Captain Fitzroy, under whose administration the Colony certainly prospered, so that it may fairly afford matter of doubt whether the complication of New Zealand affairs was attributable solely to the course of policy he adopted, or was originally due to the

continued operation of the old system, unmodified to meet the growing exigences of the times. In concluding this Chapter, we have only to add that the large policy advocated by the Marquis of Normanby, was also mantained by his Lordship's successors, Lord John Russell, Lord Stanley, and Mr. Gladstone, and observed in New Zealand by Governors, Hobson, Shortland, and Fitzroy. The basis of this policy was the Treaty of Waitangi, being the plenary recognition of the rights of the Aborigines to the whole of the soil of their country, and the obligation upon the Government, and upon individuals to extinguish those rights only by fair and equitable compensation. Such likewise has ever been the acceptation of it in the Colony – save by the agents of the New Zealand Company – and in accordance with it the entire body of Missionaries have shaped their conduct and their arguments, with a view to dispel the easily excited suspicions of the Natives, and thus to secure peace in the Colony.

101 Parl. Papers on New Zealand. 1841. Page 24 and on.

102 Terry's New Zealand. Page 91.

103 Memorial to the Right Honourable Earl Grey, from the Wesleyan Missionary Society. Vide Report for 1848.

104 Memorial to Earl Grey, Page 12.

105 Appendix. Opinion of Dr. Phillimore. Pages 8 and 9.

106 Appendix. Opinion of Mr. S. F. Woolmer. Pages 38 and 39.

107 Report of the Select Committee. 1844. Evidence of Messrs. Brodie and Heale. 1005, 1010, 4120 – 26.

108 Clause V.

109 Parl. Report on New Zealand. 1844. Page 390.

110 To wit Charles Terry Esq. Vide his New Zealand, page 116.

111 Par. Report on New Zealand. 1844, page 291 and on.

112 Sir George Gipps to Lord John Russell. Sydney, 16th August 1840.

113 Vide Report, 1844. Page 162. Evidence of J. C. Crawford Esq.

114 "The Wellington and the Nelson Papers, both under the influence of the New Zealand Company, strove unceasingly to misrepresent the motives and acts of the Governor, to propagate falsehoods, and to excite the settlers to a line of conduct the very worst they could pursue for their own interest." – Captain Fitzroy's remarks on New Zealand. Feb 1846. Page 18.

115 Vide 12th Report of the New Zealand Company. Appendix E. Vol. II., No 1.

116 Appendix 12th Report of the New Zealand Company. No. 8l.

117 Remarks on New Zealand, in February 1846: by Robt. Fitzroy.

118 Plain facts relative to the late War in the Northern district of New Zealand. Auckland, 1847.

119 Report of the Select Committee. 1840.

120 The Church Missionaries have published a vindication of themselves in a Pamphlet entitled "A Few Facts relative to the late War in the Northern district of New Zealand. Auckland, 1847." – Ed.

121 Ante. Chap. VIII. Page 260.

122 J. Somes Esq. to Lord Stanley, 24th Jan. 1843. Report on New Zealand, 1844.

123 It will be clearly understood that this is the assestion of the Company, not ours. – Ed.

124 Parl. Papers on New Zealand, 1841.

125 Vide A Letter to the Directors of the New Zealand Company, from the Resident Purchasers of Land. Wellington, Port Nicholson. September, 1846.

126 Vide Parliamentary Debates on New Zealand. Hansard.

127 J. Somes, Esquire, to Lord Stanley. 15th Feb. 1843. Report on New Zealand. 1844. Appendix, No. 2.

128 Ante. Pages 118 and on.

129 Appendix X, to Report from Select Committee on New Zealand. 1844.

130 Parl. Papers on New Zealand, 1841. Page 88.

131 Vide Parl. Papers on New Zealand. 844. The Wairau massacre, evidence on.

132 Parl. Papers on New Zealand. 1840.

133 Appendix B. Concerning the Settlement of Nelson.

134 Report on New Zealand. 1844. Mr. Hope to Mr. Somes. 7th August, 1843.

135 "These, then, are our demands: – We seek compensation for the losses we have suffered from the breach of your contract – We claim he fulfilment of the condition (in your terms of purchase) to give us the best land in your possessions. And we further claim, that the lands awarded to the Company by Government in respect of the expenditure in emigration of the 75 per cent. of our monies be given up to us." (Letter to the Directors of the New Zealand Company from the resident Purchasers of Land. Wellington, New Zealand, 1846.)

136 Report on New Zealand. 1844. Mr Hope to Mr. Somes. 10th Jan. 1843.

137 New Zealand, further papers relative to the affairs of. June 1847. Page 100.

138 Further Correspondence relating to New Zealand. June 1847. Page 100 and on.

139 "The present liabilities of the Company will then be entirely discharged, with the exception of a very small balance due to the Nelson Settlers over and above the £25,000 hereby proposed to be provided for that purpose." (Parl. Papers. June, 1847, page 103.)

CHAPTER IX.

CHAPTER IX.

THE CHARTER OF 1846, AND ITS ACCOMPANYING LETTER OF INSTRUCTIONS.

THE Charter of 1846 was intended to introduce an entire change in the administration of the affairs of New Zealand, and the duty of carrying out the purposed line of policy devolved upon Captain Grey, Governor Fitzroy's Successor. Its principal deviation from the former consisted in the substitution of Municipal Corporations in lieu of the Legislative Council, which, under the Presidency of the Governor, comprised three principal officers of his government, and three Senior Justices of the Peace not holding any place of emolument under the Crown; each of the members of

the Council having particular charge of that branch of legislation with which his own appropriate duties more immediately connected him. The second chief modification related to the future regulation of the Land-question, upon principles which Earl Grey conceived to be sound and of general appliance. Appended to the Charter was a Letter of Instructions, to which, rather than to the Charter itself, Governor Grey was enjoined to look as the foundation of the policy which, so far as it lay in his power, he was to pursue. 140

In canvassing the demerits of the New Charter, we have less to do with the minor details of administration than with the broad principles upon which the entire superstructure is established; we shall therefore confine ourselves strictly to the examination of the two main features which characterize the new era; without entering, therefore, upon any examination of the validity of the reasons which Earl Grey adduced for introducing so radical a change, we may, nevertheless, state it to have been represented as the object of

the new measures, to admit the Settlers to participate more largely in the business of legislation and local self-government.

With a view to carry out this end, the Islands of New Zealand were divided into two provinces, namely: the Northern Island, except certain portions adjacent to Cook's Straits, was constituted the province of New Ulster; and the parts of the Northern Island thus excepted, together with all the remaining parts of the group, were erected into another province called New Munster.

Let us, however, refer the Reader to the following abstract of the Charter, as conveyed in Earl Grey's Despatch to Governor Grey, under date of the 23rd of Decr., 1846. 141

"For the Government of each separate District of New Zealand which is or shall be settled by Colonists of European birth or origin, there shall be a Municipal Corporation. Every such District is to be erected into a Borough, every such Borough is to elect a Common Council, from which are to be chosen a Mayor, and a Court of Aldermen. Every

such Common Council is to elect Members to serve as a House of Representatives, forming one of the three estates of a Provincial Assembly. For this purpose, the whole of New Zealand is to be divided into two or more provinces. In every such Provincial Assembly Laws will be made for the Province by the House of Representatives, by a Legislative Council, and by the Governor; who, together, will constitute the Provincial Legislature.

"But as there are many topics of general concern to all the inhabitants of New Zealand, respecting which some uniformity of legislation and of administration will be indispensable, it is further provided, that a General Assembly of the New-Zealand Islands shall be holden by the Governor-in-Chief. That General Assembly will be composed of himself, and of a Legislative Council, and of a House of Representatives. But no one will be a Member of the Legislative Council of the General Assembly, who is not a Member of one of the Legislative Councils of the Provincial Assemblies; neither will any one be a Member of the House of Representatives of the General Assembly, who is not a Member of one of the Houses of Representatives of the Provincial Assemblies."

Confining ourselves, for the present, to the consideration of this part of the Charter, we do not think a severer stricture could have

been passed upon its general ineptitude, than was conveyed by the fact of Governor Grey's having, upon receipt of it, immediately sent it back to Downing Street, with a diplomatic request that it might be modified; at the same time intimating his intention of suspending its enactment – at least, with respect to New Ulster; (the Northern Island) until receipt of further instructions from the Colonial office.

Governor Grey was not singular in his depreciation of the Charter; it formed the subject of comment immediately upon its publication here, and was strongly opposed by the friends of the Aborigines, who too plainly perceived its exclusive tendency. 142 In the Colony itself it excited the public risibility, though the mirth was bitter; the Newspapers here teemed with sarcasms against it, pointed and severe, and voted it "the wildest, all-unimaginable absurdity that ever issued from the brain of that foolish-compounded clay, man; 143 an amusing piece of nonsense, to be better thought of before the departure of another mail."

As a specimen of legislation for the "Colonists" alone, perhaps this portion of the Charter was open to few objections; but as a measure founded upon what Earl Grey was pleased to call "large principles of public policy," when he conceded so much to the New Zealand Company, it was an utter failure; the veriest political farce, indeed, in which the Aborigines were to figure only as the hobby-horses of the Colonists. By what subtle system of logic his Lordship arrived at the conclusion that the Native New Zealanders were incapable of exercising the elective franchise we will not pretend to determine, but it is manifest that in legislating for New Zealand, he legislated only for the Colonists, and left the New Zealanders wholly out of the question. In fact, the great, the fundamental error consisted in excluding the Natives from all participation in the local Legislature, and, consequently, from a voice in the Representative Assembly; for, it will be remarked, it was imperative that Members of the latter should be likewise Members of the Provincial Corporations, which were instituted expressly for "each separate District of New Zealand which is or shall be settled by Colonists of European birth or origin." And further, as if to make certain

there should be no mistake, the elective franchise was not to be enjoyed "by persons unable to read and to write in the English language."

But what a monstrous anomaly is comprised in the second of the foregoing Clauses, where "all the inhabitants of New Zealand" – of course inclusive of Natives – being assumed to have in common "many topics of general concern, respecting which some uniformity of Legislation and of Administration will be indispensable," it is enacted that there shall be established a "General Assembly of the New Zealand House of Representatives. 'But no one to be a Member of the Legislative Council of the General Assembly, who is not also a Member of the Legislative Council of the Provincial Assemblies!'"

Let us only apply this system to England and the enactment would stand thus:

"The United Kingdom of Great Britain and Ireland shall be governed by a Central Assembly, called a Parliament, composed of a House of Peers, and of a House of Commons; but no one shall be a Member of the House of Peers who has not been a Member of the House

of Commons; nor shall any one be a Member of the House of Commons who is not a Foreigner."

The Aborigines of New Zealand are not denied the possession of interests, in common with the Colonists; nor is the fact disputed that these interests require uniformity of legislation: yet the former are excluded from a participation in the passing of enactments material to the vitality of those interests, they being exfranchised from the Municipal Corporations, which are established for the especial behoof of the Colonists.

The Natives of New Zealand, as British subjects, assuredly possess, with the Colonists, an equal and a valid claim to representation in the National Assembly, in the persons of some of their own delegates. To refuse them this justice, were a palpable forfeiture of the pledge of equality given to them when they ceded to Great Britain the sovereignty of their Islands; were a deliberate violation of the sacred confirmation of that pledge by the Treaty of Waitangi.

It may be objected that the Natives are unfit for representation, as not comprehending

the importance of it; and as an argument against their admission to the Municipal Corporations, that they cannot legislate. But it will be found they fully understand the nature of a General Assembly of the Islands, and that of the power vested in the same; whilst their own native laws prove their complete ability to legislate for themselves extremely well, since our Government tolerates – enacts indeed – that "Aboriginal Districts will be governed by such methods as are in use amongst the native New Zealanders, whose Chiefs or others, according to their usages, shall be allowed to interpret and to administer their own laws, in all cases civil and criminal, 'in which the Natives alone' have any direct and immediate interest, and even beyond the precincts of the Aboriginal District."

Under the most favourable construction of the foregoing somewhat obscure, but decidedly contradictory enactment, it would appear that the Aborigines are to be always governed by one set of laws of their own establishing, and the Colonists by another, in like manner instituted by their own Representatives. Now, setting aside the positive absurdity of so anomalous a system, is it not evident, that, in the

event of litigation between a Native and a Colonist, its evil effects would be manifest? If native law prevailed, the Colonists might justly complain of being obliged to submit to a Code foreign to their habits; of whose peculiarities and provisions they were ignorant; and in the passing of which they had had no voice; whilst, on the other hand, if English local law carried the palm, the Natives would have an equal right to urge the same plea. Wherefore, as it is presumable the law of the Settlement would predominate, the Aborigines assuredly possess a vital interest in a fair representation, and ought, in common justice, to have a voice in the passing of those laws upon which their security and their interests depend.

Such a state of things must infallibly result in mutual disaffection; nor is the Home Government free from apprehension on this head, for the Instructions in question anticipate its issue in the following terms:

"Difficulties will of course arise in the execution of such Rules, but not any which may not be easily surmounted; whilst, with the increase of Christian knowledge and of Civilization, of the use of the English tongue, and of a mutual confidence between

the two races, these distinctions of laws and of legal customs will become unnecessary and obsolete."

How mutual confidence can be expected to arise when so wide a distinction "between the two races" is established at the very outset of their common relations, is a paradox, which only a change in the system will ever solve satisfactorily; whilst to assume that the "difficulties" which "will of course arise" will be "easily surmounted," is not only an admission of a defective policy, but an assertion made in direct opposition to the evidence of facts.

Let the affairs of the Wairau and Wanganui testify to the fallacy of such doctrine!

A word now on the qualification to the elective franchise, namely; the being able to read and to write in the English language. Why, this is demanding more of the New Zealanders than is exacted of our own voters at home; where thousands of individuals, possessing the mere property qualification, register their votes, and yet have no higher notions of reading than they may have acquired from a knowledge of the hieroglyphics on certain sign-boards, nor more elevated pretensions to calligraphy than

consists in a painful elaboration of their mark. It is not sufficient, however, that the New Zealander should be able to read and to write in his own language, but it is further required of him, in order to entitle him to the privilege of appearing at the hustings, that he be also able to read and to write in a foreign tongue, namely, English. With about as much consistency might it be exacted of Englishmen, as a condition of their being admitted to the elective franchise, that they should be able to read and write not only their vernacular, but Norman French, because in that language Her Majesty gives her royal assent to Bills in Parliament.

No marvel, then, presenting itself as it did, groaning beneath the weight of all its absurdities, that this portion of the Charter drew down upon it the opposition of the thinking part of the New Zealand community, but more particularly of the Natives themselves; who being most numerous, and fully aware that they would consequently be called upon to pay the larger share of such taxes as might be imposed, very naturally expressed indignation at being denied a participation in the privilege of voting away their own money; and probably,

only but for the prudence of the Governor, the Colony might again have been embroiled, as will be gathered from the subjoined extract from a Despatch from Governor Grey to Earl Grey, dated Auckland 20th. Aug. 1847, and received on the 3rd. January in the present year. 144

"I have also to state to your Lordship, that, within the last few days, I have received alarming accounts from various quarters of the island regarding the excitement created in the portions of the country most densely inhabited by the natives, upon the subject of the introduction of the new Constitution into this country, and the steps that may be taken regarding the registration of their lands. I am not yet in a position which would enable me to state whether actual insurrection, upon an extensive scale, is to be immediately apprehended; but I cannot entertain any doubt that the country is in a very critical state. I will lose no time in taking such measures as are in my power to quiet the apprehensions which at present exist, and I will also delay for some time the introduction of the proposed constitution; but I beg again earnestly to press upon your Lordship the

advantages which would result from in so far modifying the proposed constitution, as to leave the Governor the power of being able certainly to promise the natives that he will enact any measures which they may request as essential to their interests, and which the Governor may also consider to be absolutely requisite to secure the tranquillity of the country. I can assure your Lordship, that if the Governor's power is confined to merely being able to negative those measures which he deems objectionable, whilst he has no positively active power which enables him to do that which is essential for the interests of the numerous warlike native population of this country, whose interests will be wholly unrepresented, whilst the small European minority will have such large power of legislation, I can see no hope for the future of this country, and I fear that the prosperity which is now dawning upon it will shortly give place to scenes more gloomy than any which have yet been witnessed here. I trust, therefore, that your Lordship will so far accede to my wishes as to take care that this power is preserved to the Governor for at least the next two or three years."

In consequence of representations such as these, Earl Grey found himself compelled to adopt immediate remedial measures; consequently, Mr. Labouchere brought in, on the

part of the Colonial office, "A Bill to suspend, for a limited time, the operation of certain parts of an Act of the Tenth year of Her present Majesty, for making further provision for the Government of the New Zealand Islands, and to make other provision in lieu thereof," which Bill was hurried through the Houses, and despatched with the same speed to Auckland.

Here again was another serious error. The new Constitution had been condemned, without reservation, as unfitted to the state of New Zealand, and should therefore have been at once repealed, not suspended for five years, as the Bill enacts, for, at the end of that period, it will not prove better suited to the Colony than it now is; it will even be still less so, because the Natives will have made rapid advances in the arts of civilized life, will have had time fully to appreciate the effect of excluding them from a voice in the legislature, and will most assuredly and more energetically resist the imposition upon them of a system so flagrantly unjust.

There were not wanting individuals in Parliament to oppose the passing of this Bill, and

who ably detailed its practical inexpediences, 145 nevertheless, the Bill was dragged through the various forms prescribed by Parliament, and having received sentence, was forthwith transported to the Colony, where it will have arrived in time to find the Constitution which it was intended to suspend, already in operation in the Middle Island, where, the Natives being scanty in number, Governor Grey considered it likely to prove less inconvenient of application. We said, at the commencement of a former chapter, that the Charter was a violation of the Treaty of Waitangi. Now it will be remembered that the Treaty conferred upon the New Zealanders all the rights and privileges of British subjects; yet, the very first act of Earl Grey goes to exclude them from one of the most valuable of those privileges, that of the elective franchise. Having been led to believe that by ceding the Sovereignty of their country, and placing themselves under British domination, they would become citizens under

a new law; and having been taught to anticipate their admission to the exercise of the more refined duties of their new condition as one of the first steps towards their equalization with the European aliens who have come amongst them, and whom they are desirous of emulating Earl Grey, solely influenced, as it would appear "by certain erratic notions which he entertains upon similar subjects," 146 suddenly and in spite of wholesome fore-warnings from four of the leading Colonists in New Zealand, enacts a measure which debases these high-spirited, proud Aborigines, and the tendency of which is not only to prevent amalgamation, but to engender a war of races, and an undying hatred between them and the Settlers; for it can never be expected of them to submit to laws in the passing of which they have no voice, nor to pay taxes to the imposition of which they are not a consenting party. Had they been a conquered people, or a nation of slaves, such legislation would have been scarcely excusable, and not more arbitrary. 147

But the evil has been averted for five years, it will be urged, and Governor Grey's wise measures have tended to dispel the threatening tempest. This is true, but the constitution is in activity in New Munster, where there are natives, closely allied to the tribes of the Northern Island; Rangihaiata and Rauperaha, to wit, the owners of the disputed territory of the Wairau. Sympathy in a national cause soon spreads, and an injustice perpetrated against a few natives of the South, may kindle a fire throughout the North which not all the sagacity, skill, or temporization of Governor Grey will be competent to quell. In late wars we have relied for assistance upon, and owed our success to the native chiefs Nene, Te Whero Whero, and others; but if these and their tribes and allies have a common cause of disaffection, they will prove as implacable and formidable in enmity as they have been faithful and unreserved in alliance. Let it not be forgotten that the cutting down of a flag-staff cost the country many lives and some thousands of its wealth.

The constitution itself having been condemned, we cannot dismiss this portion of our subject with a more forcible or practical exposition of the impolicy of suspending rather

than rescinding it, or of the reasons which appear to have determined the adoption of this piece-meal policy, than was conveyed by Sir Robert Peel, in his Speech to the House when the Bill was under consideration.

"What, then, will be the feeling of the native population, if you hold out to them that there is a possibility of that constitution being re-imposed at the end of five years? Why run this risk for the purpose of applying a salvo to the pride of a Secretary of State? (Hear, hear.) If it be really intended to re-impose the constitution at the end of five years, what, in that case, would be the position of the Colony if Governor Grey has accurately described the feelings of the natives? * * * If the natives are so intelligent as Governor Grey represents them to be, and if, among the young chiefs there are men of great pride, we shall have not only their courage but their pride to combat, when they begin to understand what sort of constitutional privileges have been conceded to them; when they learn that every Englishman shall have a right to the municipal franchise, and every foreigner, except for special reasons; but that the natives shall not unless they have got in their pocket a certificate of respectability. (Hear, hear.) It would be better, with a view not to offend their feelings of pride, to establish one equitable rule of qualification in which

all parties would be embraced. These are my general impressions, which I have stated to the House, with the view of offering my advice, and not for the purpose of embarrassing the Government, for whose difficult position I make allowance. I beg the Government to consider whether it would not be better to make some general declaration for the purpose of putting on record our feeling in favour of the establishment of representative Government in New Zealand as soon possible; to take off the shoulders of Governor Grey the incumbrance of this constitution of 1846, and to let him proceed at once to the establishment of municipal institutions, making in respect to them no distinction between European and native blood, but dealing with the population as on the footing of British Subjects." (Hear, hear.)

The settlement of the PUBLIC LANDS was the next material point treated of in the Letter of Instructions, and in calling Governor Grey's attention to this topic, Earl Grey thus particularly expressed himself:

"It shall be my attempt rather to explain what is the policy which, if we were unembarrassed by past transactions, it would be right to follow, and which, (so far as any freedom of choice remains to us) ought still to be adopted, regarding the right of property in land which should be acknowledged or

created, more especially as affecting the Aborigines of New Zealand."

"I enter on this topic by observing that the accompanying Statute, 9th and 10th Victoria, Ch. 104, sec. 11, repeals the Australian Land Sales' Act, as far as relates to lands situate in New Zealand. Thus there is a complete absence of any statutary regulations on this subject. The Queen, as entitled in right of her Crown to waste lands in the Colony, is free to make whatever rules Her Majesty may see fit on the subject. The accompanying Charter accordingly authorizes the Governor to alienate such lands. The accompanying instructions direct how that power is to be used. I proceed to explain the motives by which those instructions have been dictated."

In proceeding to legislate upon this all-important topic, if Earl Grey had confined his enactments to those lands which only, according to all hitherto received notions of property, have been held as waste, namely; all lands that have no owner, no one would have ventured to dispute his Lordship's assertion, that the Queen was free to make thereupon whatever rules Her Majesty might see fit. As, however, his Lordship deemed it necessary to set aside the usual acceptation in which the

term "waste lands," has been received, and to establish a reading of his own diametrically opposed thereto, it may be permitted to any one to question whether, upon this subject, all the world has hitherto been wrong, and whether his Lordship is entitled by any peculiar patent of office, to assume the responsibility of setting all the world right, or to advance, in the name of Her Majesty, an assertion founded upon mere individual dogmas, of which the soundness is universally disputed. Let us, therefore, be distinctly understood as denying to Earl Grey the right of creating a new right of property in land, under the term of "waste," and thereby seeking to deprive the New Zealanders of their natural inheritance, guaranteed to them by a solemn treaty.

As some sort of an apology for the foundation of his new doctrine, Earl Grey proceeds to quote from Dr. Arnold, the passage which we have already given, 148 and to infer, because his Lordship accorded his own sanction to the Arnoldian reasoning, that therefore its justness must be generally admitted; a consequence which to us appears even less logical than the

reasoning itself, for we do not clearly perceive on what principle of credulity such implicit faith could be expected of any one: unless, indeed, his mental powers were hood-winked.

As a doctrine generally applicable to Aborigines, we have proved it fallacious, and monstrous as applicable to the New Zealanders, whom the Crown of Great Britain is pledged to maintain in the full possession of their proprietary rights. Now these existed independently of the treaty by which they were confirmed and guaranteed, yet these, the enactments of Earl Grey are intended to restrict; it is, therefore, not with the abstract principle we have now to do; we have already combated that, and proved its unsoundness; but with the practical evil resulting from its application, with a view to establish the foundation of a system of legislation for New Zealand, in direct contravention with the provisions of the compact by which we hold that country.

We have, then, first to show what description of lands fall within Earl Grey's definition of "waste," and to which he advances the right of the Crown.

As a general principle, his Lordship asserts that all land upon which labour has not been

expended is comprised in this category, as are also those lands which have hitherto been held as the common property of tribes; for, his Lordship says:

"It has never been pretended that the wide extent of unoccupied land, to which an exclusive right of property has been asserted on behalf of the native inhabitants of New Zealand, belonged to them as individuals; it was only as tribes that they were supposed to possess it; and granting their title to such to have been good and valid, it was obviously a right which the tribes enjoyed as independent communities – an attribute of sovereignty, which, with the sovereignty, naturally and necessarily was transferred to the British Crown."

Now upon a simple question of fact his Lordship was here in error, for we have shewn that between the magisterial jurisdiction which the Natives did cede, and the collective Sovereignty in respect of the soil generally, or a general right of property, which they did not cede, there existed a vast difference; and of this fact Earl Grey could not but have been perfectly cognizant, the same being consigned in the voluminous evidence taken before the Select Committees of both Houses, and

notoriously confirmed by the second article of the Treaty. His Lordship, however, disregarding this circumstance, thus continues his argument:

"Had the New Zealanders been a civilized people this would have been the case – if these islands, being inhabited by a civilized people, had been added either by conquest or by voluntary cession to the dominions of the Queen, it is clear that, according to the well-known principles of public law, while the property of individuals would have been respected, all public property, all rights of every description which had appertained to the previous Sovereigns, would have devolved, as a matter of course, to the new Sovereign who succeeded them. It can hardly be contended that these tribes, as such, possessed rights which civilized communities could not have claimed."

No one disputes your first position, my Lord; but your Lordship's reasoning is, therefore, only the more conclusive against the last position you have assumed. All that is asserted on behalf of the Aborigines of New Zealand is, that they possessed in common, certain proprietary rights which they did not cede with the Sovereignty, and which were specially confirmed and guaranteed to them by a solemn compact

imperative upon your Lordship, as Her Majesty's Minister, to respect. They were not according to received notions, literally, a civilized people dwelling under a Sovereign or Sovereigns to whom were vested – in virtue of that divine right which loyal subjects are expected to reverence – the sole title to property, and deriving from them as the only source of it, a common right enjoyed by all; but their Sovereigns were themselves proprietors in an equal degree, and both parties refused to cede their proprietary rights, which they had always separated from the sovereignty and still persisted in not confounding; wherefore they did possess rights which civilized communities could not claim, because civilized communities have long been accustomed to regard Blackstone's fiction with becoming awe; and whilst they continue to do so, cannot – save by a special compact – alienate the sovereignty without alienating also its prerogatives. If, however, a state of things could arise, under which Great Britain proposed to place herself beneath the yoke of a foreign power; that she remained mistress to dictate her own terms; that the Ministers of the Crown, or the delegates of the people were then to stipulate, that though

Great Britain would obey the laws of her new master, Her Majesty should continue to be regarded as the fountain-head of all title in respect of the property of those who should be born within the precincts of the United Kingdom; that, with this reservation, the sovereignty of the country should be vested in the new dominator; and that the latter should consent to this arrangement, we imagine no one – not even your Lordship – would contend that Her Majesty would not then possess the same lien as at present upon the loyalty of Her subjects, to the extent of their recognizing Her as the source whence they derived title to their landed properties. Yet this, although a more intricate position, consequent upon the difference of our institutions, is, in principle, precisely a similar case to that of the New Zealanders, who, save and except their collective proprietary rights, have ceded the sovereignty of their islands, which, upon these terms alone, Great Britain has acquired.

We previously remarked, that in laying down the foregoing principles, Earl Grey admitted a strict application of them to be impossible, because a state of things inimical thereto had arisen from past transactions; yet,

his Lordship strenuously insisted upon their forming the foundation of Governor Grey's policy, in so far as it should lie in the power of the latter to pursue it. Thus, in referring to those very tracts of land to which his Lordship disputes the right of the New Zealanders, he says:

"I should infer from your own Despatches, as well as from those of your predecessors, that the right of the Crown, could not now be asserted, to large tracts of waste land which particular tribes have been taught to regard as their own. It appears that you have found it expedient to admit these pretensions to a considerable extent, and having done so, no apparent advantage could be suffered to weigh against the evil of acting in a manner either really or even apparently inconsistent with good faith. While, however, you scrupulously fulfil whatever engagements you have contracted, and maintain those rights on the part of the native tribes to land which you have already recognized, you will avoid as much as possible any further surrender of the property of the Crown."

There can be no mistaking terms so plainly significant as these, though, as we shall presently show, Earl Grey subsequently main-

tained that the tendency of this line of policy was not to deprive the natives of their recognised proprietary rights. In determining, however, the origin of these rights, his Lordship appears to have fallen back rather upon an abstract theory than upon the Treaty, from which point date all our recent transactions with the New Zealanders; one of those errors from which much mischief will arise, if Governor Grey should attempt to carry out the enactments based upon them.

Thus much, then, for the general principles upon which the Charter is founded; we will now examine its clauses.

With a view to the systematic alienation of lands called "Crown lands," one important step was first necessary, namely, to ascertain what these were; accordingly, Governor Grey was to order the immediate registration of the extent and limit of all lands considered as the property either of individuals, of bodies politic or corporate, or of the native tribes; the whole of the remainder was then to be declared as constituting the royal demesne.

To this rule no one could object, for if the proprietary rights were to be admitted, first of individuals, secondly, of bodies politic or corporate;

and thirdly, of the native tribes, no violation of the Treaty of Waitangi could be possible; but not content with enunciating the broad principle, Earl Grey proceeded to limit those rights as dependent upon certain conditions; and it is upon this point we presume to dispute the soundness and the justice of his Lordship's views.

Turning to the Charter, Chapter XIII, headed "On the Settlement of the Waste Lands of the Crown," we find the following clauses:

"V. The Protector of the Aborigines, or any officer appointed to act in that capacity by the Governor or Lieutenant-Governor of the province, shall in like manner transmit to the registrar of the district a statement of the extent (as nearly as it can be ascertained) and of the locality of all the lands situate within the same, to which any such Natives, either as tribes or as individuals, claim either a proprietary or a possessory title, which claims shall also be forthwith provisionally registered.

"VI. All lands not so claimed or provisionally registered by the time to be limited as aforesaid, shall thenceforward be and be considered as vested in us and as constituting the demesne lands of us in right of our Crown within the New Zealand Islands.

"VII. Within a time to be for that purpose appointed after such provisional registration as aforesaid of the lands in the said several districts, a land court shall beholden in each, for investigating and deciding on the accuracy and validity of such registrations, which court shall be competent to decide on the accuracy and validity thereof, both as between the claimant on the one hand and us in right of our Crown on the other hand, and as between different claimants asserting opposite and incompatible titles to the same lands, &c."

As a general measure of police it might be deemed desirable that such a general registration of lands as here advised should take place; still, we are of opinion that the advantages of registration have been greatly over-rated, and must inevitably be counter-balanced by the extraordinary difficulties that will attend the executing of the measure: difficulties, heretofore very great, but now greater than ever, because of the increased value of land, and importance which the Natives have acquired as the proprietors thereof; an importance they appreciate more and more as they advance in civilization. Far wiser policy would it have been to leave the question as it was; for, after all, Government has no such pressing need of the lands which

it seeks to confiscate at so much risk; and were this really the case, whilst they can be purchased at a nominal price, the concession of even a doubtful point would be productive of far more satisfactory results than the assertion of a questionable title; let alone that, in the course of time, the Natives would, of their own accord, register, if they perceived that any advantage to them would accrue from it. Under existing circumstances, however, they cannot be expected to assent to the measure, for their natural shrewdness would prompt them to argue that, as the Treaty of Waitangi had guaranteed to them the possession of the lands they collectively and individually possess, there exists no necessity for having them further guaranteed by registration.

But the act of registration is itself open to grave objections, because of the power which it places in the hands of an individual. By the fifth and sixth clauses of the Chapter in question, it will be seen that, in the first place a certain officer is called upon to register provisionally, and within a given period, the lands of the Aborigines within his province: in default thereof – and the time is not specified – all

lands not claimed or thus registered are to be escheated to the Crown.

Now, we would ask, what guarantee does there exist for the Natives, that, in the first place the officer will be able, or willing, or even competent, to fulfil the conditions of this clause. Innumerable circumstances might arise to render this impracticable, so that the rights which they considered secured to them by a solemn treaty, are made to depend upon the fallibility of an individual.

Again: clause Seven renders the decision of the Land-court final. But is it to be expected that the Natives will submit their claims to such a tribunal? The Court is appointed by the Crown, presided over by an officer of the Crown, and limited in its judgment of the validity of claims, by rules laid down by a functionary of the Crown; rules not founded upon "large principles of public policy," nor upon the Treaty in virtue of which legislation is permitted, but upon theoretical dogmas, unsound, partial, and unprecedented. The injustice of such an appeal is flagrant, and never will be submited to.

This brings us to the most important clause of all, in which, governed by the Arnoldian

theory of labour alone constituting right of property in land, Earl Grey has proceeded to define the rules by which the Land court shall be guided in its adjudication of such claims as are referred to its arbitrary decision.

"IX. No claim shall be admitted in the said Land Courts on behalf of the aboriginal inhabitants of New Zealand to any lands situate within the said islands, unless it shall be established, to the satisfaction of such Court, that, either by some act of the Executive Government of New Zealand, as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the right of such aboriginal inhabitants to such lands has been acknowledged and ascertained, or that the claimants or their progenitors, or those from whom they derived title, have actually had the occupation of the lands so claimed, and have been accustomed to use and enjoy the same, either as places of abode, or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life, by means of labour expended thereupon."

Before we discuss the graver matter of this clause, we give it as our opinion that it involves a contradiction of itself; for the Land-court is not to admit any claim on the part of the

natives, unless it be established to its satisfaction, that by some previous act of the Executive Government, or by the adjudication of some competent court, their right to such lands has been acknowledged and ascertained. It appears to us that there exists a singular anomaly between legislation for New Zealand and legislation for Great Britain. In a Court of Law, in the latter country, the validity of a right of any kind, being asserted, would be first ascertained, and upon proper evidence, duly acknowledged. But in the former less-favoured province of the British empire, the law acknowledges the right to begin with, and subsequently sets about ascertaining its validity. Why, if the right of the Natives to their land is to be at the very outset acknowledged by the Land Court, there is at once an end to all necessity for arbitration. What can there remain to ascertain concerning it? Thus there is here either redundancy or contradiction, whilst, if the practice of the New Zealand Land-court is to be based upon such a theory – difficult to comprehend, and self-contradictory – the most lamentable results must ensue, for this portion of the clause leaves the Natives' claims to land wholly in the hands of the Land

court, which before it can pronounce its verdict in their favour, must be satisfied that some act of the Executive Government, or other competent jurisdiction of New Zealand, has acknowledged first, then ascertained, such their right to the lands so claimed.

But to follow out this clause yet further, the Land-court is empowered in such cases to decide upon the validity of the Natives' claims, provided the claimants can shew:

Firstly, "That they or their progenitors, or those from whom they derived title, have actually had the occupation of the lands so claimed." This, of course, throws the onus probandi upon the Natives, but with the extreme and additional disadvantage of their remaining in ignorance as to what the Land-court would be likely, according to Earl Grey's doctrine of land tenure, to consider as constituting occupancy, unless concisely summed up in the words, namely, that "the savage inhabitants of New Zealand have no right of property in land which has remained unsubdued to the purposes of man."

Secondly, "And have been accustomed to use and enjoy the same, either as places of abode, or for tillage, or for the growth of crops,

or for the depasturing of cattle, or otherwise for the convenience and sustentation of life by means of labour expended thereupon."

Now this is simply asserting that the Crown has a right to the greater portion of the New Zealand Islands; for how numerous soever the Natives may be, it is a fallacy to suppose it possible for them to prove they have enjoyed all the land in the mode above quoted. Could they at any time have covered the surface of the Islands with their huts? Could they at any time have brought the whole under tillage? Could they at any time have raised crops upon the whole of it? Could they at any time have expended labour upon the entirety of the soil? And lastly, could they have originally depastured cattle upon it, when they had no cattle to depasture? If by cattle, swine are meant – and we are ready to admit the fact – then, at least in one respect, the original native title is made to date only from the time of Captain Cook, who introduced them; but in this case it would be difficult to over-set the Native title to the whole of the soil, because the swine have overrun the islands. In respect of cattle in the ordinary acceptation of the term, depasturing is now carried on to some considerable extent by

Natives who have been able to purchase stock imported from Sydney, but the number of those who on this account could assert title is comparatively small.

From the foregoing remarks it will be perceived, that over and above those lands in New Zealand which may be presumed to be absolutely without an owner; which therefore are to all intents and purposes waste, and by law considered such; and to which the Crown has an undeniable right: Earl Grey asserts on its behalf a further right to all those lands which though claimed, have not been occupied by the natives, and which they have not been accustomed to use and enjoy either as places of abode, or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life by means of labour expended thereupon.

On the other hand, the Treaty of Waitangi "confirms and guarantees to the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which "they may collectively or individually possess,

so long; as it is their wish and desire to retain the same in their possession."

Our position is, that Earl Grey's enactment is a violation of the Treaty.

That a similar opinion is entertained in the Colony itself is matter of notoriety. The local newspapers have discussed the point over and over, and the most influential residents, together with the Missionary bodies, have not failed to hold serious consultations upon the subject, while the Bishop himself went even so far as to pen a protest against the doctrine advanced by Earl Grey, and to address it to the Governor; in it he declares it to be his "duty to inform his Excellency, that he is resolved to use all legal and constitutional measures, befitting his station, to inform the Natives of New Zealand of their rights and privileges as British subjects, and to assist them in asserting and maintaining them, whether by petition to the Imperial Parliament, or other loyal and peaceable methods." 149

Nor have the Natives themselves been inactive, though they had up to the date of the

latest advices, abstained from any hostile demonstration. Nevertheless, their suspicions are awakened, and there can exist no doubt that but for the decision and admirable prudence of the Governor, assisted by the Bishop and by both the Missionary bodies, long ere this the Colony would have been the scene of bloodshed and devastation.

The excitement which ensued upon the publication of the Despatch and the Letter of Instructions had not diminished at the period of the last advices; vague rumours and anxious whispering were rife, but this was all, though portentous enough. In proof of what is passing there, we subjoin an abstract from a private letter lately received from Auckland, premising that it comes from competent and veracious authority.

'Aukland, 4th Dec. 1847.
"The subject of Earl Grey's Despatch and Instructions has not lost any of its interest. The judgment passed upon it by the Settlers is, I believe, unanimous; at any rate, I have heard no dissentient from that which, I doubt not, is your own conviction, that the thing proposed and recommended to the Colonial Assemblies in the Queen's name is nothing less than a breach of the pledged faith of England.

We are actually witnessing in this place the strange fact, that a memorial is drawn up and signed by the Colonists, praying the Queen to protect the native race from the injustice propounded by one of Her Majesty's principal Secretaries of State.

"The Natives were soon aware of the contents of the Despatch, for many persons are able and willing to communicate such matters to them. Nor do I see how that can be complained of. The Natives, as subjects of the Queen, have a good right to be informed of all measures by which they may be affected. However, so it is, that they are quite aware of the contents of the Despatch; but with their usual practical good sense, they sit still and wait for the next move. They have been long aware that there are amongst us some who prefer the seizing to the buying of their lands; and to them it makes no difference that what is mere cupidity in some may be philosophy in others. But they have a perfect confidence that our present Governor will never put forth his hand to wrong them; and they are satisfied that the new doctrines and suggestions are not 'the word of the Queen.' I will give you an instance of the way in which the Natives take this matter. A young man came, soon after the receipt of the news, to question me on the subject. He said, that at first he did not think it worth while to speak about the reports which had reached him. He

steadily maintained that they were falsehoods; but having heard from four different persons (whom he named), of four different tribes, the same story, he went to an Englishman (whom he named also), and ascertained the truth. He then came to me. He was much calmed by learning that the Letters, Despatch, &c. from England had no present effect at all; that the Governor would take care that the native people should suffer no injustice by reason of any mistake or ignorance of any of the Chiefs at home; and that in case any such injustice were attempted hereafter, it would be proper for them to petition the Queen and all the Chiefs of England, who would take care that justice should be done. In the course of conversation, this young man said, 'If it does come to taking our land the result will be this – our people will believe what has often been told them, that all your proceedings from the beginning have been a trick. Your religion will be abandoned, and we shall return to our old way of living and of shedding blood.' [Ka mahue te karakia: ka noho maori, ka patu maori.] These were his words; for I was so much struck by them that I noted them down at the time. Now this person is a very good specimen of the most hopeful portion of the rising generation, greatly attached to the Pakeha, always wearing our dress, and having partly acquired our language. An older man, who keeps

a school for children in his village, in talking the matter over with me lately, remarked, 'The Natives will not thrive and grow, for they will say, There is a war at hand.' He quietly closed the conversation with these words, 'Ma te kuini tona hiahia e pehi' – 'It remains for the Queen to suppress his desire;' meaning the desire of the propounder of the new doctrine.

"'I mention these small incidents as indicating the character of this people. Perhaps a sufficiently large collection of such facts might open the eyes of some persons in England.

"'But even natural indignation at the immorality of the proposed measures is almost lost in surprise at the mere imprudence of those measures themselves; the natural, and, as one would have thought, obvious tendency of the means to defeat the end sought. A statesman proposes to register the lands of a suspicious and warlike race of people: to make that registration of any value or effect the people themselves must be reconciled to it. In order to reconcile them to it, they are told that the first step in the process will be, to confiscate an indefinite portion of their lands: that no inquiry will be made in the first instance whether the lands to be confiscated have been guaranteed by the Queen or not; that the extent to which the confiscation shall go will depend on the mind of one man,

over whose conduct they will have no controul, and against whose errors and omissions (inevitable in such a business) they will have no appeal, and of whom they may possibly know nothing at all. Is not this the simple meaning of the thirteenth chapter of the Instructions? – a chapter, by-the-bye, which the Local Government, and both the Aukland newspapers, have wisely abstained from publishing."

This last fact speaks volumes, and is too significant to be lightly passed over; we therefore call particular attention to it, not less than to the inference to be drawn therefrom, namely: that such caution would not have been unanimous had there not prevailed also a unanimous impression of the danger which would attach to making known the contents of the Chapter in question.

But we have not yet done with the point at issue.

It may have been observed that clause IX, of the Chapter aforesaid, couples occupation with enjoyment, thus: "that the claimants or their progenitors, or those from whom they derived title have actually had the occupation of the lands so claimed, and have been accustomed to use and enjoy the same," &c. In

the Charter of 1840, however, in which these words were first employed, they did not stand in conjunction, for Clause xxxvii of that instrument enacted as follows: "provided, nevertheless, that nothing in the said Charter shall affect, or be construed to affect, the rights of any Aboriginal natives of the said Colony to the actual occupation OR enjoyment in their own persons." &c.

Now in the debates of 1845, Mr. Hope, in the course of his very able speech, took occasion to remark that in the Report of the New Zealand Company, the word "and" had been substituted for the word "or," and that he did not understand the peculiar virtue of that substitution. We venture to assert that the author of that substitution perfectly understood its virtue, so did they who manufactured the Charter of 1846, and so do we; for whereas, as we observed in a previous passage, 150 we should be ready to limit the proprietary rights of the New Zealanders to lands occupied or enjoyed by them, nor should see in such limitation any infraction of the Treaty, we are decidedly opposed to limiting their rights to lands occupied and en-

joyed by them. Trivial as the distinction may appear, upon it rests the entire point at issue between ourselves and the authors of the substitution alluded to.

According to the true and general acceptation of the word, "occupation" may exist in respect of individual right of property, independently of enjoyment. Thus to individuals possessing extensive domains, may readily be conceded a complete right of occupancy in the same, although they should not enjoy them in any wise; while, provided the limits of the domain be accurately defined, established, and recognized, as is the case with the vast tracts of country owned by our landed proprietors, the actual occupation of any portion thereof, how small soever, confers a right of occupancy in respect of the whole. And so with regard to the tribes and chiefs of New Zealand, who being competent to define the limits of the territories they claim – as all documentary and other received evidence prove that they can – are in like manner entitled to be considered as the actual occupants thereof, although their use and enjoyment of the same may, for the moment, be confined to one particular spot. A right of enjoyment, however, is neces-

sarily dependent upon a 'precedent right of occupation, wherefore, whilst "occupation or enjoyment" would leave intact the very amplest construction of the Treaty, "occupation and enjoyment" would limit proprietary rights to a very narrow compass; wherefore the peculiar virtue of the substitution of "and" for "or" becomes apparent. Occupation is the larger right; enjoyment the lesser: save definite boundary, occupation or enjoyment impose no limitations upon proprietary rights; on the contrary, occupation and enjoyment implies a restriction of the greater right by the lesser. The Treaty of Waitangi and the Charter of 1840, confirmed and guaranteed the greater right: the Charter of 1846 and the Letter of Instructions impose the lesser.

In the course of the same debate of the 19th June 1845, Lord John Russell entered into a Parliamentary explanation of the interpretation which he himself put upon the Charter of 1840, sent out to New Zealand, under his auspices: we will furnish a brief abstract of his Lordship's speech.

"The Charter declares, that nothing contained in it shall affect the right of the Aborigines to enjoy or dispose of any lands occupied or enjoyed by them.

Now, it is by the aid of such guidance as these passages afford us that we can arrive at sound conclusions with respect to the meaning of the Treaty. * * * But without dwelling upon this part of the subject, I may be allowed to state that I never said there was anything in the Treaty of Waitangi which made against the Natives; it left with them all the lands that could be said to be their property. But, on the other hand, I am prepared to contend, that the public law of Europe will not allow an interpretation to be put upon the Treaty, of that extreme length which has on this occasion been attempted. The people of New Zealand are savages and cannibals, but I affirm that their helpless condition ought to be used in their favour in examining the treaty, though I do not support so wide an interpretation of it as some honourable members. * * * In the words I advised the Queen to use in the Royal Charter and in the letters patent, I gave no such interpretation of the Treaty as has been imputed to me. I hope that this house will not sanction, and that the noble lord the Secretary for the Colonies will not sanction, an interpretation of that treaty which I think will be injurious not only to this country, but to the Aborigines themselves, who are told they will benefit by that extravagant interpretation. (Hear.) Having agreed that New Zealand should be governed according to these letters patent; having made the terms I have mention3d with the natives;

and having given instructions with regard to waste lands, I own I had not the foresight to suppose that the numberless disputes of which we have heard so much, would arise respecting the possession of waste lands in that country. I remember that one of the great difficulties mentioned to me was that of making a survey. With regard to the title to those lands, I thought that if a liberal interpretation was given to that article of the Treaty of Waitangi relating to this point, contracts might easily be made with the natives, which would place large tracts of land at our immediate disposal. * * * Major Bunbury, who, under the orders of Captain Hobson, went about to obtain signatures to the Treaty of Waitangi in the Middle Island, stated to Governor Hobson that there was such a vast extent of waste land, that allotments would be made immediately, and that surveys ought to be commenced forthwith in order that settlers might be placed in possession of the land. I believed that my interpretation was generally adopted in the country."

At the risk of being informed that we have helped our opponents to an argument against ourselves, we have quoted Lord John Russell's explanations, because we would not have it supposed we fear the issue; or, having cited opinions adverse to our opponents, that we shrink from meeting the question on what may

appear, at first, dangerous ground for ourselves. Our desire is to fore-stall objection.

His Lordship's first position is, that the Treaty of Waitangi left the Natives all the lands that could be said to be their property.

But this is all that is contended for: the point at issue is, that the Charter of 1846 will not leave to the Natives the lands that can be said to be their property.

The second position is, that the public law of Europe will not allow an extreme interpretation to be put upon the Treaty.

But no extreme interpretation is desired; only a fair and equitable construction, according to established use, and to the received acceptation of the very terms themselves of the Treaty. This interpretation leaves to the Natives all the lands that can be said to be their property.

Thirdly; "the people of New Zealand are savages and cannibals, but," &c.

Yes, they were; but less so in 1845 than in 1840: and in 1840 his Lordship thus writes of them:

"Amongst the many barbarous tribes with which our extended colonial empire brings us into contact in different parts of the globe, there are none whose claims on the protection of the British Crown rest

on grounds stronger than those of the New Zealanders. They are not mere wanderers over an extended surface, in search of a precarious subsistence; nor tribes of hunters, or of herdsmen: but a people among whom the arts of government have made some progress; who have established, by their own customs, a division and appropriation of the soil; who are not without some measure of agricultural skill, and a certain surbordination of ranks; with usages having the character and authority of law. In addition to this, they have been formally recognized by Great Britain as an independent state; and even in assuming the dominion of the country, this principle was acknowledged, for it is on the deliberate act and cession of the chiefs, on behalf of the people at large, that our title rests." 151

Fourthly; in the Charter (of 1840) and in the Letters patent, his Lordship gave no such extravagant interpretation of the Treaty as has been imputed to him.

We are not obliged to answer for what others have imputed to his Lordship: we ourselves impute no extravagance to the foregoing opinions of his, as transmitted to Captain Hobson; and have always maintained that his Lordship's interpretation of the Treaty was consonant with these opinions. This inter-

pretation of his goes to the extent of leaving to the Natives all the lands that may be said to be their property. Our own is identically the same: any other interpretation of the Treaty, on the part of his Lordship, might be justly charged with extravagance.

Fifthly; having given instructions with regard to waste lands, his Lordship had not the foresight to suppose that numberless disputes would arise respecting the possession of those lands.

But these disputes have never arisen between the Crown and the Natives, on account of waste lands claimed by the Crown: they have always occurred between the Natives and the Settlers, arising from the claims advanced by the latter to lands lying waste certainly, but to which the Natives asserted their title, and demanded its extinguishment by fair purchase. To these lands, which could be said to be their property, his Lordship never asserted the right of the Crown; but to these Earl Grey does assert its right. It is, therefore, natural to expect, if Governor Grey should attempt to carry out his instructions under Clause IX, Cap. XIII of the Charter of 1846, that the Natives will resist the new pretensions of the Crown as stoutly as they op-

posed the former encroachments of the Settlers.

Sixthly: Lord John Russell thought, with regard to the title to waste lands, that by a liberal interpretation of the Treaty of Waitangi, relating to this point, contracts might easily be made with the natives, which would place large tracts of land at the immediate disposal of the Government.

But herein lies the whole of the question, namely; whether, as his Lordship intended, contracts shall be entered into with the Natives for the extinguishment, by purchase, of their title to their waste lands? or whether, as Earl Grey proposes, the Crown shall step in and seize them by asserting the prerogative royal? when, by a special clause in the Treaty, it is precluded from so doing, except by purchase. Lord John Russell distinctly admits the right of the Natives to their waste lands, and without limitation of tenure save by occupation or enjoyment; but Earl Grey as distinctly denies their right thereto, restricting their title in general, as dependent upon the expenditure of labour, or occupation and enjoyment. If, in his speech to the House, and in repudiating his ever having given an extravagant interpre-

tation to the Treaty, Lord John Russell intended to assert that he never made such an admission as this, we will not attempt to reconcile so glaring a discrepancy.

We possess, however, even more conclusive testimony than we have already adduced, controverting the assertion by Earl Grey of an unqualified right on the part of the Crown, to all the waste lands in New Zealand, save those upon which the Natives have expended labour, or have used according to Clause IX Chapter XIII of the new Charter; and this testimony exists in the presence of another right enjoyed by the Crown; a right which the Crown has always asserted, and which all parties are agreed belongs to the Crown: we allude to the RIGHT of PRE-EMPTION.

Before we consider the manner in which and to what extent this right operates, and before we point out how signally it annihilates the position of Earl Grey, it will be requisite to ascertain its definite signification.

According to its philological derivation, it signifies a simple right of buying before; or, in more homely phraseology, a right of refusal in matters of bargain; nor does its legal import differ from its philological

sense, for, upon this point we can quote the highest juridical authority, proving the right in question to be: "a right to purchase, upon a reasonable compensation to the individual to whom the property belongs." Thus, with reference to the Crown's right of preemption in respect of lands in New Zealand, the true construction, – to employ the definition of an eminent living jurist – is as follows:

"The Crown has acquired a right to purchase the fee simple of all lands in New Zealand, which fall within the scope of the Treaty – in preference to, and exclusive of any other individual – but if the Crown should decline to purchase, I am at a loss to ascertain by what rule of law the native proprietor, to whom the Treaty has imparted all the rights and privileges of a British subject, can be barred from disposing of his property by sale to any one of his fellow-subjects." 152

Leaving the latter question for ultimate discussion, we will confine ourselves here to the operation of this right only as between the Crown and the Natives.

Earl Grey's position, in reference to waste

lands, is, that the Natives have no right to them, but that the Crown has; and that these lands constitute its demesne. We have, ourselves, conceded the right of the Crown to all lands there – if there be any such – which are absolutely unowned; but we dispute it to those lands which though claimed by the Natives, are unoccupied or unenjoyed by them in the limited sense of Clause IX, Chapter XIII of the Charter of 1846, and under which Earl Grey confiscates them to Her Majesty. Now, by the cession to it of the right of pre-emption, the Crown acquired a right to extinguish, by purchase, all such lands as the New Zealanders should be disposed to alienate; wherefore, here was at once an admission of their right to sell them: but to sell what lands?

The right of pre-emption was intended to prevent the Natives from being the unintentional authors of injuries to themselves; to prevent them from selling lands for a nominal consideration, and to their ultimate detriment: lands which they themselves actually did require, or might one day require. In conformity with this humane principle, the Marquis of Normanby specially instructed Captain Hobson to purchase the waste lands of the

Natives, by fair and equal contracts, and not even to permit them to enter into contracts whereby they might prejudice their own interests; whilst he himself was prohibited from purchasing of them any territory, the retention of which, by them, would be essential or highly conducive to their own safety, comfort, or subsistence; and he was further enjoined to confine his acquisition for the Crown, to such districts as the Natives could alienate without distress or serious inconvenience to themselves. 153 The acts of the local Government were in strict accordance with these principles; hence, it is perfectly clear that the right of pre-emption did not extend over lands actually occupied or enjoyed by the Natives, but over lands which they possessed, though they were lying incult; that is; lands occupied by them but not enjoyed nor used: in a word, their waste lands.

Now, if in virtue of its prerogative, the Crown had, as Earl Grey asserts, a right to absorb these lands; to take them to itself, so to speak; or, in plain terms, to seize upon them for the

public benefit, the assertion of the pre-emptive right was a flagrant, a crying absurdity; for it was "an undertaking on the part of the Crown to purchase that which already belonged to itself: an agreement to buy up its own lands."

But it has never been pretended that such was the intention of Government, in stipulating for the right of pre-emption: wherefore, as this right does not extend to lands occupied by the Natives, nor can be said to extend to lands which may belong of right to the Crown, it is demonstrated that it extended only to lands "which were unoccupied by the Natives; lands uncultivated; lands absolutely waste."

We do not believe that the view we have taken of this point can be set aside by any line of reasoning whatsoever, and find ourselves supported in our opinion, by the very concise summary of the whole question, given by Sir James Graham, in the course of the Parliamentary Debate of the 19th of June, 1845, when, adverting to the right of pre-emption, as a confirmation of the native title to waste lands, he reasoned thus: 154

"Now, I beg the House to remember, that by the act of the local Government, approved by the noble lord, a positive prohibition was imposed on the sale of occupied lands by the natives. Now, the noble lord, when he prohibited the sale of occupied lands, and yet had stipulated for the right of pre-emption on the part of the Crown, must certainly have contemplated the right of buying something which the natives could sell. They could not sell occupied lands; he must, therefore, have contemplated the right of purchase by the Crown of unoccupied lands; and, if that right existed consistently with the Treaty, if there was the right of purchasing unoccupied lands, then the noble lord must have contemplated and have recognized the right (subject to proof before a competent tribunal) of the Natives to part with and sell those unoccupied lands; for unless there was the right to sell there could be no right to purchase. (Hear, hear)."

The Crown, then, has solemnly guaranteed to the Natives of New Zealand, a positive right of property in their waste lands; wherefore, in now advancing on the part of the Crown, an unconditional right to extinguish the Native title to them, Earl Grey manifestly violates the Treaty of Waitangi; whilst, at the same time, in maintaining the Crown's pre-emptive right, as secured under that Treaty, his Lordship furnishes the very strongest argument that can

be employed to overthrow the position he assumes.

To return, now, to the operation of this right as between the Natives and third parties – given that the Crown refuse to purchase – it was of the first importance to define the true signification of the term "pre-emption," for we find, not only that it is asserted to confer on the Crown the privilege of buying before any other party, but also to vest in the Crown a right to prevent such other party from buying even when the Crown itself has refused to do so. Earl Grey distinctly states this to be his view of this point, 155 and in support of it cites the opinion of Mr. Justice Chapman, as given in the case of the Queen versus Symonds, 156 when, the Queen's right of pre-emption having been waived by Captain Fitzroy, in behalf of one M'Intosh, a verdict for the defendant was given on the grounds of the waiver being illegal.

A careful perusal of this case has led us to the conclusion, that the arguments then brought forward went to prove, only that Governor

Fitzroy was not empowered to waive a right exclusively an attribute of the royal prerogative, for upon this single fact the entire question rested; thus, the Court was called upon to arbitrate as between Her Majesty and Captain Fitzroy, not as between Her Majesty and the New Zealanders; wherefore the case ought not to be cited – even were it conclusive – as authority for solving the present difficulty. The point is, not whether any Governor can – unless by special authorization – legally waive the Queen's pre-emptive right: on this head there cannot be two opinions; but whether, when the Crown has had the offer of land from the Natives, and has refused to buy, the Natives may dispose of this land to any third party willing to buy it.

The settlement of this point was not germane to the case of "the Queen versus Symonds;" nevertheless, Mr. Justice Chapman was at some pains to endeavour to prove that the right of pre-emption existed to this extent; he says:

"It is contended that all that the Natives convey to the Queen by the Treaty of Waitangi, is a right to have the first offer of the land; or say in one word, the refusal; – a conclusion drawn from the etymological structure of the word pre-emption.

There can be no doubt that according to the strict meaning of the word, the right of buying before others connotes the existence of a right residing in others to buy after refusal by him who has the pre-emptive right. But the right which resides in the Crown is the exclusive right of extinguishing the native title; the criticism is therefore rather philological than real. The Court must look at the legal import of the word, not at its etymology."

And as a proof that a word may have a secondary meaning totally differing from its original signification, Mr. Justice Chapman adds:

"No one now thinks of objecting to the use of the word sycho-phant, in its secondary meaning, because its true meaning is a shewer of figs."

Now it is not because this learned gentleman was raised from an obscure barrister in London, to the office of a Justice in one of our outlying colonies, that we attach little weight to his authority on the technical meaning of a word; but because his peculiar reading of it is not in accordance with its usual received import. The cases he adduces of the settlements of Port Philip &c. are not in point, for the question was not of the Crown's right to extinguish native title by purchase as against its own sub-

jects, buying without its sanction, but of the right of the Natives to sell after refusal by the Crown. His own instance of "sycophant" establishes a point against him; for, though we do not usually associate figs with an individual of this class, it cannot be disputed that the etymology of the word has all to do with its present acceptation, inasmuch as the fawning of the vendor of figs, in order to induce a purchase of his wares, may readily be conceived to have originated the idea of a fawner or a cringer, and the permanent idea can be understood to have remained to us, although we have lost the figs. But the word pre-emption has no such secondary signification; it means to buy before another, and nothing further; and the learned Justice must have been sadly at a loss for an argument, to fall back upon the sorry sophistry of assuming that the legal import of this word differed from its etymological sense, because, from originally meaning a shewer of figs, the word sycophant, in course of time came also to signify "a fawner, a pettifogger, a wrestler of the law;" 157 a meaning no one thinks now of objecting to.

In giving judgment, the Chief Justice very

properly confined himself to the one material point, namely; whether there was any authority in the Governor to wake such a waiver so as to bind the Crown? His opinion was for the plaintiff, on the ground that the Governor had not such authority; but this was not deciding that, after refusal by the Crown, third parties might not purchase lands which the natives were disposed to sell.

We cannot see, either, whilst the right of preemption is admitted "to connote the existence of a right residing in others to buy after refusal by him who has the pre-emptive right," that its being vested exclusively in the Queen, alters or modifies the position in the least; for Her Majesty cannot be said to acquire exclusively any right more extended than the term conveys; and even Mr. Justice Chapman himself was compelled to assert, that according to his acceptation of the word," it was not the one to have employed; the Queen's right is loosely named; the term pre-emption ought not to have been chosen." Since, then, according to his own opinion, we must consider the legal import of the word, we will take Dr. Phillimore's definition of it, as given by Sir William Scott,

(afterwards Lord Stowell). 158

"A right to purchase upon reasonable compensation to the individual to whom the property belongs."

But it is asserted that if, upon the Crown's refusal to purchase, the Natives were permitted to sell to third parties, it would amount to sanctioning the virtual confiscation of their lands in a very short time, and the mass of the natives, if sales were declared open to them, would become the victims of an apparently equitable rule; for which reason the existing rule contemplates them as under a species of guardianship, and is the only one calculated to give equal security to both races.

There is great truth in this, but likewise profound sophistry. The object of the preemptive right is less to protect Native interests, than to prevent the Natives from coming into competition with the Crown in the disposal of waste lands, and hence, too, the subtle policy of attempting to confiscate these lands, under pretext of asserting the royal prerogative.

This view is fully borne out by the fact of its having been contemplated to impose a small an-

nual tax upon all waste lands, with the intent to bring about their gradual confiscation; or it was also thought that rendering such lands a burden upon the proprietors, would induce these forthwith to dispose of the same to Government; the project, however, was abandoned, or at least never carried out; for the lands must previously have been registered, and hitherto this has been found impracticable. Earl Grey seemed perfectly aware that the Natives could not easily be compelled "to the adoption of a system by which land bought from them at a nominal, or at all events at a low price, by the servants of the Crown, is to be re-sold at a much higher rate to actual settlers;" but with a view to reconcile them thereto, Governor Grey was instructed to impress upon them "that the Crown receives the money so paid for land, only as trustee for the public, and that it is applied for their benefit as forming part of the community," being expended in the promotion of public works, emigration, &c. If the Natives could be brought to believe this, well and good; but, in the absence of the promised benefits, this will never be done save by force of arms; an expensive and dangerous method of enforcing conviction; wherefore, having so objectionable a contingency in anticipation

it would be more desirable to adopt such a system of policy in this respect, as should at once meet the interests of the Natives, and answer the ends of public utility. This might be done by various measures of a less exclusive character than the one recommended by Earl Grey, and which the local experience of so able a Governor as Captain Grey would suggest, but which no legislation from a distance can ever accomplish. Perhaps one of the readiest modes would be by allowing to the Native proprietors a bonus upon the sum paid to them in the first instance, for the lands purchased of them at a nominal price, but re-sold at a high one.

The pre-emptive right, as it is made to operate at present, is prejudicial rather than protective, nor can we better exhibit its evil results than by the following remarks from a work published some time since.

"Government was doubtless actuated by a benevolent and parental view of the subject, when, regarding the Natives as children, it stepped in between them, and land purchasers, ostensibly to prevent their being induced to part with their land at an inadequate price. In addition to the danger of their remaining like children, if they are treated as such, a very great practical injustice is done to the Na-

tives through the very means which are taken to protect them. By the Government assuming the pre-emptive right, the Native is deprived of the privilege of offering his land to the highest bidder. He has no alternative but to keep his land or to sell it at the Government price. If he cannot sell his acres for a hatchet or two, which he has now no inclination to do, he is equally restrained from taking advantage of the risen value resulting from local improvements and changes which he is competent to appreciate. In fact, his kind protector has, without any valuable consideration, and even without his acquiescence, deprived him of his right as a freeholder. It cannot be suspected that, this was the original intention of the Government measure; but it is its obvious tendency, and it is believed that it has been in some instances, the realized result." 159

When we consider the rapidity with which the New Zealanders have progressed in the arts of civilized life, how eager they are for improvement, and how ready to appreciate measures of general utility, we may conceive the impolicy of continuing the unjust operation of a right, which, however good in itself, whilst the Natives were in a state of tutelage, be-

comes arbitrary now that they are so far emancipated as to no longer need so closely watching. Now that they can appreciate the value of their land, they are not likely to sell it for a nominal consideration to third parties; yet they are obliged to do so to Government, though the pre-emptive right was expressly intended to prevent third parties from taking undue advantage of them: the Government thus stands in the place of these very third parties, and whilst professing solicitude for the welfare of the Natives, literally renders them the victims of its own cupidity, or what at least appears as such. It is manifest, then, that some modification of this right is absolutely necessary, as a measure of justice towards them.

The principal argument against permitting the Natives to sell their land to third parties, after Government has refused to buy it, is that by so doing, the Natives would still procure but a low price for their property, whilst Government would lose the fund which it seeks to create for promoting public works, emigration &c,. Now this a very hollow argument, as we will show.

The upset price of land is twenty shillings an acre; perhaps it has cost 1 1/2 d: out of this sum of twenty shillings, Government undertakes to

expend not less than ten shillings for the purposes mentioned; but admitting such expenditure to equal this latter sum, there would still remain to Government nearly ten shillings upon every acre sold. Now if the Natives were allowed to compete with Government, and no restrictions were imposed upon buyers, it is evident that the Natives would successfully undersell the Government; but as Government has fixed the upset price of land at twenty shillings an acre, if buyers acquired it at a lower rate, say five shillings per acre, they might be called upon to pay the difference over to Government: by this method, the Natives would certainly derive as much as they now do from the sale of their lands, and the Settlers would not pay dearer; for whether they pay twenty shillings per acre to Government, in one payment, or, were to disburse it in two, namely; one of five shillings, to the Native proprietors, or less or more as the case might be; and the second, of fifteen shillings, to Government, or more or less, we do no not perceive the difference it would make. The only loss to Government would be the difference between the price it now pays to the Natives, and that which they would then receive;

and such a deficit might easily be covered by a fair tax upon all producing property.

This method would regulate itself; for the Settlers, knowing that whatever price under twenty shillings per acre they might pay to the Native proprietors, would not release them from the obligation of making up the price of twenty shillings to the Government, would buy as readily of the latter as of the former, and even more so; but then the Natives would have no just reason of complaint, inasmuch as they would be free to sell, after Government had refused to purchase: a privilege of which they now stand very unjustly deprived, in consequence of the arbitrary manner in which the pre-emptive right is maintained.

We now come to the last phase in the affairs of New Zealand.

The publication of the Charter and of the Letter of Instructions caused great commotion in the Colony, being there regarded as a violation of the Treaty of Waitangi. The result was a protest on the part of the Bishop, to which we have already adverted; a communition from the Missionaries to their directors at home, and a diplomatic remonstrance from

Governor Grey, who possibly advised the abrogation of the Constitution. We have shown how this was virtually effected; but the second question was left to bring about its own results. However, in the course of the debate which took place on the introduction of Mr. Labouchere's Bill, 160 the Land-question was incidentally alluded to, and at first absorbed the attention of the House. Mr Gladstone most ably advocated the interests of the Natives, but elicited only very evasive explanations from the honorable gentlemen who respectively represented the Colonial office and the New Zealand Company, and who endeavoured to show that Government did not contemplate a violation of the Treaty, inasmuch as it admitted it in its largest sense, and conceded to the Natives a right of property in all lands which they "beneficially enjoyed." As, however, the arguments then employed had been embodied in Earl Grey's despatch to Governor Grey, under date of the 30th. Nov., 1847, we will refer to them, in order to establish the fact of their not in any manner modifying the principles, the observance of which his Lord-

ship urged upon the Governor, as the foundation of his policy.

Yet, in this place, let us pay our tribute to the worthy Bishop, whose name was for a short time so prominently before the public. At our hands his conduct in protesting against what he, in his conscience, believed to be a violation of the rights of the New Zealanders, – his new flock – requires no justification; and if we here allude to it, it is rather for the purpose of removing an impression that prevails, of his views being in opposition to those of the Governor. But his justification in this matter may best be gathered from a statement made by Sir Edward North Buxton, in the course of his address to the House, on the 9th. February last, when, taking up the defence of the Bishop, he said that the Church Missionary Society in London had received, in reference to the Bishop's conduct, certain letters from New Zealand, an extract from one of which he proceeded to read. It was from the Governor to the Bishop, dated some days later than the Bishop's protest, and conveyed the Governor's thanks to the Prelate for his exertions in assisting him in promoting the settlement of the Land question: further, it contained an earnest

request that his Lordship "would now again assist him, (as he had done already on former occasions,) in regulating the question of land-grants to the Church Missionaries." Here then is a proof that the Governor had not lost faith in the Bishop, even after the latter had forwarded his protest. Sir Edward Buxton likewise stated that the Wesleyan Missionary Society had also received communications from members of that body, couched in language so strong, in reference to the Charter and the Letter of Instructions, that the Secretary of the Wesleyan Mission, had requested him not to read those letters to the House. Now all this evidence corroborates the views we have taken of the case, which have been further confirmed by private advices. Indeed, so flagrantly do the enactments of the Charter, – supported as they are by the Letter of Instructions – violate the Treaty of Waitangi, that on the 23rd February last, the Wesleyan Missionary Society addressed a Memorial to Earl Grey, in which the charge was distinctly made. His Lordship replied thereto, through Mr. Under-Secretary Merivale, under date of the 13th April; and from this correspondence we subjoin an abstract, as

being the latest exposition of his Lordship's views.

"I am directed, in the first place, to assure you that the Committee do Her Majesty's Government no more than justice, in believing that they intend, and always have intended, to recognize the Treaty of Waitangi. They recognize it, as Lord Grey believes, in the same sense which the Memorialists themselves attach to it. They recognize it in both its essential stipulations; the one, securing to those Natives Tribes, of which the Chiefs have signed the Treaty, a title to those lands which they possessed according to Native usage (whether cultivated or not) at the time of the Treaty: the other, securing to the Crown the exclusive right of extinguishing such title by purchase. And I am directed once more to refer you to Lord Grey's Despatches of 23rd. December, 1846, and 30th. November, 1847, as shewing that Governor Grey has been throughout directed to proceed with the utmost caution in acting upon the principles of his Lordship's Instructions of the 28th. December, 1846, and to respect all rights which have been secured under the stipulations of the Treaty."

So far this declaration comprises all that one might desire, but – mark the limitation!

"Nor can his Lordship agree with the Memorial-

ists, that there is anything in those Instructions which is either inconsistent with the Treaty, or calculated to excite anything like a reasonable alarm in those who may be interested in maintaining it. The Protector of Aborigines is required to transmit to the Registrar, a statement of the extent of all claims to Native lands, whether by Tribes or individuals, in his District, for Provisional Registration. But no native claim can be finally registered, unless it be established that the right has been acknowledged by some act of the Executive, or some judgment of a Court, or that the land has been occupied in the manner which the Instructions go on to specify."

Now here, in the passage we have italicized, and in spite of the preceding declaration, we find the same principle insisted upon which we have already pointed out as the basis of the enactment which violates the Treaty. "The land must have been occupied in the manner which the Instructions go on to specify," namely; the natives must have actually had the occupation of the lands so claimed, AND have been accustomed to use and enjoy the same, either as places of abode, or for tillage; or for the growth of crops; or for the depasturing of cattle; or otherwise for the convenience and sustentation of life, by means of labour expended thereupon.

But what then become of the lands which lie waste? Why, they are confiscated! The question is not whether the Government will allow the Natives to retain possession of lands that come under the foregoing enumeration, but whether it intends or not to take from them, under this enactment, such lands as have not been used, or enjoyed, or "occupied by them in the manner which the Instructions specify?" This is the real question; and this is precisely the point which was evaded in the course of the last Parliamentary Debate. Occupation AND enjoyment were conceded in the largest sense, but not a right to lands unoccupied OR unenjoyed, that is, waste lands. Occupation in its largest sense would give a title to them, if uncoupled with enjoyment; but this latter is an important limitation of right as conferred by the former. If it be not the intention of Government to confiscate the waste lands of the New Zealanders, why not avow it boldly as some set-off for past errors, and at once, by an unmistakeable enactment, put an end to the doubts which exist? We assert it as our impression, that the whole purport of the Instructions was to give a colouring to the claim covertly asserted in the subtle

enactments comprised in Chapter XIII. of the Charter; that the intent of this Charter is to confiscate the waste lands of the Natives, in direct violation of the Treaty of Waitangi: and that if Governor Grey follow up his instructions – which, however, we are bold enough to say he will not – we may soon expect to hear of a general rise of the New Zealanders against British Authority.

Mr. Labouchere asserted in the House, that "he did not believe there really existed, on the subject of waste lands, any real difference of opinion between Governor Grey and Earl Grey." The best proof of the remarkable unanimity that obtains between them, is in the fact of Governor Grey's not having given publicity to Chapter XIII of the Charter. A further reference to the series of Despatches addressed by him to the Colonial office, will prove that his Excellency regards the Native title to their waste lands as substantially established, he in all cases extinguishing that title by purchase.

But one cannot conceive the policy of asserting such a right on the part of the Crown, as is advanced by Earl Grey, for, as we will proceed to show, it has not even the recommendation of cheapness.

In alluding to his late settlement of the land

question in the district of Porirua, and in the Middle Island and other districts to which the New Zealand Company laid claim – Governor Grey thus writes to the Secretary of State for the Colonies, under date of the 7th. April, 1847. 161

"I should also observe that the position I understand to be adopted by the New Zealand Company's Agent, – that if tracts of land are not in actual occupation and cultivation by Natives, that we have therefore a right to take possession of them; appears to me to require one important limitation. The Natives do not support themselves solely by cultivation, but from fern-root, from fishing, from eel-ponds, from taking ducks, from hunting wild pigs, for which they require extensive runs, and by such like pursuits. To deprive them of their wild lands, and to limit them to lands for the purpose of cultivation, is in fact to cut off from them some of their most important means of subsistence; and they cannot be readily and abruptly forced into becoming a solely agricultural people. Such an attempt would be unjust, and it must, for the present, fail, because the Natives would not submit to it; indeed, they could not do so, for they are not yet, to a sufficient extent, provided even with the most simple agricultural implements; nor have they been instruct-

ed in the use of these. To attempt to force suddenly such a system upon them, must plunge the country again into distress and war; and there seems to be no sufficient reason why such an attempt should be made, as the Natives are now generally very willing to sell to the Government their waste lands at a price which, whilst it bears no proportion to the amount for which the Government can re-sell the land, affords the Natives, (if paid under a judicious system,) the means of rendering their position permanently far more comfortable than it was previously when they had the use of their waste lands, and thus renders them a useful and contented class of citizens, and one which will yearly become more attached to the Government."

"I am satisfied that to have taken the waste lands I have now purchased, by any other means than those I have adopted, would once more have plunged the country into an expensive war, which, from its supposed injustice, would have roused the sympathies of a large portion of the native population against the British Government, and would thus probably have retarded for many years the settlement and civilization of the country."

Contrasting this announcement with the doctrines contained in the Letter of Instructions, and carried out in the Charter, no one can doubt the extraordinary unanimity of

opinion, that on the subject of waste lands, prevails between Earl Grey and the Governor of New Zealand.

On referring to Clause IX Chapter XIII of the Charter, it will be found that use and enjoyment by means of labour &c., being asserted as the principle on which the validity of a claim to land was to be admitted, such claim having been first acknowledged and ascertained by some act of the Executive Government of New Zealand, as hitherto constituted, or by the adjudication of some Court of competent jurisdiction, was to be referred to the new Land Court for approval, which approval was made dependent upon that Court being satisfied that the first claim had been acknowledged and ascertained, according to the principle defined. Now the Wesleyan Missionary Society objected to this enactment, on the plea that "its inevitable consequence would be the seizure by the Crown of large tracts of land, in violation of the Treaty of Waitangi." But Earl Grey thus endeavours to quell these well-grounded apprehensions.

"Now the Treaty of Waitangi is unquestionably an Act of the Executive Government, and it ap-

pears to Lord Grey that the reasonable construction of these words would be, that wherever a claim had been made to land, on behalf of a Tribe which had been a party to the Treaty, and it was established that the land so claimed had belonged to the Tribe at the date of the Treaty, the claim would be secured by final Registration. But, clear as this may be thought, his Lordship is so anxious that there should be no possibility of any misapprehension on this subject, that he will specially direct the attention of the Governor, and, through him, of the Local Authorities, to this, as the true meaning of the Instructions."

But this to us is not so clear, for our reading of the foregoing Clause leads to the inference that the rights of the Natives depend, not upon the Treaty of Waitangi, but upon the consecutive acts of two competent Courts, both regulated by the same principles as to the foundation of valid claims to land, namely, occupation and use. Earl Grey states that the Treaty of Waitangi was an act of the Executive Government, and that all tribes parties to the Treaty would have their lands assured to them by the Land Court's registration thereof, provided it were established that the land so claimed had belonged to the Tribe at the date of the Treaty.

But on what is the establishment of a claim made to depend. Not upon the general recognition of native rights under the Treaty, but upon proof of occupation and enjoyment. To call the Treaty of Waitangi an act of the Executive Government, is merely wriggling out of a difficulty. The Treaty was a general recognition without limitation, of the rights of the New Zealanders to the whole of the soil – (save unclaimed parts, if any) but the Clause in question aims at the limitation of those rights, by occupation and enjoyment. Is it pretended, then, that the tribes who signed the Treaty gave evidence of occupation and enjoyment of the lands they claimed, before they were admitted to become parties thereto? Surely not: yet this is the only inference that can be drawn from Earl Grey's assertion. The establishment of the Executive Government was a consequence of the Treaty; for until Her Majesty's authority had been asserted and acknowledged by the adherence of the native Chiefs, no Executive Government could have been instituted; or if the latter existed previously to the conclusion of the Treaty – as according to Earl Grey's assumption it did – then was the Treaty a nullity. The Crown of Great Britain de-

rives its rights from the Treaty; this is admitted by all: yet we are to believe in the existence of an executive before those rights were acquired! We may be allowed to doubt whether any further instructions which his Lordship may send to Governor Grey, will prevent misapprehension on this head, unless those instructions annul the restrictions by which the recognition of the claims of the Natives are limited under Clause IX of Chapter XIII of the Charter.

In reply to the Bishop of New Zealand's protest, Earl Grey, writing to Governor Grey under date of the 30th November, 1847, enters into a justification of the language held in the Instructions, denying that they bear the signification which the Bishop had attached to them, and alleging that the latter had judged too hastily, and not ascertained with sufficient care what the policy really was that he thought proper to condemn.

"The protest,' his Lordship goes on to observe, 'is directed against what is termed my doctrine, that the savage inhabitants of New Zealand have no right of property in land which they do not occupy, and which has remained unsubdued to the purposes of man, and seems to assume that this doctrine was

to be acted upon by the Government's at once taking possession of all such land in New Zealand. The Despatch instead of expressing any such intention, expresses the very reverse. It says, indeed, that if this question were now open for consideration, that is, if we were commencing the Colonization of New Zealand at the present time, the doctrine to which the Bishop objects would, in my judgment, be the best foundation of our proceedings, as I conceive it to be the true principle in regard to property in land. These opinions I see no reason to alter. * * * But it is one thing to deny the general theory on which a certain supposed right is founded, and another thing to endeavour to set aside rights which have been formally recognized, because they are founded on a theory supposed to be erroneous. While I laid down what I consider the better principle, I endeavoured carefully to guard against being supposed to enforce it as applicable to the present state of New Zealand. I expressly informed you that, in point of fact, you were not in a position to act upon that principle, and that, from past transactions, a state of things had arisen, in which a strict application of it was impossible. I stated my belief that the right of the Crown cannot now be asserted to large tracts of waste land which particular tribes have been taught to call their own. I directed you, in the strongest language, to maintain those rights of the native

tribes to land which you have already recognized. All that I advised was this: that the theory of the ownership, by tribes, of unoccupied land should not be made the foundation of any future transactions, and that, what I conceive to be the rights of the Crown, that is of the public (where no engagements to the contrary have been made) should be carefully attended to in the disposal of land, wherever no property has yet been recognized."

The substance of the foregoing is simply this: the Crown has a right to all the waste lands in New Zealand; that right has, unfortunately, been ceded in some instances: it must not again be ceded: where waste lands exist, take them in right of the royal prerogative, "provided they can be taken with safety;" but if they cannot, then let the Natives keep them. Thus, justice is made to be not a principle, but a point of expediency. Such latitude, in the hands of any man less scrupulous than Governor Grey, would prove dangerous in the extreme; for, being reduced to a question of mere expediency, dependent upon one man's judgment, it is not improbable that the amount of military force at disposal, might determine the relative rights of the Crown and of the Natives.

We have already stated that "over land in which no property has yet been recognized," that is, over land absolutely unowned, we consider the right of the Crown undoubtedly extends; but it is not to such, that the enactments of the Charter relate, but to the "waste lands of the Natives;" wherefore, if "the theory of the ownership by tribes of unoccupied lands," is not to constitute the foundation of any future transactions, it is manifest that a confiscation of these lands is contemplated by an assertion of the prerogative royal.

His Lordship furthermore explains thus, the intent of Clause IX, already so many times referred to.

"The Protector of the Aborigines is there directed to inform the Registrar respecting all lands within his district to which the Natives, "either as tribes or individuals," claim either proprietary or possessory title; that all such claims shall be registered; and that wherever it shall be shown, either that such lands "have been actually occupied by the Natives," or that the "ownership to such lands although unoccupied," has been recognized by the executive or judicial authorities, to be vested in the natives, such claim shall be finally and conclusively admitted."

This, as we have shewn, is the very am-

biguity that we decry, for it will be seen that the "final and conclusive admission" of the claim of the natives to their waste lands, depends upon their giving proof that the executive or the judicial authorities have already recognized the ownership of such lands to be vested in the claimants. This necessarily involves the supposition that all the native claimants have, at some time or other, appeared before the judicial authorities for the purpose of advancing their claim; or, if the Treaty of Waitangi be – as Earl Grey asserts it is – an act of the Executive, recognizing the native claims without limitation, it is clear that the restrictions imposed by the registration clause are unnecessary.

His Lordship "cannot imagine what portions of these Instructions can be designated as a violation of the rights of the natives, as established by the Treaty of Waitangi, or any other agreement or authority." We take it, then, upon ourselves, to assist his Lordship's imagination by stating that it is his definition of waste lands which violates the Treaty. As a general principle, all lands upon which labour has not been expended are declared waste, and – save where it is inexpedient to seize upon

them – are declared the demesne of the Crown. All lands are declared waste of which the natives cannot prove that themselves or their progenitors have actually had, the occupation and enjoyment for one or all of the following purposes: for places of abode; for tillage; for the growth of crops; for the depasturing of cattle; or otherwise for the convenience and sustentation of life by means of labour expended thereupon. But over and above these, the Treaty of Waitangi mentions, "and other properties, which the native Chiefs and Tribes may individually or collectively possess." These "other properties" are, by the Charter, declared waste, and are confiscated as the "demesne of the Crown:" the terms are clear and precise, and admit of no other construction.

Earl Grey's explanations and promises seem, nevertheless, to have fully satisfied the Committee of the Wesleyan Missionary Society, that they had mistaken his Lordship's policy, as also the intent and purport of the Charter and of the Letter of Instructions. Now we ourselves confess to a less amount of credulity; for we simply believe that the question remains absolutely where it was, antecedently to the presentation of the Memorial, save that it has been

encumbered with much additional sophistry. We have given our reasons for coming to this very different conclusion, and we trust that all who are interested in the question will consider the points we have raised, with a view to procure an unequivocal and satisfactory adjustment of difficulties which have been so long pending.

140 Parl. Papers on New Zealand. 1847, page 69. In Continuation of the Papers presented 26th of Aug. 1846.

141 Correspondence relative to the affairs of New Zealand. 1847. In continuation of the Papers presented 26th of Aug. 1846, page 64.

142 Address to Earl Grey, presented by the Committee of the Aborigines' Protection Society. February, 1847.

143 The New Zealander. 12th and 19th of June, 1847.

144 Papers Relative to New Zealand. Correspondence with Governor Grey. 3rd. February, 1848.

145 Hansard's Parliamentary Debates. Speeches of the Earl of Lincoln, Mr. Gladstone, Mr. D'Israeli, Mr. V. Smith, Sir Robert Peel, Captain Harris, Mr. H. Drummond, Sir R. Inglis, Mr. Hutt and Mr. Scott.

146 Speech of the Earl of Lincoln, Feb. 14. Hansard's Parl. Debates, New Zealand.

147 Speech of Mr. D'Israeli. 9th. Feb. 1848. Hansard.

148 Chapter VII. Page 185.

149 Parl. Papers. New Zealand. 1847. Page 82.

150 Chapter viii. Page 226.

151 Par. Papers on New Zealand. Lord John Russell to Governor Hobson.

152 Appendix. Opinion of Dr. Phillimore. Page 10.

153 Ante. Chapter IV. Page 99.

154 Hansard's Parl. Debates.

155 Corres. between the Wesleyan Miss. Society and Earl Grey, on the apprehended infringement of the Treaty of Waitangi. April 1848.

156 Parl. Papers on New Zealand, Dec. 1847, page 66 and on

157 Etymological Dictionary, Ency. Brit.

158 Appendix, page 10.

159 On the British Colonization of New Zealand. By the Committee of the Aborigines' Protection Society. 1846.

160 Hansard. Parl. Debates.

161 Parl. Papers on New Zealand. 1847.

CHAPTER X.

CHAPTER X.

A FEW LAST WORDS. SUMMARY.

IN the foregoing pages we have proved that the principle "in regard to property in land," as laid down by Earl Grey, in the Letter of Instructions which accompanied the Charter of 1846, is not only radically unsound and unjust, but specially inapplicable to New Zealand, where the native title to the soil was, at the very outset, recognized by the purchases – good or bad – of the original Land-claimants, and has subsequently been admitted by those of the New Zealand Company, of the local Government, by the decisions of the Commissioners of Land-claims, and further, officially recorded in the Instructions of the Secretaries

of State to Governors Hobson and Fitzroy. Tested by the practice of the North American Colonies, which Earl Grey cites as having existed for 300 years, that principle signally fails, because the various treaties entered into with the Indians by the States, show that even the Indian hunting-grounds were respected as property, and the title thereto was extinguished by purchase. Besides, the two cases are not parallel, for inasmuch as in the case of the North American Indians there existed no treaty by which their rights generally were recognized, in the case of the New Zealanders, the Treaty of Waitangi preceded our formal occupation of the country, and the natives understand that Treaty to have guaranteed to them all the rights they possessed antecedent to it. Now, upon the authority of the Governor, of the Bishop, of the Chief Justice and of others, these rights are established as extending over the whole of the Northern Island, and, as far as present information guides us, the Middle Island offers no exception; the purchases of the New Zealand Company proving, that although the Natives may there be fewer in number, and land consequently more easily obtainable, the boundaries are as distinctly de-

fined as in the Northern Province, the notions of property as decided, and as determined the repugnance to be dispossessed without adequate compensation. Indeed, in all the disputes which arose between the Company and native claimants, but particularly in the case of the Wairau claim, the jealousy of these lest their title to the land should not be clearly admitted, influenced them in refusing to accept the presents astutely offered as a bonus on what was asserted to have been the original price paid for land of which they disputed the sale. 162 But even more than possessing definite boundaries to their lands, denoting the property of either tribes or individuals, it is known that amongst themselves the most sanguinary wars have arisen whenever these boundaries have been invaded, and it cannot be doubted but that similar aggressions, whether by their own people or by ourselves, would produce similar results.

Not less certain is it that their waste lands have an assignable value; for whilst their

wood-land furnishes them material for carrying on an active trade in timber; their fern-lands (or wastes as Earl Grey defines them) and their flax-swamps &c., supply them with produce for exportation; whilst their pig-runs are not of less importance to enable them to victual the English settlements with pork; though formerly this trade was larger than it now is: add to this that they let out their grass-plains for grazing the Settlers' cattle; the Wairapara valley, for instance, being divided into lots, let at £12 per acre; that their rivers, lakes, duck and eel ponds furnish them with food: and it will be readily understood that extensive districts to them belonging, though uncultivated, are as much their property as are their pahs and potatoe-grounds.

The paucity of their present numbers is no fair test of the possible native population, for long and devastating wars, the former practice of infanticide and cannibalism, the introduction of European maladies, and the evils of a transition state, are all causes which have proved fatal to its increase; therefore, regarding the value of the natives' waste land to be dependent only upon the future demand they may have for it, these are grave political reasons for not

depriving them thereof, except upon terms of equitable compensation.

Furthermore, Earl Grey's principle is practically inexpedient, because of the general disposition, on the part of the natives, to part with their waste lands for a sum that bears small proportion to its actual value for colonizing purposes. Again, it has been proved by the quiet possession which, for thirty years, the Church Missionaries enjoyed of the lands they had acquired of the Natives, that fair purchase is a certain foundation for peaceable occupation, whilst unfounded assertions of right have as notoriously terminated in bloodshed. And this has been the experience in our North American Colonies also, where the massacre in Virginia ensued in consequence of the suspicions of the natives, excited by their knowledge of our acts in Australia, Van Diemen's Land, India, &c. 163

From the foregoing remarks, founded as they are upon fact, it may be inferred that any attempt at spoliation of the New Zealanders, will be most likely followed by a general war; but as suspicions of such intentions on our

part are already current, it is manifestly the duty of the Legislature to announce, in unambiguous terms, that such is not its intention; and as a proof of its sincerity, to revoke the objectionable clauses which the local authorities have feared to publish. Let it be remembered that land with secure possession can be had at a moderate price; and that from the inaccessible nature of the interior of the country, no amount of military force could protect the settlers and the Missionaries located in the more remote parts.

The Government policy in respect of the high upset price of Crown lands, will also be found a point worthy of immediate attention, for it is an insuperable bar to the rapid acquisition thereof by Settlers, as is proved by the difficulty which the New Zealand Company experiences in disposing of its property generally. To induce emigration, facilities for procuring land should be afforded to intending emigrants; but whilst the upset price remains fixed at twenty shillings per acre, the very classes who would turn such land to account, are debarred from purchasing it, because the first outlay is not the least.

In the arrangement entered into by the Government with the New Zealand Company, the reason adduced for consenting to take the

Company's lands at 5s. per acre, was to prevent the Company – in case of its failure – from glutting the market with cheap land, and thus damaging the ulterior views of the Government. The result will prove, however, that such a course would certainly have proved the best. As it is, the Company has at its disposal the whole of what are called the Crown lands in the Southern province; (the Middle Island:) it holds possession of the Otakau district; thirdly, and under Earl Grey's arrangement, it is entitled to a grant somewhere, of 1,048,991 1/2 acres. Now as it is to receive 5s. per acre for this number of acres, it will keep it as a reserve, ultimately to claim of Government the value of the same, in money; it will of course proceed to dispose of the Otakau district, for which it has paid; and after selling the whole – should it succeed in so doing – will traffic in the Crown lands, from the proceeds of which – being bound to spend upon them, not less than ten shillings per acre in colonizing – it would derive a certain amount of clear profit; thus, in all respects, the Government will be the loser. But let it be borne in mind, that Government has engaged not to disburse its possible liability to the Company, save from the proceeds of the sales of the Crown

lands – over and above outlay for emigration, &c. – under the actual system, no surplus can possibly remain to it: on the other hand, the Company is likewise under engagement – in the event of its success – to discharge its debt to the Imperial Treasury, only by setting aside not less than one fourth of its clear profits, over and above its emigration expenditure: terms which render it extremely doubtful whether the Company would ever be able to discharge the Government claim; as hitherto, the sale of Crown lands, after deduction of all necessary expenditure, has left no balance.

Referring now to the measures which Government ought to take for the advancement of the New Zealanders, it cannot be doubted, that having conceded to them all the rights and privileges of British subjects, they are entitled forthwith to be put into possession of them; and one of the first of these ought to be their admission to a share in the local Government. So far, however, from any principle being defined, or any system, under which they might gradually be brought into a complete state of civil organization, their progress is left to the results of their association with the Settlers, and their acquisition of knowledge,

such as reading and writing in the English tongue, to the voluntary instruction of the Missionaries. It is not a question of expediency to lose no time in promoting their social advancement, but one of sound policy; for, whilst we can make use of Nene, Waka, Te Whero Whero, and such Chiefs, to aid us in quelling rebellion, it seems only bare justice to associate them in council upon matters of general importance to themselves and to the Colony.

Let Government look to this in time then; let it quickly change its entire system of Colonial policy; for it will find that the prosperity of all our Colonies is intimately associated with the welfare of the Native population, whether great or small; but which, unfortunately, it has too much neglected: and that one broad rule of justice, applicable to Natives as well as to Settlers, is not less a political necessity than it is a Christian duty.

162 Other circumstances (not narrated in the "Nelson Examiner") which preceded the conflict at the Wairau. – Colonial Intelligencer, Vol. I., page 210 and on. Ollivier: Pall Mall.

163 Kent. Vol. III. 398.

POSTSCRIPT.

POSTSCRIPT.

P.S. – The following extract of a letter from Auckland, New Zealand, under date of the 16th March, 1848, is too important to be omitted. The last advices are of the 18th of the same month.

"A Despatch from Earl Grey, the Colonial Secretary, to Governor Grey here, directs measures to be taken by the Government for obtaining land in New Zealand, the property of the Natives, under pretence of its being waste-land, of which there is not an inch in the Island unclaimed by a Native owner: – and all this in direct violation of the Treaty of Waitangi, signed by the Chiefs, and by Her Majesty's duly authorized representative, Captain Hobson, the Governor.

"Before the New Zealanders will suffer such fraud and perfidy to be practised upon them, they will combine to a man and defend their property, while they are in a position to do so.

"This may be matter for you to grapple with; strong protests have gone hence to the Colonial Office; but what have we to hope from a

quarter whence such a scheme could by any possibility have been devised? Let all England utter a voice that shall be heard hereon."

WALTER LAWRY.
General Superintendent of Wesleyan Missions in New Zealand, &c.

APPENDIX A.

APPENDIX.

APPENDIX

TO THE

NEW ZEALAND QUESTION

BEING THE

OPINIONS THEREUPON

OF

JOSEPH PHILLIMORE, ESQ., D.C.L.

AND

SHIRLEY F. WOOLMER, ESQ.,

OF THE MIDDLE TEMPLE,

BARRISTER-AT-LAW.

LONDON:

THOMAS CAUTLEY NEWBY, PUBLISHER,

72, MORTIMER ST., CAVENDISH SQ.

1848.

PREFATORY.

THE Opinions which follow were in reply to certain Queries propounded by the Aborigines' Protection Society, on behalf of the Natives of New Zealand, with a view to the establishment of a few leading points:

1st. In reference to their proprietary rights; as also to any others which, it was assumed, they might have reserved, under the Treaty of Waitangi:

2ndly. In reference to the rights of the British Crown, under the same Treaty: and

3rdly. In reference to the general principles of Inter-national Law, which regulate, or, in a measure, determine the conduct of a Civilized Nation, in its political intercourse with Native and independent Tribes.

LOUIS ALEXIS CHAMEROVZOW,

ASSISTANT-SECRETARY,

ABORIGINES' PROTECTION SOCIETY.

Camberwell, 1st. May, 1848.

THE NEW ZEALAND QUESTION.

OPINION OF JOSEPH PHILLIMORE, ESQ. D.C.L.

THE questions propounded in this Case are not free from intrinsic difficulty, and such difficulty is further enhanced by the voluminous and undigested materials with which they have (necessarily perhaps) been mixed up and encumbered – still, from the best consideration I have been able to apply to them, I have been led to conclusions which, I trust, are neither ambiguous nor obscure.

For reasons which will appear in the sequel, it does not seem essential that I should preface

my Opinion with definitions of any of the abstract points of law which have been mooted in the several documents laid before me, although it may be assistant to the elucidation of the subject, to advert in passing on to the main point (on which I conceive the solution of the primary question to hinge) to the possible modes by which Great Britain might have acquired a title to the possession and sovereignty of the Islands of New Zealand. Such a title, I apprehend, might have been acquired:

1st. By Conquest.

2nd. By Discovery followed up by occupation – or

3rd. By Treaty.

The Law of Nations acknowledges no more complete title than that of effectual and permanent conquest, but I can discover no fact in the present case which could have the effect of establishing a title of conquest.

Next as to title by discovery, or, as it has been termed, by an eminent Jurist, "le droit du premier occupant," discovery gives an inchoate right, and if discovery be followed by occupation, i.e., occupation "reellement et de fait," there can be no doubt but that such an

occupation would convey a title equally valid with that of conquest.

This point merits closer consideration, because I am inclined strongly to be of opinion that the English are to be considered as the first discoverers of the Islands of New Zealand, and that, consequently, by such discovery they acquired to themselves a primitive, or, as it were an inchoate right to the occupation and possession of the country.

But on the other hand, nothing can be clearer to my apprehension than that the Government of England not only abstained from the exercise of any such right, and from the due completion of the title which the early discoverers had acquired for the Crown, but, that, on the contrary, they virtually repudiated and abandoned any such title by elevating the Chiefs of New Zealand to the rank and condition of a sovereign power, and thus, by treating and acknowledging them, and their tribes, as component parts of a separate and independent State, they placed them on a known position in the great commonwealth of independent States.

For example. – The British Legislature, by successive Acts of Parliament, has declared

the Islands of New Zealand, "not to be within the King's dominions," "not to be subject to the Crown of England," or "to any other European State."

Again in 1831, William IV. recognized New Zealand as a substantive and independent State, which he announced to the world by a public and solemn declaration.

And in 1839 her present Majesty accredited a Minister to the native Chiefs of New Zealand, and invested him with full powers to negotiate and conclude a treaty with them.

Under this statement of facts, I am led to the conviction that Great Britain could not, in any Court of the Law of Nations, have a substantiated claim to the occupation of New Zealand, on the mere ground of discovery and possession.

In my judgment the claim of the British Nation to the Sovereignty over the Islands of New Zealand rests on compact; i. e. on a Treaty inscribed in the code of public law which was executed at Waitangi, on the 6th February 1840.

By this Treaty the Queen of England is invested with all the rights and powers of Sovereignty within the Islands of New Zealand,

she in return guaranteeing to the chiefs, and native tribes, their families, and all individuals belonging to them, the full, exclusive and undisturbed possession of their lands, estates, forests, fisheries, and other properties which they might possess collectively or individually, so long as they might wish or desire to retain them in their own possession, but conceding to the Queen the exclusive right of pre-emption over such lands as the proprietors might be disposed to alienate, and (subject to this restriction alone) the natives of New Zealand are invested with all the rights and privileges of British subjects.

Of the validity of this Treaty no one at all versed in the science of public law can entertain a doubt. It possesses all the ingredients which Writers on the Law of Nations deem essential to establish the validity of such a compact – "s'il n'y a point de vice dans la maniere en laquelle il a ete conclu," (to borrow the definition of Vattel,) "et pour cela on ne peut exiger autre chose qu'un pouvoir suffisant dans les parties contractantes et leur consentement mutuel suffisament declare." Liv. 2. c. 12. sec. 27.

It is laid deep in the unalterable foundation of natural law, that the party who promises, conveys a perfect right to the party to whom the promise is made, to compel the execution of that promise.

This principle is as applicable to States as it is to individuals, and if Great Britain were to recede from the obligations she has contracted by the signature of the treaty in question, she would justly expose herself to the imputation of being guilty of a breach of public faith, inasmuch as there is no principle of public law more universally received and acknowledged, than the perfect equality and entire independence of all distinct and separate States.

"Relative magnitude," says one of the greatest expounders of the Law of Nations, who has existed in our days "Relative magnitude (of States) creates no distinction of right. Relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbour – and any advantage seized on that ground is mere usurpation. This," (he adds) "is the great foundation of public law, which it mainly concerns the peace of

mankind, both in their public and private capacities, to preserve inviolate." "Le Louis, Adm. Rep. page 213."

On full consideration, therefore, I am clearly of opinion that the Treaty of Waitangi is of binding obligation on the two contracting parties, and that it is to be considered as the corner stone, on which all our relations, with the Islands of New Zealand, must be founded.

It is equally clear to me that there is nothing on the face of the treaty which requires interpretation; but if any interpretation of any seeming ambiguity should be required, all the rules applicable to construction would exact that it should be given in favor of the State making the concession, especially in a case where the practised intelligence and varied experience of the one contracting party is contrasted with the primitive simplicity and rude inexperience of the other. The British negotiator had the selection of his own terms, and it is according to the well-known principle of the Roman law "pactionem obscuram vel ambiguam iis nocere in quorum fuit potestate legem apertius condere." Dis. 2. lit. 14. de pactis.

So again the reservation (ample as it is in

terms) of lands, estates, forests, fisheries, and other properties is, I think, to be construed with every latitude of explanation which the ordinary acceptance and use of the words will admit, and I can discover no principle on which a known and well-defined 164 boundary should not be respected, nor any reason why property of what description soever, within the range of any such well-defined boundary, should be excluded from the privileges of the treaty, more than land which may be entirely enclosed in an actual state of cultivation.

On the other hand, it appears to me equally clear, that all property, which is without an Owner, and which may be considered as res nullius – and all bona vacantia, through the several Islands of New Zealand, has vested in the Queen in right of her Sovereignty, not because we are to assume (as has been suggested by some) that the inhabitants of Islands, so entirely separated from all intercourse with European States, were bound by the distinctions of allodial and feudal property, or that

they could be supposed to hold land by such tenures as we derive from our Gothic ancestors, but because it is in accordance with the general law and practise of Nations, that all property without an owner should vest in the Sovereign power of the State, and such Sovereign power, in conformity with the stipulations of the treaty in question, is the Queen of England.

My attention has been especially directed to that Clause in the Treaty of Waitangi which secures to the Queen of England the exclusive right of pre-emption over such lands as the proprietors may be disposed to alienate, and I am asked what is the meaning of the word "pre-emption."

The term "pre-emption" is of familiar occurrence in that system of jurisprudence which regulates the intercourse of independent States, and the experience of many years passed in the practice of the High Court of Admiralty in England, would have led me to have returned a prompt and unhesitating answer to the question thus put; but that the respect I felt due to one of the learned persons who decided the case of "The Queen v. Symonds," (Blue Book, C. page 66.,) and the

distrust I had of my own judgment, opposed as it is, in the present instance to his, caused me to pause and reconsider the question. Still the more I have done so, the more strongly I am led to the result, that the word "pre-emption" has a known and definite meaning – but I cannot consider that its legal import differs from its philological sense, or that any expounder of the Treaty of Waitangi has a right to assume that this term was casually or inadvertently introduced into that instrument. Indeed, I know of no more accurate definition of the term "pre-emption," than that which was given by Sir William Scott (afterwards Lord Stowell,) in the case of "The Haabet," 2 Robinsons Rep. page 182 – a right to purchase upon a reasonable compensation to the individual to whom the property belongs.

The true construction then I take to be, that the Crown has acquired a right to purchase the fee simple of all lands in New Zealand, which fall within the scope of the Treaty – in preference to, and exclusive of any other individual – but if the Crown should decline to purchase, I am at a loss to ascertain by what rule of law the native proprietor, to whom the

treaty has imparted all the rights and privileges of a British subject, can be barred from disposing of his property by sale to any one of his fellow-subjects.

In a case of this description, where the rights and obligations of the respective parties are secured and guaranteed by special compact, I hardly see how we are called upon to discuss the abstract indefeasible privilege of the Crown (to whatever extent it may prevail) to acquire for itself any territory which may be discovered or conquered by British subjects, because we are not here dealing with a newly-discovered, or newly-conquered country, but with a State capable of entering into diplomatic relations with Great Britain.

Thus far my observations have been exclusively confined to the treaty.

But my opinion is pressed for on points dehors the treaty.

I am asked whether the treaty is of binding obligation on all the chiefs and tribes of the several Islands which compose the Country of New Zealand?

Prima faciae, I should say that it was, and that, for obvious reasons of justice and policy, every endeavour should be made to establish

such to be the sound interpretation of the treaty.

The proclamation of Governor Hobson, himself a contracting party to the treaty, issued, within a few months after the date of it, to the inhabitants of the northern 165 Island is evidence that he considered it applicable to all the chiefs of the several Islands.

But if there really be independent chiefs and tribes, who are no parties to the treaty, who were never cited to Waitangi, and by no latitude of interpretation can be considered to have been represented at the National Congress, which was holden at that place, and who, moreover, have always refused to give in their adherence to that treaty – it assuredly may happen that the independent chiefs and tribes, thus circumstanced, may not be bound by the obligations of that treaty, and, consequently, may be entitled to distinct and separate considerations from those which apply to the other districts in these Islands.

If any such there be, it is clear, I think, that they ought to be permitted to continue in

the peaceful occupation and enjoyment of their respective properties.

It is asked, however, "How is their property to be defined?" "Are the lands and forests which they hold and occupy, but which they do not cultivate, entitled to fall within the range of such an appellation?" and further, "Are not the true criteria for deciding this point laid down in the writings of Dr. Arnold?"

In the first place, notwithstanding all the respect I entertain for Dr. Arnold, I cannot consider his opinion to be of overwhelming authority on a question of this nature.

Secondly. In the passages to which I have been referred, it was obviously no part of the intentions of that learned person to consider or discuss any abstract proposition of public law, and it is hardly fair (I say so with all deference) to stamp a statement which flows from him in the form and style of an historical narrative, with the authority of a deliberate and juridical decision.

If the course of Dr. Arnold's studies had led him to a more intimate acquaintance with the science of public law, and if he had

consulted the many disquisitions which the labours of Jurists have accumulated on this subject, it is very probable, I think, that his decision ex cathedra would have been very different from that which is to be inferred from the tenor of passages in his writings to which I have been referred.

It is obvious that if his doctrine were pushed to the full extent in the present instance, it might lead to usurpation and injustice, as it might be made use of to dispossess independent chiefs and native tribes from property occupied by them and their ancestors for successive generations, although they have hitherto neither bestowed-labor nor cultivation on their lands.

From the best consideration I have been able to apply to this branch of the case, I incline strongly to the opinion of the eminent persons who hold, that the right of property is the same in all men. That such right can neither be modified nor altered by difference of religion, nor by difference of customs and manners – and finally, that the law of Nature – the just and only true source of the Law of Nations – never conferred a right on

Christian Countries to wrest, forcibly, from their actual possessors, and to appropriate to themselves, lands and districts effectually and permanently occupied by savage Nations. – See Martens precis du droit des Gens. liv. 2. C. 2. c. 1. sn. 117. – and the notes in which most of the authorities on this question are referred.

JOSEPH PHILLIMORE.

Doctor's Commons,
23rd. of March, 1848.

[Page 16 is blank.]

OPINION OF

SHIRLEY F. WOOLMER, ESQ.

FROM the importance of the subject, and the wide range and variety of the questions proposed, it will be desirable, so far as possible, to ascertain some leading points to which such general principles of Law as may assist the enquiry, can be applied, and to which the various queries proposed may be referred, without attempting a separate answer to each; and from the peculiarity of the circumstances, the legal opinion to be offered must be received as it may be found to be in accordance with, and supported by, such general principles of Law.

The documents submitted, from which the facts of the case are to be collected, are the numerous papers relative to New Zealand which have been published by order of the Legislature, and a variety of other written and printed documents.

This Mass of materials I have examined, and the principal points for consideration appear to be the relative rights of the Crown of England and of the Natives of New Zealand, under the state of circumstances at present existing between the countries, in relation to the Territorial and the Proprietary rights to large portions of land in New Zealand, and particularly as to waste lands in that settlement.

The Islands of New Zealand are supposed to have been discovered as early as the 16th Century, but it was not until 1769 – 70 that Captain Cook took possession of them in the name of the Crown of England, with the customary formalities. 166

In the year 1787 it was deemed expedient by the English Government to

declare New Zealand to be a part of the settlement of New South Wales. 167

There are general laws adopted by European Nations, in reference to Countries which, from their not being part of the Ancient and recognized system of international polity, are called newly-discovered Countries, when found by Voyagers and travellers of different nations.

The law of Nations has recognised the capacity of acquiring the Sovereignty over another Nation, by certain given acts; and certain rules and principles are considered as the bases in accordance with which all civilized Nations not only are agreed to proceed, and to which they will conform in regard to each other, but which they will observe also in regard to the Inhabitants of such Countries as may be the subject of acquisition.

Thus the dominion or Sovereignty of a newly-discovered Country, may be acquired by the following modes: –
By Discovery and Occupation.
By Conquest.
By Cession.

The right by discovery only, without occupation,

is an imperfect right, being good as against third parties, but it confers no right as against the Natives. It is an inchoate right only, which is perfected by occupation. On this subject Vattel in the treatise on the law of Nations thus writes. 168

"All mankind have an equal right to the things that have not yet fallen into the possession of any one; and these things belong to the first possessor. When therefore a Nation finds a Country uninhabited and without a Master, it may lawfully take possession of it: and after it has sufficiently made known its will in this respect, it cannot be deprived of it by another."

"But it is questioned whether a Nation may thus appropriate to itself, by merely taking possession of a Country which it does not really occupy, and in this manner reserve to itself much more than it is able to people or cultivate. It is not difficult to determine that such a pretension would be absolutely contrary to the Law, and opposite to the views, of Nature, which appointing all the earth to supply the wants of man in general, gave to no Nation the

right of appropriating to itself a Country but for the use it makes of it, and not to hinder others from improving it. The law of nations then only acknowledges the property and sovereignty of a nation over uninhabited Countries of which they shall really and in fact take possession, in which they shall form settlements, or of which they shall make actual use." 169

The grant made by the Pope to King Ferdinand and Queen Isabella of Spain, of the new world discovered by Columbus – The Bull of Pope Nicholas giving the Empire of Guinea to the King of Portugal, and the commission of Queen Elizabeth to Sir Walter Raleigh, are illustrative of the powers claimed at those times by Christian Princes, in reference to Countries to be discovered, and of the authorities given by such Princes to those commissioned by them.

A question may be raised as to what are the rights which belong to uncivilized nations inhabiting large tracts of country, only small portions whereof are brought into use by them, or where erratic tribes pass from one region to another.

Some writers contend that the cultivation of the earth is an obligation placed by Nature on mankind, on failure of which those who will not cultivate it may be displaced by those who will.

Vattel appears to consider that the natives of such uncultivated Countries, cannot keep exclusively to themselves more of the soil than they have necessity for; and they are in condition to inhabit and cultivate; and that their fluctuating and transitory occupation of parts of immense regions, cannot be received as a true and legitimate taking possession; and he is therefore of opinion that the people of Europe, too straightened at home, finding a land of which the natives have no particular (that is individual or appropriated) need, and of which they make no actual and continual use, can legitimately occupy it and establish colonies therein. 170

In reply to this view it may be asked, ought not proofs to be required, by way of condition precedent, that the people of Europe were really too straightened at home, before a legitimate title to foreign lands in which there were

Aboriginal Inhabitants could be justly claimed?

The Islands of New Zealand were, as to some large portions, already occupied when they were discovered, and the Aborginal Inhabitants had therefore certain rights; and it is not merely because large tracts of land are found still unoccupied in uncivilized Countries, that they can for that reason be claimed by discovering Nations, although of European origin.

"If in a Country which has been occupied generally (en gros) there remains some portion which may not have been assigned to any person in particular, it should not for that reason be considered as vacant, for it belongs in all cases to him who is the first master of the Country, the people or the King. Such is in general the owner-ship of rivers, lakes, fish-ponds, forests, and rugged and uncultivated mountains. 171

"It is also unjust to appropriate to one's-self things which are in the posssession of another under the pretext of having discovered them, and that even when their possessor should be a wicked man or entertain false sentiments with

regard to the Divinity, or be naturally stupid; for one can only appropriate to one's-self, by right of discovery, that which belongs to nobody."

"When mankind first began to separate into many families, distinct dominions were doubtlessly settled by divisions."

"After this division, he is said originally to acquire a thing lying void and without a possessor, who happens to be the most early occupant of it; he who lays hold on such a thing before others, or gets the start of him in putting in his claim to it." 172

And the word "occupare," to occupy or possess, from which the term is derived, is in some cases used with the signification of "proevenire" to occupy or engage before, or to anticipate others.

It seems to be admitted by writers of authority on this subject, that the right of discovery alone, thus gives to the discovering nation, no more than a preferable right of occupation, to the exclusion of other nations who

might claim by a similar title; but as against the native occupants, such claims cannot affect their rights to their own land.

A right by occupation is therefore necessary to perfect a right by discovery, but may exist independently of it – and this right does not extend beyond those lands which the occupying nation shall actually use, and not to the appropriation of the lands which the Natives themselves occupy or enjoy.

If on the one side Vattel's view be adopted as to the rights of European nations, the converse of the proposition would certainly be true on the other; that the natives of such regions can justly retain to themselves all of the soil that they can occupy, or for which any use or necessity could exist in reference to their usages, wants, or method of life.

Amongst the Questions which arise from the relations between Great Britain and New Zealand, it would be important to examine what are the rights which the Crown of England acquired in reference to those Islands, by discovery and occupation; – and how far they have extended; – and whether they have been renounced as to all or any parts of the Islands; – and what are the legal consequences of any such re-

nunciation; – and if renounced, what rights have been acquired, or responsibilities incurred by subsequent acts; but it would require too elaborate and extensive an Examination, to reply to all these points; but consideration may readily be given to some of the prominent particulars.

It must be admitted, on the principles of law before stated, that certain rights were acquired by the British Crown in reference to the Islands of New Zealand, by discovery; and that the Crown assumed attributes of Sovereignty over those Islands when it included them among the Dependencies of the British Crown, and placed them within the Jurisdiction of the Government of New South Wales, which appears to have been done by an Order of Council, dated 6th December 1786; and the King's Warrant, dated the 3rd. April 1787. 173

It does not appear that the Crown at that time acquired the ownership or Dominion over the Island by any actual occupation; such occupation must be a formal Act of the Crown – some settlement must be formed under its auspices, or it must in some way be identified with

the taking of possession, in order to make it a Public Act – For the mere purchase or acquirement of certain lands by a few individual subjects of the Crown, is not a taking of possession of the Country on behalf of the Crown.

Further, no person or body of persons are by the law of England allowed to found a Colony without a license from the Crown, and therefore if any such e.g., the Missionaries, Whalers, &c., had purchased extensive tracts, founded a town, &c., these are individual acts only, and do not operate as a taking of possession by the discovering State.

Unless, therefore, the Crown, by some public act, had taken actual possession, accompanied by actual occupation of the Islands of New Zealand, it would not appear to have complied with the requisites laid down by Vattel, which would alone have perfected the right arising from discovery. That this doctrine is correct, further appears from Vattel who restricts the proprietary and sovereign rights of the discovering nation to "Those vacant Lands which it occupies really, and in fact." 174

It appears then that the Crown of England had, by virtue of discovery, acquired inchoate rights only, which had not been perfected by occupation, and that these inchoate rights extended over New Zealand, by which general name are designated the three islands forming the group.

Let us now examine whether these rights have been renounced either as to all or any part of the Islands.

The British Crown having formerly included New Zealand as part of its possessions, it appears that subsequently its independence has been acknowledged by several acts of Parliament; and on the 14th of June, 1832, King William IV., made a public and solemn declaration that New Zealand was a substantive and independent state. 175

In January, 1837, New Zealand was again formally acknowledged as independent; a Consul or Resident was sent thither by the British Government, and a National flag allowed.

In 1841, Her Majesty created New Zealand a Colony separate and independent of New South Wales.

Its independence has further been recognised by successive Colonial Ministers, in various documents, despatches and state papers. 176

What rights then had the Crown acquired between the discovery of the Islands and the recognition of their independence.

By discovery, as we have seen, the Crown acquired the right of pre-occupation, to the exclusion of other discoverers, provided actual occupation followed: a right of pre-occupation, I consider, not of all the lands in the country, but of all lands not appropriated and occupied by the natives. The Crown exercised this right go far as Sovereignty was concerned.

When the Crown declared New Zealand to be an independent state, the declaration was not

confined to any specified part, but the general term of "New Zealand," was employed.

It appears, however, that some still consider that the rights of the Crown – at least to some portions – are based on discovery; and especial reference has been made to the Southern or middle Island.

But the operation of the treaty of Waitangi over the middle or Southern island, (New Munster) would appear to have been recognised by the Crown in sanctioning the purchase of the Otakau, or Otago, district of the natives.

The recognition of the independence of New Zealand would appear, therefore, to be a renunciation of the rights of the Crown in New Zealand, so far as they might have then existed, and arising from mere discovery or temporary and imperfect occupation; unless kept in force by some other public act, for: rights acquired by possession cease among nations as among individuals, particularly by voluntary resignation, by cession, or by a total decay of the thing possessed. 177

And I find that a declaration of Sovereignty of the Crown of Britain, over certain parts of the Island, by right of discovery, was made on the 5th of June, 1840, which was after the treaty of Waitangi, and such declaration was doubtless made to keep alive the claim by discovery, if such portion should not come within the operation of the treaty by cession. 178

The position of circumstances thus arising, is probably without a precedent, and I do not find any precise doctrines referrable to it, in any of the writers on National Law.

The rights claimed by the Crown having been exercised thus far, do not appear, up to that time, to have received the recognition of the New Zealand people; the renunciation of such rights would therefore have no immediate effect as to the New Zealand nation. The New Zealanders, as a people, continued to be in the same condition in which they would have been had neither of these acts taken place; they were independent before, and they were recognised as independent by the English Government; but a different consequence might arise from the renunciation of its rights by the British Crown

as regards other nations; and accordingly, we find that the English Governments doubtless for important reasons, resolved to take decided steps, which should be recognised to be valid by all European nations, for effectually annexing the New Zealand Islands to the British Crown.

In 1839, Mr. Hobson was instructed to proceed to New Zealand for the purpose of obtaining, if possible, a cession from the Chiefs; but "the assumption of any authority beyond that attaching to a British Consulate, was strictly contingent upon the indispensable preliminary of the territorial cession having been obtained by amicable negotiation with, and free concurrence of, the native chiefs." 179

The result of Mr. Hobson's negotiations, was the treaty of Waitangi, dated the 6th Feby. 1840.

The execution of the treaty of Waitangi, introduces an entirely new state of circumstances. It seems unnecessary to enter upon the enquiry

whether this treaty was in every respect formally executed between sufficient contracting parties; its validity has been, and is now, distinctly admitted by eminent statesmen who have officially, or otherwise, been concerned with the affairs of New Zealand. 180

An important question however arises as to whether the treaty of Waitangi comprehends all the parts of New Zealand, or what will be the position and rights both of the Crown and of the natives as to those parts to which it may not extend, or of those tribes who are not parties to the treaty.

But whatever legal views may be entertained on this subject, it is clear that by the treaty, the Crown obtained certain rights either over the whole of the New Zealand Islands, or some considerable portions of them.

Such rights of the British Crown, whatever they may be, being thus acquired by cession, this cession being conditional, and the conditions being contained in the treaty of Waitangi,

enquiries are suggested as to the rights conferred, and the obligations imposed by that treaty upon the contracting parties, and as to what things are comprehended within its terms.

"The chiefs of the confederation of the united tribes of New Zealand, and the separate and independent chiefs who have not become members of the confederation, cede to Her Majesty the Queen of England, absolutely and without reservation "the rights and powers of Sovereignty which the said confederation or individual chiefs respectively exercise, or possess, or may be supposed to exercise or possess over their respective territories, as the sole sovereigns thereof." 181

"A nation," says Vattel, "may lawfully submit to a more powerful nation, on certain conditions upon which they shall come to an agreement, and the pact or treaty of submission will be afterwards the measure and the rule of the rights of each; for that which submits, resigning a right it possessed, and conveying it to

another, has an absolute power to make this conveyance upon what condition it pleases; "and if such be the legal construction in reference to the nation which cedes any rights, it is submitted also to be "a sound and important principle, that a Sovereign cannot depart from a charter by which, even although voluntary," any liberties or privileges are granted; a fortiori, where a cession is made by treaty, and rights and privileges are guaranteed in return, the articles of the treaty are sacred and inviolable, according to their true intent and meaning." 182

"And in every question which arises between the Sovereign and his Colonies respecting the Prerogative, the first consideration is the charter granted to the inhabitants." 183

By the second article of the treaty, "The Queen of England confirms and guarantees to

the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands, estates, forests, fisheries, and other properties which they may, collectively or individually, possess."

And by another article:

"The chiefs and tribes also yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate; and in consideration thereof, Her Majesty, the Queen of England, extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects."

Certain rights are thus acquired by the Crown, over all the Islands of New Zealand, or such portion as may be within the operation of the treaty.

The lands are those which "the chiefs and tribes of New Zealand, and the respective families and individuals thereof may, collectively or individually, possess;" or other lands in New Zealand, if such there be.

As to the rights of the Sovereign over lands in possession, or the territorial rights of the Crown, they are such as the Sovereign

exercises over all lands actually possessed by her subjects in other parts of the empire, and they are not here in question. But as to lands not in such possession, the subject is of much more importance to our enquiry.

The law of Nature (says Vattel) has destined the earth to mankind in general; yet not so but that nations or individuals, by occupation and use of particular portions, may acquire to such parts a proper and exclusive right. 184

The nation which shall first discover any new lands is, as we have seen, legally considered to have a preferable right of occupation over any other discovering nation, and such natural law also recognises the rights of the native occupants to retain their possessions. Now, if such natives be a body politic, there seems no reason why they should not be held to be the discoverers of the land, in close and immediate contiguity to the districts which they immediately inhabit and cultivate; and if they have complied with the requisite formulae to mark their intention, is there any just reason why they should not be as lawfully entitled to

possession of those countries as if they had come in ships from other parts of the world?

The law of England further restricts the right of occupation, for as the law of nations has restrained other nations, not being the discoverers, from occupying the lands of a newly-found country, the English law restrains the individuals of the British nation from the acquisition of lands in such countries, vesting such lands in the British crown. 185

The law of England also follows the law of Nature in recognizing a just title to the possession of their lands, in the natives of any such countries, so far as they really occupy and enjoy them, and will not exercise any of its powers to deprive them of their possessions, without their free consent and concurrence; but as to all unoccupied and waste lands, these are the demesne of the crown, and may be granted out – this right is a part of the prerogative royal, and the prerogative is an attribute of sovereignty; "and the attributes of the sovereign, which are inherent in and constitute his political capacity, prevail in every part of the territories subject to the British Crown, by whatever

peculiar or internal law they may be governed, and may, consequently, be exercised in the colonies, except as it may be abridged or restrained by grants or other concession to the inhabitants." 186

Such properties so vested in the crown, as lands which are waste, are such as are not cultivated – and which have no owner. 187

This prerogative the English government recognizes as a part of inter-national law, and, whilst acknowledging the right of discovery and occupation in other nations, recognizes therewith, necessarily, the right of those nations to the unoccupied lands in the discovered countries, leaving it to the civil law of each to determine in what person or body that right ultimately resides and by whom it is to be exercised.

I propose, from these observations, to suggest the consideration whether New Zealand, as a state, had not the same rights of sovereignty over the unoccupied lands in contiguity of lands occupied and extending throughout the Islands, that the crown of England claimed to have over these same lands during the

period in which it claimed New Zealand by the right of discovery.

Earl Grey, in his despatch to Governor Grey, dated December 23rd, 1846, writing of the districts stated as unoccupied, considers they were not claimed as the property of individuals, but as that of tribes, and that supposing this right to have been good, it is obvious that it was possessed in the way of sovereignty, and was, therefore, transferred with the sovereignty to the British Crown. 188

It is not, however, obvious that these districts claimed as the property of tribes and not as individuals, were possessed in the way of sovereignty, and were therefore transferred with the sovereignty to the British Crown. This statement proceeds upon the assumption that the possession by a number of individuals, pro indiviso, as by a tribe, is not the same thing as the possession by an individual. This, however, may not be the case. Puffendorff, 189 when treating upon the subject, proposes a case where a body of men jointly possess themselves

of a tract of land, and he says that "the dominion is the same, but that the possession by many is distinguished from possession by one, in that the former is called common, the latter proper; and that communion differs from property only in regard to the subject in which it is terminated and lodged, but not with regard to the manner or virtue of the dominion.

"The same thing may be possessed either in whole by one, or else by many without falling into a division, so that each person, according to his determinate share, shall have an equal right in it."

The enquiry will now arise as to what are the lands in New Zealand which are unoccupied in such a sense as to bring them within the operation of that part of the attributes of sovereignty which would vest them in the Crown; but before any solution of that question could be satisfactorily offered, precise facts as to the actual state of the occupancy and possession of lands in New Zealand must be collected, and some definite judgment first formed as to the operation of the treaty, whether

over the whole, or only over parts of New Zealand.

In Earl Grey's despatch, 190 which accompanied the Charter, his Lordship quotes the opinion of Dr. Arnold, which would restrict the rights of natives to the lands upon which they have bestowed labour, and which, consequently, implies by the converse that all lands upon which they have not expended labour should be considered as unoccupied. This despatch should be referred to, and its statements and doctrines carefully examined, and viewed in connexion with the instructions given by Lord Normanby to Captain Hobson, 191 when directing the proceedings which ended in the treaty of Waitangi. Lord Normanby, then Secretary for the Colonies, directed that he must purchase the waste land by fair and equal contracts, and Captain Hobson is enjoined that the natives must not even "be permitted to enter into any contracts in which they might be the ignorant and unintended authors of injuries to themselves. You will not, for instance, purchase from them any

territory, the retention of which by them would be essential or highly conducive to their own safety, comfort, or subsistence. The acquisition of land by the Crown must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves.

Lord Stanley, 192 in proposing the imposition of a land-tax of two-pence per acre, admits that his object was to induce a gradual confiscation of the waste lands, and that the tax was intended to apply to all lands.

Now, as the government would not tax lands belonging to itself, or induce a forfeiture of what was already its own – is not this an admission of the native rights over the soil?

This right of the natives to the soil under the treaty of Waitangi has been further recognized in a Despatch of Lord Normanby's, of August 14th, 1839, in which he writes of the New Zealanders as a "numerous and inoffensive people, whose title to the soil and to the sovereignty of New Zealand is indisputable, and has been solemnly recognized by the British Government."

Having thus stated some of the authorities in

reference to the claims of the New Zealanders to proprietary and possessory rights over the soil of New Zealand, I find from an examination of the later documents in the Books of Correspondence, a new position of the Question.

On the 1st July, 1847, the Bishop of New Zealand 193 addressed to the Governor, Captain Grey, a protest on the Question of the New Zealanders' rights to Land, which document should be examined.

This protest being transmitted to Earl Grey the Secretary for the Colonies, a reply was forwarded in a despatch to Governor Grey, dated Nov. 30th, 1847, which must also be perused.

In this despatch Earl Grey does not apply to the Case of New Zealand, the Doctrine laid down in his despatch of the 23rd December, 1846, to which reference has been made.

The last despatch states that as regards New Zealand the Doctrine of the expenditure of labour on Land is not necessary to give a proprietary or a possessory right to the Land.

That rights which have been formally recognized are not to be set aside because they are founded (or have been recognized) on a theory now deemed erroneous. His Lordship states his belief that "the right of the Crown cannot now be asserted to large tracts of waste lands which particular tribes have been taught to call their own." That all such rights are to be admitted and registered, but that another course is to be pursued as to all other Lands.

If it can be shewn on behalf of the Natives, as it is stated that it can be, that all the land is legally claimed either by Tribes or Individuals, the Question may be raised – What Lands then are there upon which the doctrine can be exercised? And to this position I would call the particular attention of the Advocates for the Aborigines.

If it can be maintained that the Natives of New Zealand are, under the circumstances of their position with Great Britain and under the treaty, entitled to the possessory right of the whole of the lands in their country, it may be right to meet a question which may be raised. How then is the Government to obtain possession when either the public service or public

policy may require extensive portions of the land of that country? and a solution of it will not be difficult.

The treaty secures to the Crown the right of pre-emption, and with that privilege assured, there would not be much difficulty in obtaining for fair recompence to the Natives, such lands as might be required; but if a public necessity existed, and it is only in such a case it would be necessary to adopt such a course, and if right of pre-emption could not be brought into operation by the unwillingness of the Natives to sell their lands, I am of opinion it might then be conceded that the Government, would, under proper legal forms, and arrangements for fair compensation to the Natives still being the basis of such a proceeding, require possession of any necessary portion of the Territory.

It is one of the conditions under which civil property is held in all Societies, that the owners may be forced to part with it to serve the necessities or even the convenience of the State. I admit this exception, but to this condition, another is inseparably annexed; the condition of equivalent and compensation from the public

to the private owner. All the great authorities concur in this point.

Puffendorff enforces the same principle with great strength of reasoning and many instances and examples of compensation.

Montesquieu confirms this position: "When the public has occasion for the property of a citizen it ought never to act by the rigour of political law, but in those cases by the civil law, which looks with the tenderness of a mother, upon each individual, as much as upon the whole community."

"If the political magistrate want to make any public building or new road he must accord compensation. The public is in this respect as a private party treating with a private party. It is enough that the public can compel the citizen to sell his inheritance, and that it takes from him that great privilege which he holds of the civil law, that he cannot be forced to alienate his property."

In reference to a question proposed in the Case, as to the nature of the tenure of land in New Zealand, it must be evident from the uncivilized character of the inhabitants and the manner of their occupation of their lands arising from their relations as Tribes subject to Chiefs,

and many of the Tribes probably wandering from one part of those lands to another, that no species of tenures analagous to those introduced by refined civilization into European States may exist. The nature of the tenure therefore will only be that which so imperfect an organization of their Society may require; but as to such lands as the Crown, by virtue of its prerogative, may acquire and grant out, such lands will be held in the nature of tenancies in common socage or freeholds.

In reply also to the question as to the sense in which the words of the Treaty are to be understood 194 I refer to the authorities before quoted, and to the opinion offered on the rule of construction generally. In this case, the New Zealanders being the ceding party, have ceded their lands in the sense of retaining the property they had when they became parties to the Treaty, and their sense ought to govern the interpretation.

On a general review of the facts connected with this important case, and of the principles of such law as I have found to be applicable, it appears to me that the following conclusions arise as to the main questions involved:

First. That the treaty of Waitangi must form the basis from which the rights and interests both of the Crown of England, and of the Natives of New Zealand must be ascertained.

Secondly. That by virtue of that treaty, the Sovereignty with all its attributes, over New Zealand, is vested in the Crown of England so far as the acts of the chiefs of the confederation of the united tribes of New Zealand and the separate and independent chiefs who have become parties to the treaty, bind, first themselves and all under their control, and also as being the majority of those in whom power is vested, or as the most powerful chiefs and tribes can bind all other inferior or independent tribes who have not yet become actual parties to the treaty.

Thirdly. That by the Common law of England and the High prerogatives of the Crown, all lands, whether as unoccupied or as waste, which are unowned or unclaimed by the chiefs and tribes of New Zealand and the respective families and individuals, are vested in the Crown as demesne lands.

The question as to such lands as belong to or which are claimed by tribes, or individuals of tribes not yet parties to, nor otherwise included in the treaty of Waitangi, and their rights as first occupants and owners of the soil, must not be considered as included, but would afford a subject for a separate investigation.

Fourthly. That "the chiefs and tribes of New Zealand and the respective families and individuals thereof, are entitled to the full and undisturbed possession of their lands, estates, forests, fisheries, and other properties which they may collectively or individually possess," in the most extensive meaning of those terms with reference to title, occupancy, possession or claim as understood by the natives themselves, and according to their usage, wants, and manner of life.

Fifthly. That the Crown in its charters, or the Legislature in the exercise of its wisdom, may require from the New Zealanders, particular accounts of the lands, estates, forests, fisheries and other properties whether possessed by them as tribes collectively, or as individuals, and also that proofs should be furnished, adapted to the nature of their titles, possession, occupancy, or

claim, but that such enquiries or legal investigations as to title, &c., cannot, without positive enactment, divest the natives of their rights under the treaty, construed upon such principles as those to which I have adverted.

I am aware that on a subject so extensive, ae well as important in its bearings, and so peculiar from the novel circumstances associated with it, different views of the application of principles of general Law may readily exist, and arguments may be adduced from the character of the natives as uncivilized, and other circumstances, by which other constructions than those I have suggested may be placed on the result of the transactions with the New Zealanders; but from the relative position of the contracting parties, it may also doubtless be hoped that the British Government and Legislature, will act, in reference to the inhabitants of New Zealand, with that care over their rights, and that consideration for their interests, which become a just and a powerful state, when it has taken under its protection the chiefs and tribes, the families and individuals of an intelligent though uncivilized race of men,

and contracted to impart to them "all the rights and privileges of British subjects."

If the Law does not clearly define the precise bounds on any points connected with their affairs, a paternal Legislature will give the Natives, untaught in that Science, the benefit of the most indulgent exposition of it in their favour; and attaching the natives of those extensive districts of the British Crown by the benefits which they receive and the justice with which they are treated; whilst the objects of the Government in the annexation of the new colony to the British Empire are affected, the happiness and lasting interests of a numerous portion of our new fellow-subjects will also be attained, and the final benefits, however delayed, will yet be long enduring, and prove the truth of those noble maxims of Statesmen now departed, when they maintained: 195

"That Justice is itself the great standing policy of civil society, and any eminent departure

from it, under any circumstances, lies under the suspicion of being no policy at all.

For "Justice is the paramount interest of all men and of all Commonwealths."

SHIRLEY F. WOOLMER.

No. 2, Serjeant's Inn, Temple.
London, 4th Feb. 1848.

THE END.

164 Limes agri positus litem ut diffeerveret arres.

165 The Island of New Ulster.

166 See Cook's Voyages for an account of the ceremonies on that occasion.

167 Correspondence with Sec. of State. Blue Book, 1840, page 67.

168 Vattel. Translation. Book 1. Chap. 18 Sn. 207. Ed. 1793. Ed. sed. vide orig.

169 Vide Leibnitii Codex Juvis Gent. Diplomat: 203.

170 Vattel Book 1. Chap 18. Sec. 209.

171 Vide Grotius Book 2. Chap. 2 Sec. 9.

172 Acquisition primitive. Grotius B. 2 Cap. 3 Droit du premier Occupant.
Vossu Etym.

173 Vide Blue Book, 1840, P. 67. Also Clark on Colonial Law. Pa. 600.

174 Pays Vides. Vattel, S. 208.

175 Blue Book, 1840, page 69.

176 See Hansard. Parl. Debates. Vol. 81., Pages 683, 695.
See 57 Geo. III., Cap. 53.
4th Geo. IV., Cap. 96. 9th Geo. IV., Cap 82.
Letter of Viscount Goderich, Secretary of State, in reply to the address of the New Zealand Chiefs. 14th June, 1832. Blue Book, 1840, p. 7.

177 Von Marten's. Compendium of the Law of Nations, 353.

178 Blue Book, 1841, page, 112.

179 Treasury minutes, June 1839, August 14th, 1839. Blue Book, p. 36. Instructions to Captain Hobson. Hansard's Parly Debates, Vol. 8l, p. 869.

180 See Parly. Reports. April 1844, p. 5.

181 Vide Treaty of Waitangi.

182 Vattel, Sec., 193.

183 Chitty on the Prerogatives of the Crown, p. 25.
Ib., p., 28, See. also judgment of Lord Mansfield Campbell, v. Hall. Cowper's Reps. p. 208.
Chitty. Prerogs., p. 32.

184 Stephen's Blackst. Vol. I. – 42.

185 Judges Chapman and Martin; Regina v. Symons.

186 Chitty on the Prerogatives of the Crown, p. 25-32.

187 Domat by Strahan. Ed. 1722, p. 367.

188 Blue Book, 1847 – p. 64, p. 69.

189 Puffendorff, Bk. IV., Chap. IV., Sec. 4.

190 Blue Book, 1847, p. 64.

191 Blue Book, 1840, p. 36.

192 Vide Par. Papers on New Zealand – 1844.

193 The Bishop of New Zealand's protest, July 1st, 1847, Blue Book C. 82. Earl Grey's despatch referring thereto. Nov. 30th, 1847, Blue Book C. 82.

194 Vattel B. 1, Cap. 16, p. 86.

195 Sir James Mackintosh's Discourse on the Study of Law, p. 88. Burke's Works, Vol. 3. p. 307.

APPENDIX.

APPENDIX B.

CONCERNING

THE SETTLEMENT OF NELSON,

NEW ZEALAND.

A FEW PLAIN FACTS

ADDRESSED TO

PURCHASERS OF LAND.

COMPRISING THE

PETITION OF THE NELSON SETTLERS,

TO

THE HOUSE OF COMMONS.

LONDON:

T. C. NEWBY, 72, MORTIMER STREET,

CAVENDISH SQUARE.

1848.

[Page two is blank.]

A FEW PLAIN FACTS

CONCERNING THE SETTLEMENT OF NELSON, NEW ZEALAND. 196

In the prospectus of the proposed settlement, published in 1840, to induce persons to buy land of them, the Directors of the New Zealand Company undertake, that the best remaining site in New Zealand shall be selected for the settlement of Nelson.

The New Zealand Company had then no authority to make such an unlimited selection – consequently in this respect they received money of the land purchasers under erroneous representations. – (Vide 53 D., No. 40.)

The selection of a site was entrusted by the directors to the resident agent, and to the chief surveyor, who sailed from London in the Whitby and Will Watch in 1841.

On their arrival at Wellington, New Zealand, (Sept. 1841), they met there the Governor, Captain Hobson, R.N.

The principal agent of the New Zealand Company applied to the governor to point out a district suitable for the proposed settlement. – (Vide 59 D., No. 44.)

The governor offered for the site of Nelson, three Districts, at Maoranghi, on the river Thames, or on the river Waipa, he having permission from Lord J. Russell to give the New Zealand Company an extension of their previous limited field of selection. – (Vide 6l D. No. 45, and 55 D. No. 42.)

The New Zealand Company's agent demanded of the governor to form the settlement of Nelson, in the middle island. – (D. No. 46.)

The New Zealand Company's agents, in a personal interview with the governor, specified Port Cooper, Middle Isle, as the site which they had determined on for the settlement.

The Governor refused to give the agents of the New Zealand Company permission to form the settlement at Port Cooper, or in the Middle Island. – (D. No. 47.)

The Resident Agent of the New Zealand Company, without examining the Districts offered by the Governor, or any other, proceeded to form the settlement of Nelson on the shores of Blind Bay, although warned by the Governor that the lands there, and in the vicinity, were claimed by other parties. – (D. No. 47.)

The Chief Surveyor explored the land from the shores of Blind Bay, and reported to the agent of the New Zealand Company (Captain Wakefield) that the quantity and quality of land requisite for the settlement, could not be there obtained, and requested to be allowed to explore New Zealand for a suitable site. – (Vide First Report, On Land.)

The agent of the New Zealand Company, in reply, ordered the chief surveyor to execute there the survey.

The coast line of Blind Bay is about eighty miles, and from its shores the accessible land, available in point of level, was about 70,000 acres, of which, in respect of quality, not more than 20,000 acres were suitable.

Two hundred thousand acres of fertile land was required for the settlement.

The chief surveyor then explored and surveyed the land on Massacre Bay. These lands other persons claimed to have purchased previously to the alleged purchase of the New Zealand Company. – (Third Report, on Lands.)

The natives residing in the district asserted that the land had not been sold by them to the New Zealand Company; and but for their Christian profession, they would probably have forcibly prevented the survey. They forbade and endeavoured to prevent the removal from their land to Nelson of coal and limestone. – (Third Report, on Lands.)

The lands on Massac Bay, available in point of level, both good and bad in quality, proved wholly inadequate to complete the settlement.

The chief surveyor then explored the Wairau Plain, a district on the shores of Cloudy Bay, about 100 miles east of Nelson's Town, and opposite to that of Wellington. – (Fourth Report, on Lands.)

Native chiefs from the Northern Island, and also chiefs resident at Cloudy Bay (Middle Isle,) visited Nelson Town, and warned the agent of the New Zealand Company not to survey the Wairau, because it had not been sold to the New Zealand Company.

The Chief Surveyor was directed to commence the survey of the Wairau. The resident natives professing Christianity remonstrated, but abstained from maintaining their right by force.

A body of armed natives, (not professing Christianity) crossed from the Northern Island, and stopped the survey.

The agent of the New Zealand Company made an unsuccessful attempt to arrest the native chiefs, who had interrupted the survey of the Wairau – and with many others was there killed.

The chief surveyor received notice from the government not to enter the Wairau until the claim of the New Zealand Company to it had been investigated and established.

In 1846, the Wairau and other lands on Cloudy Bay were purchased of the natives by Governor Grey, which fact establishes the native right to them in 1843.

The natives had requested that the survey might be deferred until the Land Commissioner (Mr. Spain) had investigated the New Zealand Company's claim.

The agent of the New Zealand Company (following his instructions), refused in this case, as he had in every other, to acknowledge the right of the Land Commissioner to investigate the land claims of the New Zealand Company. – 35(E. – E. No. 21, and C. No. 52.)

Had the survey of the Wairau been completed in 1843, parties who had purchased of the New Zealand Company an allotment of 201 acres in the settlement of Nelson, would have had that quantity offered to them for selection, but in respect of quality the greater part would not have been worth having for the object for which they were induced to purchase it.

At present, in 1848, the purchasers of land have only received 51 acres, for the most part inferior; and the remainder of the allotment can only be obtained in remote districts, (as Massacre and Cloudy Bays,) difficult of access, and not available without the establishment of other towns and ports, not contemplated in the scheme of the settlement.

The purchasers of land in the Settlement of Nelson have no title in 1848. Governor Hobson, in 1841, offered the New

Zealand Company the choice of separate districts, with a title from the government; and gave his authorities for believing them to be suitable districts for the requirements of the settlement of Nelson. – (65 D. – D. No. 48, vide D. No. 32.)

Early in 1844 the completion of the survey of the Wairau being prohibited, the chief surveyor resigned his appointment for the settlement of Nelson.

Subsequently he undertook to explore the Middle Island, and select for the New Zealand Company a suitable site for a settlement.

He examined the district at Port Cooper, and found that it would have been as unsuitable for the requirements of the scheme of Nelson Settlement, as is the district of Blind Bay; and also that it was wholly inadequate for those of the proposed settlement of New Edinburgh. – (Vide Report on Land, June 1844.)

Proceeding with the journey of exploration, he discovered and obtained for the New Zealand Company a very suitable district, south of the Harbour of Otakau, and found also a district north of the Harbour of Otakau, very preferable to any district which the New Zealand Company had elsewhere desired to appropriate in its previous attempts to form settlements in New Zealand.

The New Zealand Company placed the settlement of Nelson at Blind Bay, without the sanction of the governor or of the natives, in a district utterly unfit for the settlement, and consequently could not give to the purchasers either the requisite land, or a title.

The New Zealand Company might have delivered suitable land, with a title, and formed the settlement elsewhere, with the sanction of the governor; or the New Zealand Company might have acquired from the natives, without the sanction of the governor, a district suitable for the settlement (as that

south of Otakau), and thus, except in regard to title, have immediately fulfilled their covenant with the land purchasers.

But they placed the settlement of Nelson so as to best sustain the prior and equally worthless settlement of Wellington, and refused to examine those districts pointed out by the governor, Captain Hobson, R.N., and by their own acts and design, not by that of the governor, the land commissioners, or the home government, they are unable to fulfil their engagements to the land purchasers.

Up to 1848, the New Zealand Company have failed to deliver the land for which they received the purchase money in 1841, and the district in which they attempted to form the settlement of Nelson, will not afford, including the whole southern shores of Cook's Straits, Blind Bay, and Massacre Bay, that is, from Cape Farewell to Cape Campbell, the requisite quantity of suitable land.

The New Zealand Company received the purchase money at the rate of 30s. an acre, not for Land only, but in trust for other specified objects which the New Zealand Company undertook to fulfil, and which are unfulfilled. – (Vide Prospectus, and 49 C. No. 32.)

The amount expended by the New Zealand Company in emigration, cannot be charged to the Trust funds created by the land purshasers, because the New Zealand Company sent out more than 800 labourers to Nelson, whilst the number and capital of the emigrant purchasers was inadequate to the employment of 200, and thus the New Zealand Company had to maintain an excessive number of labourers to prevent their starvation. – (C. No. 21.)

Many of the emigrants left the settlement for Valparaiso, Van Dieman's Land and Australia, or for other parts of New Zealand. To prevent this re-migration, and also to escape from the burthen of their maintenance, the New Zealand Com-

pany induced as many as possible to become cottiers, and this in direct violation of the distinguishing feature of the scheme of their settlement, and of the inducement for which the New Zealand Company had invited the public to purchase land: viz. – Its profitable occupation under their system.

The emigrant labourers having a claim on the New Zealand Company for maintenance, received a rate of wages, with which they were discontented, without performing any adequate labour; and at the same time would not work for the resident proprietors for any reasonable rate of wages.

The amount expended in the establishment of the settlement, or in the survey of lands, cannot be charged to the trust funds, as no selection of a site was made, and the land surveyed was for the most part unsuitable.

The amount expended in wages, was not expended on behalf of the public works requisite for establishing the settlement, for from June 1842, and subsequently to the suspension of the New Zealand Company in 1844, the majority of the labourers worked almost as little as they pleased, or required employment to be provided in the vicinity of the land, which on that condition they consented to occupy as cottiers, to the ruin of the land purchasers, who with hired labour cannot there compete with them in the cultivation of land.

The bridges made by these labourers were all soon washed away by floods. The New Zealand Company did not find tools requisite for constructing suitable bridges, and would not allow the labourers who procured carpenters' tools any remuneration for using them. Thus the labourers were paid not for making bridges of a construction approved by the engineer and surveyor of the settlement, but because they had a claim on the New Zealand Company, for employment and maintenance.

In respect to religious endowments and education the trust is unfulfilled; a large sum of money given to one sect (the

episcopal) cannot be charged to the trust fund, being in violation of that impartiality which the New Zealand Company had promised. – (Vide Prospectus, also 28 G. – G. 1. 2.)

The urgent and immediate necessities of the emigrants in respect to education, the New Zealand Company has neglected, and disregarded the memorial addressed to them on the subject early in 1842. – (Vide Nelson Examiner.)

The New Zealand Company not having fulfilled any of its engagements with the parties who purchased land, and having involved in distress and difficulties most of the emigrant proprietors, has furnished to other parties in England, some of them directors of the New Zealand Company, large sums of money. – (Vide 24th Report, Promissory Notes.)

The New Zealand Company represented to the government that it was unable to fulfil its engagements, and received assistance from the government, when without fulfilling its engagements, or making reparation to the injured parties, a large sum of money is appropriated to the remuneration of the directors, for past years of continued losses, their original claim for remuneration being founded on the supposed prosperity and profits of the New Zealand Company. – (Vide 24th Report – Expenditure, and Motion of Mr. A. Currie, in 1842.)

In order to induce parties to purchase land in New Zealand of the New Zealand Company, a description of the country was published for or by it, in the name of its then secretary, Mr. John Ward, in which, as in the pages of a periodical, called the New Zealand Journal, the Islands were represented to afford great advantages in point of fertility, and in other respects as a field of colonization. – (Vide also C. No. 21.)

In September, 1841, or earlier, the New Zealand Company received from its principal agent in the colony information of the great difficulty of obtaining, in New Zealand, land suitable for the requirements of the projected settlements, owing

to the mountainous and rugged features of the country, and because the heavily timbered land was an obstacle to its profitable occupation – (39 C. – C. No. 30.)

In April, 1842, the New Zealand Company made use of this information to endeavour to obtain from the government land for itself on more advantageous terms.

Whilst in the interim and subsequently the public were kept in ignorance of the facts, and bought land on the faith of the accuracy of the early representations of the New Zealand Company.

The true causes of the failure of the New Zealand Company and of the ruin in which it involved the colonists, are not stated in the letter of Mr. Somes to Lord Stanley, dated February, 1844. The Districts which the New Zealand Company had obtained up to that date, did not afford land (that of Taranaki, New Plymouth, excepted) which could be profitably occupied – and for the most part the land was so bad that the cultivation of it was certain ruin. – (A. No. 1, and Petition to Parliament presented by B. Hawes, Esq. M.P. from Nelson colonists, 1845.)

In each of its settlements the New Zealand Company had failed to induce proprietors of land, with capital adequate to employ labour, to become residents and colonists. – (C. No. 21.)

The system of sale, selection, survey, and distribution of land, in sections of an allotment, was alone fatal to success – and kept the unfortunate colonist without land, until the little capital which remained to him after the purchase of the land, was absorbed in the expenses of his maintenance, whilst waiting for the discovery, survey, and delivery of the land.

The writer would maintain that those who have purchased land from the New Zealand Company, and others who have been induced to proceed to New Zealand, or otherwise have been deceived and injured by it in its service as surveyors

and contractors, are the parties really entitled to reparation and compensation.

And that the government should not aid – but restrain the New Zealand Company, because it is great wickedness and cruelty (and by the New Zealand Company confessedly incompatible with the dignity of a government,) to induce persons of small capital to buy land which they have not seen – or to induce such, if unaccustomed to manual labour, to emigrate to New Zealand, where they cannot compete with the emigrant labourers who have become cottiers, or with the natives in the cultivation of land.

The petition of the injured and distressed resident Proprietors of Nelson, presented by B. Hawes, M.P. Esq. to the House of Commons, February, 1847, obtained no attention, and no redress. But the writer believes that the purchasers of land, who have fortunately not emigrated, can, by union and concert, abtain compensation for themselves, and for the injured colonists.

London. 2lst July 1848.

PETITION OF THE NELSON SETTLERS,

Presented by B. HAWES, ESQ. M.P.,

TO THE

House of Commons, 8 – 9 February, 1847.

The humble Petition of the undersigned Owners of Land and Agents of Absentee Proprietors in the settlement of Nelson, New Zealand,

SHEWETH,

That your Petitioners purchased land from the New Zealand Company, the great majority of them so long ago as the year 1841, for which they paid £300 for 201 acres.

That they did so, relying upon the high character and position of the directors of the New Zealand Company, and upon the faith of certain letters sanctioned by them, in which it was stated that the Company possessed the right of selecting land in any part of the colony, and that a body of capitalists desirous to emigrate to New Zealand had applied to the Company to form a new settlement. These letters are published in the parliamentary papers upon New Zealand for the year 1841.

That it was proved that the New Zealand Company did not possess the right of selection assumed by it, by the fact of Governor Hobson refusing to allow it to form the settlement at Port Cooper as it desired to do.

And that your Petitioners have since had reason to believe

that no body of capitalists desirous to emigrate, such as that alluded to, ever had any existence.

That your Petitioners bought their land in accordance with certain terms for purchase, published at the time by the New Zealand Company, and which will be found in the same volume of parliamentary papers. By these terms for purchase, the Company undertook to form a settlement, which should consist of 221,100 acres, the site of which it is stated shall be the best that may be available at the time of the selection being made, and that the position with reference to Port Nicholson and the rest of New Zealand shall be such that the land may reasonably be expected to advance in value with the utmost rapidity. The company by the same terms for purchase pledged itself to appropriate the purchase monies of the land offered for sale, amounting in all to £300,000, in the following manner, viz.: –

£150,000 to the exclusive purpose of emigration to this particular settlement:

£50,000 to defray the Company's expenses in selecting the site and establishing the settlement; any surplus of this fund to be applied to the public purposes next mentioned:

£50,000 to public purposes, for rendering the settlement commodious and attractive; as such purposes, it is intended to apply £15,000 to religious uses and endowments, for colonists of all denominations; £15,000 to the establishment of a college in the settlement; and £20,000 towards the encouragement of steam navigation, for the benefit of the settlement by way of bounty:

£50,000 to the Company for its expenses and profit on the use of its capital:

£300,000 Total.

That the site chosen for the settlement has been found to be wholly inadequate to the fulfilment of the Company's liabilities, nor can the just claims of the purchasers be satisfied, unless an equitable adjustment be effected by a remodelling of the original scheme, or by compensation.

That up to the present times only 51 acres have been offered for selection out of each allotment of 201 acres, which your Petitioners paid for so long ago, and that no title has been obtained to any part of the land.

That of the land thus distributed, one half at the lowest calculation is utterly worthless, and without any prospect of ever acquiring value.

That in consequence of these circumstances your Petitioners have sustained much loss and injury, and are not placed in that situation for the exercise of their industry which they had a right to expect.

That the New Zealand Company, although under contract to expend the public funds of this settlement in the stipulated manner above mentioned, although calling itself the trustee for the purchase money of the land in the settlement (see parliamentary papers), and although at the present time it admits, by its 17th Report, a liability to Nelson of £57,000, did in the month of June, 1844, suddenly and without warning cease all expenditure in the settlement, throwing a body of 300 labourers out of employment, causing thereby the greatest insecurity and much suffering from destitution, nor has it from that date up to the present time expended any money in fulfilment of its engagements.

That the New Zealand Company has lately communicated to the colonists some regulations for the disposal of lands in the settlement of Nelson, until further notice, which appear to your Petitioners unjust and injurious, and have produced a very general apprehension that it is not the intention of the Company

to fulfil its contracts or make any compensation to its purchasers. That no legal redress can be obtained in this colony against the New Zealand Company, or its agents, while it is next to impossible for most of your Petitioners to have recourse to the courts of law in England.

Your Petitioners therefore pray that it will please your honourable House to pass an Act enabling your Petitioners to obtain legal redress in the colony of New Zealand, by suing the principal agent or other officer of the Company, or to take such other measures as to your honourable House may seem most fit and expedient to forward the views of your Petitioners.

And your Petitioners will ever pray.

C. A. DILLON.
D. MONRO.
DONALD SINCLAIR.
HUGH MARTIN.

&c. &c. &c.

196 N.B. The References annexed to the following statement are chiefly to "Documents appended to the Twelfth Report of the Directors of the New Zealand Company.

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