1866 - Busby, J. Our Colonial Empire and the Case of New Zealand - PART SECOND. THE LAND QUESTION.

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  1866 - Busby, J. Our Colonial Empire and the Case of New Zealand - PART SECOND. THE LAND QUESTION.
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IN the preceding notices of the Constitution and political transactions of the New Zealand Colonies, little allusion was made to the land question, the original occasion of all the misgovernment, and the consequent deplorable results which have afflicted those colonies. The subject was thought worthy of a separate treatment. The facts in relation to it are of such a character that they can only be expected to obtain credence, so far as they are proved by public documents of an official and authentic character. If it be impossible to prove that under an upright Administration, which respected law and right, no revolt of the Maories would have been thought of, it is believed that the following narrative will exhibit such a violation of the plainest principles and instincts of justice, on the part of those who were entrusted with the powers of legislation and administration in New Zealand, as to make it appear that, in opposing a Government capable of acting in such a manner, the Maories were actuated by the instinct of self-preservation.

In one of those revelations which it has become the fashion for our statesmen to make at public or social meetings, we were informed by Mr. Chichester Fortescue, M. P., one of the Under-Secretaries of State for the Colonies, that "the war (in New Zealand) has not arisen from any greed or covetousness with respect to land on the part of the colonists of New Zealand, but from the incurable suspicion which unfortunately exists on the part of the native race against the Europeans who have gone to New Zealand. It is very difficult," he says, "to cure such a suspicion as that." From the perusal of the following narrative a judgment may be formed, whether the natives had or had not good grounds for their incurable suspicion.

On the 6th February, 1840, the Treaty of Waitangi was negotiated by Captain Hobson, of the Royal Navy, acting under the instructions of the Marquis of Normanby, Her Majesty's Principal Secretary of State for the Colonies, on the behalf

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of Her Majesty, and the principal chiefs and heads of the powerful tribes of the Ngapuhis, and of other natives in the northern parts of New Zealand, in a public meeting numerously attended by British settlers as well as by Maories. The vast majority of the tribes throughout New Zealand subsequently became parties to the treaty, through the instrumentality of the missionaries settled amongst them, the number of chiefs and heads of tribes who signed it being 582; and it may be truly said that no national question was ever submitted to the suffrages of a people in which so vast a majority of those who were entitled to express those suffrages concurred, the chiefs who signed expressing the decision of their respective tribes.

It was acknowledged by Captain Hobson in letters addressed to the local secretary of the Church of England Missionary Society, and to the late British Resident, respectively, that he was indebted for the success of his mission to their aid and influence with the native chiefs. To the late Rev. Richard Davis Captain Hobson addressed the following letter, dated May 20, 1840:--

Sir, --The period having arrived for proclaiming the sovereign authority of Her Majesty over these islands, it accords no less with my public duty than it gratifies my personal feelings to acknowledge, in the most ample manner, the efficient and valuable support I have received from the resident members of the Church Missionary Society in carrying into effect with the native chiefs the views and objects of Her Majesty's Government. As the official organ of that body, I beg you will accept and convey to every member of the mission in New Zealand my cordial and hearty thanks for the very zealous and effective assistance they have rendered me in the execution of my duty.

(Signed) WILLIAM HOBSON, Lieutenant-Governor.

To Mr. Busby, the late British Resident then at Sydney, Captain Hobson wrote as follows:--

Government House, Russel, Sept. 1, 1840.

Sir, --In acknowledging the receipt of your communication of the 28th July, it affords me much pleasure in being able to bear testimony to the very valuable assistance that I derived from your influence with the native chiefs in enabling me to carry into effect the views of Her Majesty's Government on my arrival in these islands.

I beg further to add that through your disinterested and unbiassed advice and to your personal exertions I may chiefly ascribe the ready adherence of the chiefs and other natives to the treaty of Waitangi; and I feel it but due to you to state that without your aid in furthering the objects of the commission with which I was charged by Her Majesty's Government, I should have experienced

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much difficulty in reconciling the minds of the natives, as well as of the Europeans who have located themselves in these islands, to the changes I contemplated carrying into effect. --I have, &c.,

(Signed) W. HOBSON, Lieutenant-Governor.

It appears of importance to call attention to these letters, because the parties to whom they were addressed were the chief sufferers, as will hereafter appear, under the oppressive measures which inaugurated the establishment of British government in New Zealand, and the treatment they met with first awoke the distrust of the natives. The Treaty of Waitangi has been severely criticised on various grounds. It has been asserted that the chiefs did not possess sufficient intelligence to understand its provisions, and were, moreover, not competent parties to such a contract--as not possessing the rights of sovereignty they professed to convey. On these grounds it was urged by the New Zealand Company that it should be considered in no other light than as "a praiseworthy device to amuse savages for the time." It was alleged that the sovereignty of Great Britain had been proclaimed by Captain Cook, who took possession of the islands in the customary form by right of discovery, and that Governor Macquarie, of New South Wales, had on two occasions exercised the rights of sovereignty by appointing magistrates to keep the peace in New Zealand, as being within his jurisdiction. In reply to these representations, which were urged with great force upon the Government by the New Zealand Company and by petition to Parliament from a number of merchants in London, representing the necessity of maintaining the sovereignty of Great Britain, in order to prevent its being taken possession of by France, Lord John Russell showed "that the British Statute-book has in the present century, in three distinct enactments, declared that New Zealand is not a part of the British dominions; and secondly, that King William IV. made the most public, solemn, and authentic declaration which it was possible to make, that New Zealand was a substantive and independent State." 1 To the suggestion that the treaty, when it proved inconvenient to the New Zealand Company, should be treated as a "mere device to amuse savages for the time," Lord Stanley made the following reply:--

"Lord Stanley is not prepared, as Her Majesty's Secretary

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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."

But while the Government has invariably maintained the validity of the treaty, and the binding character of its provisions, it seems to have been generally taken for granted that it was an injudicious and unnecessary step, that the sovereignty might have been assumed without it, and that its consequences have been injurious. In the celebrated debate on New Zealand, in June 1845, which occupied the House of Commons, to the exclusion of all other business, for three nights, on each night till a very late hour, Sir Robert Peel admitted that, in acknowledging New Zealand as a sovereign and independent State, they were wrong, and that "it would have been much better if we had claimed the right of New Zealand upon the ground of discovery than to hold it by mere cession." "I don't," said he, "hesitate to say that the Treaty of Waitangi has been a most unwise one even for the natives; I think it would have been a much better course for us to have asserted the right of sovereignty on the ground of discovery, than to have accepted that sovereignty from the chiefs, and to have negotiated with them for the sale of the lands." This was the language of Sir R. Peel when pressed by the power of the New Zealand Company, whose influence, under the conduct of Mr. E. G. Wakefield, had become so great as to shake his Administration. But it never appears to have occurred to Sir R. Peel, or to any of the administrators of the Government at home, that something more was necessary than a mere assertion of sovereignty--that the natives were a warlike race, who had never been known to submit to any encroachment on what they considered to be their rights; and that the alternative lay between a voluntary acquiescence in the establishment of the British Government in New Zealand, or its conquest and possession by a military force. With what determination the natives would have resisted the forcible assumption of the sovereignty, may now be understood,

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in the light of subsequent events--the rebellion of Heke in the North, the Wairau Massacre, and the war lately raging in the neighbourhood of Auckland, and still continuing to rage in other parts of the North Island.

It has also been maintained, and this was formally insisted upon by the Report of a Committee of the House of Commons in 1844, that "the acknowledgment of a right of property on the part of the natives in all wild land, after the assumption of the sovereignty by Her Majesty, was not essential to the true construction of the treaty." There can be only one true construction of the treaty; namely, the sense in which it was understood by the parties by whom it was negotiated at the time. Now there is not one of the parties to whose influence the Government was indebted for the adhesion of the chiefs, who did not understand that, in guaranteeing the tribal and individual rights of the natives to their possessions, that guarantee extended to the whole territory of the Northern Island, every part of which was claimed by one tribe or another; and that in no other sense would it have been of any avail to propose the treaty to the natives. They would have scouted any proposition of a less extensive character with the utmost indignation. And, knowing their feelings upon the subject, there is probably not one of those who were employed by the Government in the negotiation of the treaty who would have ventured to make any proposition to them inconsistent with a full acknowledgment of the right of the natives to the whole island.

Another exception, but of a different character, has been taken to the wording of the treaty. It has been boldly asserted that the "right of pre-emption" merely secured to the, Queen the first offer, and that if the Queen's agents refused any land upon the terms on which it was offered by the natives, they were entitled, by the terms of the treaty, to sell it to any one else. This doctrine has been maintained by parties who were anxious to obtain land on better terms than by a repurchase from the Government. But the term "pre-emption" was used in its technical sense--the sense in which it has been always used in relation to the aboriginal title to land, both in the British American Colonies and in the United States, and not in the literal sense of its etymology. And this was well understood by the translators of the treaty into the Maori language. The work of translation was not that of one individual, but the joint work of some of the best Maori scholars. It was undertaken with a due sense of its importance; and no Maori would ever understand it in any other sense than as an absolute

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restriction upon the right of sale to any one except the agents of the Queen. Indeed, in the sense contended for, it would have been a mere mockery, as the natives could always have evaded the restriction by making such an offer as it would have been impossible to accept. Another objection, it may be as well to notice here, though it is rather to the terms of purchase than to the conditions of the treaty. It has been urged by very high authorities that the natives are treated with injustice by not receiving the value of their lands in the market; that the agency of the Government ought only to be employed in preventing those disputes, which are the consequence of the want of any law to determine and specify what constitutes tribal or individual title to any particular territory or plot of land.

Now it must be admitted that the natives were not informed that it was intended to make the resale of land purchased from them the means of raising a fund to settle the country with British emigrants. Captain Hobson's explanations were confined to the necessity of creating an authority to control those of the Queen's subjects who were already in New Zealand, or whom she could not prevent from resorting to it, if so disposed. But, on the other hand, it is quite certain that the natives did not expect to obtain higher prices for the land from the Queen's agents than they had been satisfied with obtaining from individuals. On this point there were neither inquiries on the part of the Maories, nor explanations on the part of the Government. It seems to be the natural and just conclusion that they had no right to expect higher prices; and that as they were guaranteed in the possession of the land until satisfied with the price offered, they were under no necessity of taking lower prices than they had been previously satisfied with. On the other hand, if the Government refused to purchase land which was offered at rates similar to those which custom had established, the natives had a right to complain that the Government was not acting up to the spirit and intention of the treaty; and it is ever to be lamented that Captain Hobson should not have represented to the Home Government that the provision of funds to purchase all the lands, as they were offered on such terms, was an obligation binding upon the national faith. To the neglect of this duty is owing one of the first grounds of complaint and suspicion entertained by the natives, and the difficulties which have since proved so formidable, in extinguishing the native title.

There can, therefore, be no grounds for accusing the Government of a violation of the letter or spirit of the treaty in

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extinguishing the aboriginal title to the land on similar terms to those on which the natives had been accustomed to sell to individuals before the date of the treaty, whatever exchangeable value the lands may have acquired by the introduction of law to define and to maintain title according to the institutions of civilised countries. Much less is the Government obnoxious to the charge of injustice on grounds of natural equity. The title to land, which depends upon the power of those who claim it to hold what they claim, is a very different thing from the title to land which is defined by a law declaring in whom it shall vest, and embodying the whole undisputed power of a civilised community in defending and maintaining it as so defined. The law of nations, as expounded by Vattel and other jurists, admits the right of one nation, whose inhabitants are so crowded in their native territory as to press upon the means of subsistence, to take possession of another territory occupied by a nomad race which lives by hunting, upon condition of teaching the hunter the arts of agriculture, and thus enabling him to obtain subsistence independently of the chase. The law of nations is nothing more than the exposition of the law of righteousness, as applied to distinct nations and tribes, in the relations which exist, or may arise, amongst them. And in this particular, it is only an exposition of a higher law--that of the Creator himself, who, when He made man upon the earth, laid upon him the injunction to "increase and multiply and replenish the earth and subdue it." The earth is the universal heritage of man. Such races as have been faithful to the Divine command, having filled the face of the land allotted to them with cities; and fields waving with corn; and pastures covered with flocks; have, therewith, established laws to regulate the title to land amongst its inhabitants, and power to protect them from foreign aggression. But the case of the New Zealanders was widely different. There is every evidence from the time they first became known to civilised nations, that they had been carrying on a war of desolation, tribe exterminating tribe; spreading desolation over the country where God, in His providence, had placed them, instead of fulfilling His divine command to replenish it with inhabitants and to subdue it to their use. On grounds of natural justice, then, and in conformity with the fundamental law of divine origin, the New Zealanders possess no right to exclude the inhabitants of over-peopled countries from taking possession of, and using such parts of, their country--amounting, on a very moderate estimate, to nineteen-twentieths of the whole--which they could

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not themselves use, or have any prospect of ever requiring to use. Undoubtedly to them the benefit would have been inestimable, of being restricted to the use of a very small portion of their country, with such security for that portion as they never could obtain in their actual condition, even if they should have received no payment whatever for the remainder.

By an Act of Parliament, passed on the 17th August, 1840, Her Majesty was empowered to erect into a separate colony, or colonies, any islands which then were, or thereafter might be, comprised within, and be dependencies of, the colony of New South Wales, and to annex the possessions acquired in New Zealand to that colony, until circumstances should make it expedient to give New Zealand a Government and Legislature of its own.

The first time the Legislature of New South Wales met, after the extension of its jurisdiction to New Zealand, was on the 28th May, 1840, at which session two Acts were passed: the one, declaring that the laws of New South Wales extend to Her Majesty's dominions in New Zealand, and indemnifying certain officers for acts already done; the other, "to empower the Governor of New South Wales to appoint commissioners, with certain powers, to examine into, and report on, claims to grants of land in New Zealand." The former of these Acts excited little interest; the latter, when published as a Bill in the Gazette, previous to its introduction to the Council, excited, not only the alarm, but the astonishment of every one who had acquired landed property in that country, inasmuch as it not only denied their right of property in their possessions, however equitably acquired from the original, rightful, and acknowledged owners, but indicated the determination of the Government virtually to deprive each individual of the most valuable portion of his property--such, for instance, as might be suitable for sites of towns. As this measure of Sir George Gipps, which was subsequently re-enacted in New Zealand, was the root of all the disturbances which have since occurred in that country--the first of a set of public measures which departed successively further and further from the principles of every civilised code of law--it is necessary to examine its provisions with a degree of care which is due as well to the novelty of the subject as a matter of legislation, as to the extent of the interests affected by it, and the disastrous results which followed from it.

The claimants to land in New Zealand, to whom this Act applied, may be considered as belonging to three distinct classes, namely:--

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First, The missionary and other settlers in the North.

Secondly, The New Zealand Company and the settlers in Cook's Straits, who had purchased the title to land from the Company before the Company itself had obtained that title; and.

Thirdly, The persons who, in contemplation of New Zealand becoming a British colony, had gone, or sent agents, to different parts of the country to purchase land upon speculation.

The first purchases of land in New Zealand were made by the missionaries of the Church and Wesleyan Missionaries' Societies on behalf of their constituents. The object of these purchases was to secure a right to the land necessary for their establishments--that is, not merely for their houses and gardens, but of extent sufficient to keep at a distance such of their own countrymen as might, by their interference or example, be liable to interrupt or weaken the effect of their labours. These purchases, some of which took place as early as 1815, were of no great extent, but it is remarkable that in no case has their validity been called in question. The prices paid for those portions of land were by no means so trifling as has been represented, when the qualities of the soil were considered. In fact, the joint claims of different families of natives to the same land made it necessary, in order to extinguish those claims, to pay a price beyond its intrinsic value. It was, therefore, by no means the case, as was generally supposed in England, that, with an acknowledged title, "large tracts of land have been acquired by settlers for nominal considerations--a blanket, a hatchet, or a gun; 2 nor, in subsequent cases, were the missionaries and settlers able to obtain from the natives a valid--that is, an undisputed -- title, without paying in commodities or in money a fair equivalent for the land. The liberality of the missionaries in their early purchases had established a standard which was subsequently appealed to, and few of the settlers who from time to time had established themselves in the northern part of New Zealand had anything to fear from the result of any investigation to which their titles could be subjected. Many of these, indeed, had been assisted by the missionaries in making their purchases, a duty to which the latter were called not less by the importunity of the natives than by a desire to assist their countrymen. Most

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of the missionaries had at a later date become purchasers of land as a provision for their large families.

Much odium was cast upon the missionaries of the Church Missionary Society for their conduct in these transactions. It was alleged by the agents of the New Zealand Company that they had taken advantage of the confidence reposed in them by the natives to acquire large tracts of land in opposition to the instructions of their constituents. The facts are these:-- The Society authorised the expenditure from its funds of 50l. in making a purchase of land as a provision for each missionary's child on arriving at the age of fifteen, at which age the children of the missionaries ceased to obtain support from the Society, This allowance, it was supposed, would purchase 200 acres of land, but the missionaries had no right to consider that they were debarred from purchasing a greater quantity, and, in most places, that sum was an ample payment for land to a much greater extent. Several of the missionaries also made purchases of land for their younger children without waiting till they should have arrived at the age of fifteen. To this course they were urged by the natives, who professed their inability to retain the land for them. It was almost universally the wish of the chiefs that the children of the missionaries should be settled in their neighbourhood in order that the son of the missionary should be the neighbour and friend of the son of the chief; and this advantage, they truly represented, could only be obtained by an immediate purchase, as the majority of the natives were at that time bent upon selling all the land they did not require for themselves as soon as a purchaser could be found. The most extensive transactions of the missionaries, however, were not actual purchases, but conveyances to the Church Missionary Society of large tracts belonging to certain tribes, in joint property, to be held in trust for themselves and their children for ever. Such was the mania for selling land that it was feared some of the tribes would be left without any, and the weaker families were unable to prevent the sale by the more powerful. Amongst the claims put forward by individual missionaries, there were two for tracts of 40,000 and 50,000 acres respectively. But both those claims were acquired under very peculiar circumstances. In the one case the land in question had been for many years a bone of contention between two tribes, those of Waikato and the Thames. The Rev. Henry Williams, when endeavouring to establish peace between those two tribes--was told that there was no hope of peace, because neither party would yield the right of that land to the other. Mr. Williams then said, if that

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were the case he would take the land to himself, and neither of them should have it. Both parties seized upon this proposition, and, as Mr. Williams did not want the land for himself, he recommended Mr. Fairburn, who was stationed in that neighbourhood, to take it. Goods to the value of 150l. were given amongst the two tribes, and this standing cause of war was effectually put an end to. The purchaser of this tract of land, on finding that, by the settlement of Auckland some years afterwards, within a distance of twenty miles from it, it was likely to become valuable, voluntarily conveyed one-third to the Church Missionary Society, one-third to the natives, and proposed to retain one-third for himself; but he finally acquiesced in its seizure by the Government, and received a grant from the Crown of 5000 acres.

The other purchase of 50,000 acres was effected in order to enable a tribe who had been expelled from their homes, in the neighbourhood of the North Cape, twenty years before, to return to them. This object was specified in the deed of purchase, and a large portion, amounting to about 100 of that tribe, availed themselves of the privilege thus afforded them. The purchaser, the Rev. Richard Taylor, states that "he shall be satisfied with retaining a sufficient portion for himself to cover his outlay, but he has not selected any as yet." 3

In fifteen other cases of persons then or formerly connected with the Church Missionary Society, which are all that are specified in the returns laid before Parliament, on the motion of Mr. Aglionby and Sir R. H. Inglis on 22d April, 1845, the aggregate claims amount to 58,984 acres. Of these fifteen persons, twelve had eighty-eight children, and each of the other three had children also, although their number was not ascertained. These fifteen cases comprise all the most extensive purchases made by persons connected with the Church Missionary Society, exclusively of the two particularly referred to above. And the land purchased appears to amount to considerably less than one square mile for each child; whereas the Government of New South Wales was, about the time these purchases were made, in the habit of making a free grant to each daughter of a clergyman of two square miles, and to each son of three square miles, as a means of settling them in life, in a colony where such a provision was much less indispensable than in New Zealand. Moreover, the recipients of the bounty of the Crown in New South Wales were allowed to select their

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grants from many millions of acres; whereas the New Zealanders never would sell their best land. It is probable that of the 58,984 acres, not more than 10,000 acres is of any value for cultivation; and even for cattle runs the whole is of exceeding little value when compared with the pastures of New South Wales, being covered with fern and scrub instead of grass.

The claims of the New Zealand Company, and their settlers in the South, were of a very opposite character. That Company, assuming that the natives would, as a matter of course, agree to part with whatever territories they required, had made very extensive sales in England of such lands as they expected to acquire; but, on the attempt of the settlers to take possession, it was found that the agents of the Company had altogether mistaken the nature of Maori title. An agent of that Company stated in evidence, before a Committee of the House of Commons, that their purchases extended to 20 millions of acres; and it appears from the details of their expenditure, furnished by the same witness, that the price was something less than one farthing per acre. 4 These claims were repudiated by the great majority of the natives, who knew or understood nothing of them, and the persistence of the Company's agents and settlers in asserting them led to the fearful catastrophe in which so many perished at Wairau.

The third class of claimants, those who had proceeded from the neighbouring colonies to make purchases of land to which it was expected that the establishment of British government would give a value, had resorted to similar modes of acquiring a title to those adopted by the agents of the New Zealand Company. Their title-deeds were generally drawn in English by a Sydney lawyer. It may be doubted whether, in any case, the natives understood the nature of the contracts into which they were supposed to have entered; and in few cases were the titles, such as they were, obtained from all the parties whose consent was necessary to give validity to the deed, even had its full purport been understood. It happened, accordingly, that claims were put in for extensive territories with no better title than the purchaser of a house in London could show to the whole parish where it was situated.

By a charter, dated November 16, 1840, the Islands of New Zealand were erected into a colony, and a Legislative Council was appointed, consisting of seven persons--viz., the Governor, three of his public functionaries, and three persons selected by the Governor from amongst the settlers.

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In Lord John Russell's despatch to Captain Hobson, the first Governor, transmitting the charter, he gives him instructions with respect to legislation in the following words:-- "Proceeding upon the well-established principle of law, that Her Majesty's subjects, settled in a country acquired as New Zealand has been acquired, carry with them, as their birth-right, so much of the law of England as is applicable to their altered circumstances; that fundamental rule has been qualified in the infancy of the colony, by constituting a Legislature, nominated by the Crown, in New Zealand, as in other Australian colonies. 5 The legislative power, thus concentrated in few hands, imposes on those who hold it the duty of exercising it with constant regard to the principles of justice and to the welfare of the colony;" and Lord John Russell further reminds the Governor, amongst other suitable admonitions, "that the responsibility of Her Majesty's Government is peculiarly grave in assenting to laws enacted in a colony in which there is no representation of the people. 6

The charter provides that "it shall be lawful for such Legislative Council to make and ordain all such laws and ordinances as may be required for the peace, order, and good government of any such colony as aforesaid, for which such Legislative Council may be so appointed; and that in the making of all such laws and ordinances the said Legislative Council shall conform to and observe all such instructions as we, with the advice of our Privy Council, shall from time to time make for their guidance therein, PROVIDED ALWAYS THAT NO SUCH INSTRUCTIONS, AND THAT NO SUCH LAWS OR ORDINANCES, AS AFORESAID, SHALL BE REPUGNANT TO THE LAW OF ENGLAND, but consistent therewith, so far as the circumstances of any such colony may admit." The common law of England, and such statutes as had been enacted previous to its establishment, are in force in every colony of British settlement; and it is to these, so far as they regard the principles of law, that the proviso of repugnancy applies. The laws not "applicable to their altered circumstances are of various kinds--they consist of laws of administration relating to the revenues, or to institutions which do not exist in the colonies; to laws having local application only, such as the law of gavel-kind; to the ecclesiastical laws of England, which do not extend to all parts of the United

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Kingdom; and to others which, for like reasons, are incapable of application in a colonial community.

That the fundamental laws of the realm relating to the protection of life, liberty, and property have force in all the colonies of British settlement, and that no subordinate Legislature has power to set them aside even under charters and constitutions which contain no proviso against the enactment of statutes repugnant to the law of England, has been established by a continued stream of decisions of the Superior Courts in England from the time of Lord Mansfield, in Campbell v. Hall (Cowp., 204), to the latest decisions of the Judicial Committee of the Privy Council; and yet the very second ordinance of the Legislative Council of New Zealand is as flagrant a violation of the 29th chapter of Magna Charta as it is possible to conceive. The second clause of that ordinance (the "Land Claims Ordinance," No. 2, of session 1) enacts-- "That all titles to land in the said colony of New Zealand which are held or claimed by virtue of purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, leases or pretended leases, agreements, or other titles, either mediately or immediately, from the chiefs or other individuals, or individual of the aboriginal tribes inhabiting the said colony, and which are not, or may not hereafter, be allowed by Her Majesty, her heirs and successors, are, and the same shall be, absolutely null and void." 7 It is evident that this is a judicial decision rather than an enactment of law, and the Legislative Council had no judicial functions or authority to declare laws any more than to set aside the law of England. 8

In further provisions of the ordinance, an arbitrary scale is laid down for the guidance of the commissioners who were to be appointed to investigate titles, by which they were bound to recommend grants in proportion to certain prices per acre, varying with the dates at which the purchases were made, without any reference to the quality or value of the land; but they might recommend larger grants than the scale specified, if authorised thereto by the Governor and Executive Council of the colony.

To make this ordinance effectual in dispossessing parties of land for which a Crown title was refused, another ordinance, "The Native Land Purchase Ordinance," was passed, which

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contained the following provision:-- "If any person, who shall not hold a license from the Government for that purpose, shall, after the passing of this ordinance, be found using or occupying any land not comprised within a grant from the Crown, either by depasturing any sheep or cattle thereon, or by residing thereon, or by erecting any house or building thereon, or by clearing, enclosing, or cultivating any portion thereof, or who shall be found, without such license aforesaid, to have cut timber or other trees thereon, or to have gotten any mineral therefrom, --every such person shall, upon conviction of any of the offences hereinbefore mentioned, forfeit and pay any sum not less than five pounds nor more than one hundred pounds, to be recovered in a summary way;" and a like penalty was provided for any act of ownership occurring after one month from a previous conviction.

In the instructions conveyed to Captain Hobson, when proceeding as Consul to New Zealand, by the Marquis of Normanby, Her Majesty's Principal Secretary of State for the Colonies, it is stated that the "title (of the aborigines)" to the soil and sovereignty of New Zealand is indisputable, and has been solemnly recognised by the British Government." 9 On the recognition of this title he was instructed to negotiate with the chiefs and people for a cession of their sovereign rights to the Queen of England, as well as of the right of pre-emption to the soil. "It is not, however," (says Lord Normanby) "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."

With respect to the lands which had been already ceded to individual subjects of the Queen, he was thus instructed:-- "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 hereafter be 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 pro-

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perty 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." 10

It is clear that these instructions contain a complete recognition of title in the aborigines; and, indeed, this recognition had previously been made on the much higher authority of several Acts of the British Parliament, and of various State papers, as shown at length in a Memorandum of Lord John Russell, printed at page 69 of the same series of Parliamentary papers. It also recognises the title of those British subjects who were "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." Provision was then to be made by a Legislative Commission for the investigation of the conditions upon which lands had been purchased from the natives, and, on the report of this Commission, the Governor was, in each case, to decide which purchases were to be recognised by a confirmatory grant, and on what conditions. In another part of the Parliamentary papers there is an indication of the course which was contemplated by the British Government in relation to purchases that might be considered to be "upon a scale which must be prejudicial to the latent interests of the community." In writing to William Hutt, Esq., M. P., Mr. Labouchere, Under-Secretary for the Colonies, states that:-- "Lord Normanby wishes it to be further understood that no pledge can be given for the future recognition by Her Majesty of any proprietary titles to land within New Zealand which the (New Zealand) Company, or any other persons, may obtain by grant or by purchase from the natives. On the contrary, with a view to the protection of the interests of the aborigines, as well as to the future prosperity of any colony which may be established in New Zealand, it is probable that application to Parliament may hereafter become necessary to provide for the investment in the Crown of any proprietary rights which may thus be acquired by private parties, with such equitable compensations to them as, under all the circumstances of the case, may appear expedient." 11

According to the constitutional law of England, the power to interfere with private rights of property o]therwise than by the settlement of contested rights by due course of law belongs to Parliament alone; and such interference never takes place unless for the furtherance of some object of public necessity,

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or of the utmost public importance, and then only consequent upon full compensation to the parties whose interests are affected, according to the judgment of an impartial tribunal.

Nor will the least justification for such an interference with private rights be afforded by the principles of international law. In the case of the Mayor of Lyons v. the East India Company, Lord Brougham, in delivering the judgment of the Court, stated that:-- "All the authorities lay it down that upon a conquest the inhabitants, ante nati as well as post nati, of the conquered country become denizens of the conquered country, and to maintain that the conquered people become aliens to their new Sovereign upon his accession to the dominion over them, appears extremely absurd." (Moore's P. C. C., I. 287.) And if so in the case of foreigners in a conquered country, how ineffably absurd would it be to maintain that a citizen of the country which acquired a new dominion, not by conquest, but by treaty of cession, should be deprived of the rights and privileges which he holds by virtue of his double citizenship, being a natural born subject of the one, and, as holding land, a naturalised subject of the other, in respect to the privilege of holding it.

From time immemorial the British Government has recognised the right of a British subject to hold lands in a foreign country, and the Courts of Equity will receive and maintain Bills for the specific performance of contracts touching the same, where both parties are British subjects. (Angus v. Angus, West's Rep. temp., Hardwicke 23; Lord Cranstown v. Johnston, 3 Vesey, 170; Story Eq. Jur., s. 744, 1296.) "Every nation that governs itself under what form soever without dependence on any foreign Power is a Sovereign State." (Vattel 2.) "A nation has the power of granting or refusing foreigners the right of possessing lands or other immovable property within its territory" (Ibid, 176); "and no other nation has a right to dictate to it in such matters. (Ibid, lxii.) All these rights were admitted by the British Government as existing in the tribes of New Zealand, and made the grounds of the treaty by which its sovereignty was ceded to the Queen of England.

But the parties whose interests were affected in New Zealand were distant and weak; their legal rights were trampled upon by what may be termed a desecration of the sacred functions of legislation in disregard, not only of the law, but of the pledge

given in Her Majesty's name, that "it was not intended to dispossess the owners of any property which has been acquired

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on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community." Under the provisions of the "Land Claims Act," the party whose titles were examined the second in order by the Commissioners received notice, as soon as it was reported to the Governor, that the title to a piece of land of about 300 acres in extent, on which the owner had lived for upwards of seven years, had been acquired on equitable conditions, "that the greater part of it would be required to be reserved for a public township." For it was only in due consistency with other parts of these proceedings that the proof of an equitable and undisputed title was made the ground-work and justification for its confiscation. This party was some time afterwards visited by an old chief of Heke's tribe, from whom the land was purchased, and told not to allow himself to be disturbed, when this Marangai (a stormy wind) proceeded forth from the Governor, for they who sold him the land would maintain him in possession of it.

Then, as regards the equity of such titles, history informs us that the land subsequently constituting one of the United States of America was purchased from the Indians for "a pair of trousers and a soldier's old coat"--and Lord John Russell, in speaking in the House of Commons in relation to the lands purchased by British settlers in New Zealand, said that he would not give back the blanket or the hatchet with which the land was purchased, but would give each settler a liberal grant out of the land he had purchased. Such were the ideas entertained by the Government at home respecting the purchases of land made by British subjects in New Zealand. In the great debate on New Zealand in June, 1845, Mr. G. W. Hope, Under-Secretary for the Colonies, stated that "as early as 1836 there were 2000 British settlers in New Zealand who had obtained their lands entirely by purchase from the natives. So far, therefore, from the natives not having been in the habit of making sales of land, the number of settlers he had mentioned had established themselves by purchase. It appeared by the papers before the House that from 750 to 1000 claims were made by such settlers, extending to many thousand acres of land; and it was a very remarkable fact that out of that large number of claimants whose cases were inquired into by a properly-constituted tribunal the claims of only seven or eight were disputed." 12 A still more honourable testimony is borne to the

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uprightness of the natives in these transactions in a letter addressed by the Commissioners to the Colonial Secretary of New Zealand, dated Auckland, 4th May, 1843:-- "In reply (say the Commissioners) to the Memorandum of his Excellency the officer administering the Government addressed to us this day, demanding 'if the conduct of natives in the investigation of land claims has caused a great alienation of feeling between the parties, and a disposition in some cases has been manifested to get returned to them lands which they formerly sold,' we have the honour to report that we have now examined more than half of all the claims, yet have never remarked such a consequence in any of our investigations...... We have examined some natives more than ordinarily dissipated and corrupted by habits of intoxication, still even these never made any unjust attempt to repossess themselves of their lands: witness the examination of Pomare upon the sale of Russel, which took place a year after its purchase from Mr. Clendon by the Government, and was well known by Pomare to have then become of a vastly-increased value." 13 It must be observed that the claims referred to by the Commissioners Godfrey and Richmond in this letter were almost exclusively those of the settlers in the north of the Northern Island, who, following the example of the missionaries, had dealt with the natives on terms of fairness and reciprocity. How erroneous were the ideas indicated by Lord John Russell as to the prices paid for those lands will appear by the report of a subsequent Land Claims Commissioner, dated 8th July, 1862. It is therein stated that "the whole amount of money or money's worth which their purchases cost the claimants was, in round numbers, 131,000l; the total area of their claims was 474,000 acres. Looking, therefore, at the transaction in the gross, it may be said that the land cost the claimants 5s. 6d. per acre. 14 So different were the facts to the assumption of Lord John Russell that estates were purchased for a hatchet or a blanket. This sum of 131,000l., or 5s. 6d. an acre, included the fees paid to the Commissioners and the expense of surveying the land, but did not include the expenses the settlers were put to in bringing forward the native witnesses to give evidence before the Commissioners. In another part of the same report the Commissioner states that "in the return will be found the acreage awarded or granted in each case. This, including the survey

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allowances granted under the Act, amounts in the whole to 292,475 acres, and will probably reach the total quantity of about 315,000 acres if no alteration be made in the principles of the existing Acts." 15 "It will be seen that the total number of acres reverting to the Crown upon the settlement of the land claims is 204,243, of which the greater portion is situated in the vicinity of the Bay of Islands." 16

There are two prejudices of a kind very opposite to each Other, one or other of which is apt to possess the minds of men who are the subjects of civilised States in which the municipal laws have from a remote period established and defined the rights of property. The one is that, as the rights of property are the creation of law, there can be no rights where there are no laws to define them; the other is that existing law, which took its peculiar form from circumstances existing at the time of its enactment, is applicable in all its details and peculiarities to circumstances essentially different. But the conduct of the Maories gives evidence of the existence of a certain innate sense of right and obligation in relation to the possession of land similar to what we find in the earliest records of the human race, which, in the one case as well as in the other, were antecedent to the existence of any laws promulgated by human authority. It has been seen how the Northern chiefs maintained the obligation to admit the rights of possession they had conveyed by voluntary sale; and Rauparaha, the powerful chief of Cook's Straits, though, like the rest, willing to make sale of such lands as the natives did not wish to retain for themselves, expressed his determination to maintain possession of what they had not sold and did not intend to sell until he should have brought the question to issue by a trial of strength. In reference to an expected arrival of soldiers at Port Nicholson, he said-- "You need not take the trouble to send up here for us. If you will only send (the information) I will come down to Port Nicholson with 1000 Maories, and have a fight with the white men. If they beat us they shall have New Zealand and we will be their slaves; but, if we beat them, they must stand clear." Though Abraham was rich in cattle and moveable property and in servants, he was only a sojourner in the land which was promised to his posterity; and though Abimelech, the King of Gerar, was so afraid of him that he prayed that there might be a covenant between them binding Abraham to deal faithfully

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with his children, yet Abraham does not appear to have claimed the possession of a single spot of land.

A remarkable instance is here furnished at once of the recognition of the right of possession as existing in those who were in possession, and also of another right derived from the incorporation of labour with the land. While Abimelech sought to make a treaty of peace and alliance with Abraham, "Abraham reproved Abimelech because of a well of water which Abimelech's servants had violently taken away." But while he claimed the right to the water, he set apart seven ewe lambs, and he said to Abimelech, "For these seven ewe lambs shalt thou take of my hand that they may be a witness unto me that I have digged this well." When Sarah died at Hebron in the land of Canaan, "Abraham stood up from before his dead and spake unto the sons of Heth, saying, 'I am a stranger and a sojourner with you, give me a possession of a burying-place with you, that I may bury my dead out of my sight.' And the children of Heth answered Abraham, saying unto him, 'Hear us, my lord; thou art a mighty Prince among us; in the choice of our sepulchres bury thy dead; none of us shall withhold from thee his sepulchre that thou mayest bury thy dead.'" But Abraham was not satisfied with this general permission, nor would he accept as a gift "the field of Macphelah and the cave that is therein, which he desired to purchase" from Ephron the Hittite. " Nay, my lord (said Ephron), hear me, the field give I thee, and the cave that is therein, in the presence of the sons of my people give I it thee, bury thy dead. " But Abraham insisted upon making good his possession by paying the price which Ephron said it was worth--" four hundred shekels of silver, current money with the merchant. And the field of Ephron which was in Macphelah, which was before Mamre, the field, and the cave which was therein, and all the trees that were in the field, that were in all the borders round about were made sure unto Abraham for a possession in the presence of the children of Heth, before all that went in at the gate of the city." The title thus obtained seems to have been respected after the descendants of Abraham had abandoned the land of Canaan; for Jacob, when dying, charged his children to bury him in the cave with his fathers, reciting to them the terms of purchase from the children of Heth: and "his sons carried him into the land of Canaan, and buried him in the cave of the field of Macphelah"--nearly 200 years subsequent to the time of the purchase. In after years, when the descendants of Abraham were in full possession of the land

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which had been promised them, there is an instructive controversy recorded as to the right of possession:-- "The children of Israel did evil again in the sight of the Lord, and he sold them into the hands of the Philistines and into the hands of the children of Ammon, and the children of Ammon were gathered together and encamped in Gilead. And Jepthah sent messengers unto the King of the children of Ammon, saying, 'What hast thou to do with me that thou are come against me to fight in my land?' And the King of the children of Ammon answered unto the messengers of Jepthah, 'Because Israel took away my land when they came out of Egypt from Amon, even unto Jabbok, and unto Jordan, and now, therefore, restore those lands again peaceably.'" In answer to this request, Jepthah recited the progress of the Israelites, showing that, as Sihon, King of the Amorites, would not allow them to pass through his land, but "gathered together all his people, and pitched in Jabez, and fought against Israel, and the Lord God of Israel delivered Sihon and all his people into the hand of Israel, and they smote them; so Israel possessed all the land of the Amorites, the inhabitants of that country." "While Israel dwelt in Heshbon and her towns, and in Aroer and her towns, and in all the cities that be along by the coasts of Arnon, three hundred years? why, therefore, did ye not recover them within that time? Wherefore I have not sinned against thee, but thou doest wrong to war against me; the Lord, the judge, be judge this day between the children of Israel and the children of Ammon. Howbeit, the King of the children of Ammon hearkened not unto the words of Jepthah which he sent him."

These instances are illustrations of the natural right of possession, and the obligation to respect that right, both as regards the rights of individuals and the rights of communities, before there was either municipal or international law to define the one or illustrate the other.

The Bay of Islands district was first settled by missionaries of the Church Missionary Society, who had numerous families, for the members of which they purchased portions of land as the only provision it was possible to make for their settlement in life. By their assistance, and by the assistance of the British Resident who was stationed there, and whose instructions required him to give encouragement and protection to the well-disposed British settlers, 17 many of the other settlers were aided in making their purchases. The honesty and straightforward-

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ness with which the natives almost universally acknowledged and maintained their contracts is one of the most remarkable facts in the history of newly-settled countries; and in proportion to this honesty were the proceedings of the Government revolting to them. They resented the cross-questioning to which the Commissioners, on the examination of the first cases, were disposed to resort, assuring them that there was no fraud in the transactions, and that all parties were satisfied with them. Before New Zealand was erected into a separate colony it had been, as before stated, attached as a dependency to New South Wales, and the first "Land Claims Bill" had been passed by the Legislature of that colony. It appeared that when that bill was before the Council in Sydney, and while the late British Resident and other parties interested in New Zealand were being heard at the bar of the Council against the provisions of the bill, as being certain to destroy the confidence of the natives in the uprightness of the British Government, and thereby put an end to the only means of maintaining peace in that country for many years to come, a native of New Zealand had been introduced into the gallery of the Council-chamber. On his return to Hokianga, his native place, which lies on the west coast of the Northern Island, opposite to the Bay of Islands, and where between 100 and 200 British settlers at that time resided, he raised the indignation of his countrymen to the highest pitch by a description of what he had witnessed. A deputation, most of the natives who composed it being converts to Christianity, visited the late Rev. Richard Davis, whose station lay nearest to them, and conjured him to tell them the truth. "Was it true that certain men sitting in a room at Sydney were planning to take possession of their lands?" To this Mr. Davis was able to say that he believed there was no such intention. They then asked if it was not true that it was proposed to deprive the settlers of the land sold to them? To this question it was impossible for Mr. Davis to reply in the negative. He told them he believed that was to a certain extent true. "And is it supposed," they said, "that we are such fools as to believe that if the Queen treats her own children in this way she will show more regard to the Maori men, when she is strong enough to take their lands!" Mr. Davis was forced to listen to the expression of a suspicion that in advising them to agree to the treaty of Waitangi, the missionaries had acted a treacherous part, and to a threat that, if it should prove so, they would be the first to feel their vengeance. At the time when the treaty of Waitangi was made, such was the confidence of

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the Maories in the honour of the Queen of England and her functionaries that they might have been led like a flock of sheep by the hand of an upright and judicious governor. But this confidence had now given way to that distrust of the intentions of the Government with respect to their land, which broke forth in Heke's rebellion in 1845, and which subsequent proceedings of a like nature rooted and confirmed in their minds, till it became that "incurable suspicion," to which Mr. Fortescue, the Under-Secretary of the Colonies, on a late occasion rightly attributed the war--a suspicion which, he truly said, "it was very difficult to cure"--a suspicion which all the favours and indulgences heaped upon the Maories, and especially those of Waikato; the ploughs which were given to them to lead them to adopt a better system of cultivating the land; the seed to sow it; the mills to grind their wheat; the millwrights and blacksmiths salaried to assist and guide them; the money to buy vessels; the schools established for their children; and, above all, the devoted ministration of Christian ministers, was unable to prevent breaking out, a second time, into rebellion. The history of the world presents no similar instance of a barbaric people so cherished and petted by a superior race; and yet the conduct of that Government to the Queen's natural born subjects inspired that people with a determination to shake off its dominion, even at the sacrifice of half their race.

It was not at the Bay of Islands alone that the proceedings of Sir George Gipps and his Council created distrust. In the papers laid before Parliament on the 12th August, 1842, there is a long report from the Protector of Aborigines, of his visit to the Thames and Waikato, on which he set out about six months after the passing of Sir George Gipps' bill confiscating the land of the settlers. He says--

18 "On the 10th December I embarked in the Victoria brig, proceeding to the Thames, for the purpose of visiting the chiefs of that district, and as far as possible to counteract the ill feelings of the natives towards the Government, arising from their natural jealousy, and strengthened and encouraged by designing men; to describe the state of the country through which I might pass; and to treat with the natives for such portions of their land as they may be disposed to part with, and can conveniently spare." These were the objects for which the journey was undertaken. A few further extracts will illustrate the state of mind in which, with one or two exceptions, he found the natives throughout his journey, which occupied a month.

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"The natives of Wakatiwai, and indeed all the places where we stopped, had much to say as to the probable intentions of Government towards them. They observed they were to be put down, but the Governor and the Europeans were to be exalted."

To his assurances that "their advisers had misrepresented the object of Government, one of the chiefs replied that the Governor's book was very good, likewise his talk (korero), but they should watch his actions with some jealousy. Another chief objected to their present position, because, he said, that however good our present Governor might be, he had heard that in a few years they might expect another, who, perhaps, would not be so well disposed towards them; and then, turning quickly round to me, he said, 'What has that other man on the other side of the water to do with us? (meaning His Excellency Sir George Gipps). They had never seen him, nor he them, neither had he visited their country, yet they had been given to understand that he and his Committee (meaning members of Council) were about taking their land from them' (meaning probably legislating for them), p. 94.

"I visited the chiefs at Kaweranga to correct the information generally in circulation amongst them, that the plans of Government are inimical to the welfare of the natives, and will ultimately prove the means of their destruction. This principle seems deeply rooted and widely disseminated around, and time only will eradicate the feeling, the New Zealanders being a people who will be better convinced by practical illustrations of the intentions of Government than by lengthened discussions. I have the promise from most of the chiefs that they will visit His Excellency when he is finally settled in Auckland."

At Maungatautari, in the Waikato country, "a large native residence, where there are several strong native pahs," he says:-- "The natives of this place are most of them professed Christians, and, from a formidable warlike people, have now become an industrious, peaceable community; most of them can read and write. They were not unacquainted with the general reports in circulation, but were less clamorous than many of the natives we had met with: they were not, however, without their misgivings, and were very inquisitive as to the ultimate intentions of the Queen respecting their country. They had hitherto, they said, been guided by missionaries, and should continue to be so until they had reason to believe they had been misled by them; then they would consider them as the authors of their misfortunes, and accountable for all consequences. They inquired after Kihi, the native who is in prison at Russel; some

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of them were relations. All said his sentence was just: a murderer ought not to go unpunished.

"At Otawao I endeavoured to appease the minds of the natives, who were evidently a good deal excited, and assured them that the Governor had given publicity to his intentions at all public meetings, in the circular, and in the treaty itself; and that one especial object was the protection of the natives. One fellow artfully replied, 'Does he (Sir George Gipps) love us more than his own countrymen? observing that if Europeans' land was to be taken from them, was theirs only to be saved?" In their present excited state I found it imprudent to say anything to them about purchasing land; but inquired what purchases had been made by Europeans, and learned that nothing had been sold save a few hundred acres to a man by the name of Turner, who has been living some years with a native wife at Waipa. I inquired how and where they had got their information respecting what was doing on the other side of the water; they told me it was from Europeans, and from Rewa, and that they were advised by him not to sell their land to the Government. 19

"At Pukatia I had a grand meeting with the natives, who beset me on every side calling for explanations. A Mr. Marshall had assured them that they and their country were sold to the Government. They did not like the treachery of the British Government. If they wished to take their country, why not do it openly? They would then know how to act; but for the paltry consideration of thirteen blankets (alluding to a present of thirteen blankets sent by His Excellency at the time they signed the treaty) had they been betrayed to sell their country. ......We would rather die fighting than be made slaves, or suffer our country to be taken from us; we fear nothing so much as treachery and slavery." The Protector's concluding advice is not without a spice of naivete. He said "Mr. Maunsell had never intended the blankets otherwise than as presents to the chiefs; at any rate, sit quietly until you see your land taken, and your fathers and your children killed, then you will have cause for complaint. With this we hardly quieted the natives (strange if you had) who, although so late, wanted to have more korero."

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Such were amongst the first fruits of the illegal ordinance of confiscation, amongst a people of whom the Protector says, before concluding his report:-- "The rapid advancement the natives are making in civilisation will appear not only from the extent of their cultivations, but from the fact that there was scarcely a village through which we passed that had not its village school and chapel, and in every place the sanctity of the Sabbath strictly observed."

But in the North the suspicion of injustice had taken the form of conviction. Some time after the massacre of the crew of the British ship Boyd at Wangaroa in the year 1809; the inhabitants of that district had been driven out by the Ngapuhis, under the leadership of the famous Hongi-ika, who had ever since occupied the surrounding country. Portions of the forests bordering on the harbours of Wangaroa and Mongonui had been sold by them to various Europeans, who were employed in cutting the timber. About the time of the Treaty of Waitangi Nopera (or Noble) Panekareau, the chief of the Rarawa tribe, which had been driven out by the Ngapuhis, began to think his tribe were in a condition to recover their former possessions. But instead of attempting this by force of arms, he represented to the Protector of Aborigines that his people, and not the Ngapuhis, were the rightful proprietors of the district. Instead of telling Nopera that those tribes only could be recognised as the owners of the land who were in possession -- the only principle which could apply to the case -- a fundamental principle in international law, and a principle well understood by the natives themselves--the Protector recognised the right, and offered Nopera 100l. to transfer it to the Government. Nopera accepted the money. Porirua, the chief of the Ngapuhis, was at the same time offered 1001. for what remained unsold by him to the settlers in the district of Mongonui. Immediately after these transactions, on the 24th June, 1840, a proclamation was issued in the following terms:-- "The Lieutenant-Governor desires it to be notified that the lands of Mongonui have been purchased for Her Majesty the Queen; and he therefore cautions the public against building, cutting timber, or trespassing thereon. Those persons who may have established themselves on these lands, either by building or enclosing grounds for cultivation, will be permitted to hold such tenements or lands undisturbed until the Commission to be hereafter appointed shall decide upon the rights of the respective parties." A more ill-omened proceeding could not have been contrived. The lands in question were chiefly possessed or occupied by persons who employed

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themselves in felling the timber and preparing it for the market, and most of them were closely connected with the chiefs and people of the place, being married to or having children by their daughters, and employing them in carrying on their trade. The natives now fully understood what was meant by confiscation. They had no conception of a Government representing in the abstract the interests of the community: they looked upon the Governor and his subordinates as individuals, and no reasoning could convince them that individuals who were capable of acting in this manner were worthy of confidence.

It was not till January, 1843, that the Commissioners opened their Court at Mongonui to investigate the titles which had been thus dealt with, and the following is the report made by the Commissioner on the occasion:--

"Mongonui, 15th January, 1843.
"To the Honourable the Colonial Secretary.

"Sir, --I have the honour to acquaint you, for the information of His Excellency, the officer administering the Government, that on my arrival here on the 6th inst., to investigate the claims to grants of land in this neighbourhood, I found the native chief Nopera, with upwards of 250 of his tribe, awaiting my arrival, in order to dispute and resist all the purchases or pretended purchases in or about Doubtless Bay that were not derived from him.

"Porirua established himself here with his tribe two days afterwards, supported by the Wangaroa natives under Ururoa. Upon my opening the Court and commencing the examination of certain sales of land made by Porirua (or Warekauri) and others, Nopera entered and declared as follows:--

"Firstly, He opposes all the purchases of lands not made from himself at Mongonui.

"Secondly, That he had a priority of right over all the land in the neighbourhood of Doubtless Bay, and denies the right of any other party to sell any land there without his sanction and ratification, which, however, had not been obtained in any case except in Captain Butler's purchase, which consequently was the only one he would allow of.

"Thirdly, That he considers the trifling property and cash given to him in 1840 (to the amount of 100l.) by the Government for the lands in Doubtless Bay was only an earnest of what he was to receive for these lands, Porirua having received as much, although he had disposed of his rights to, and had received payment from, the settlers. This purchase by the

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Government not having been completed according to his view of the matter, he thinks that the amount he has already received is only a fair equivalent for the feast given by him at Kaitaia upon the late Governor's arrival there.

"Fourthly, He (Nopera) promises that the settlers at Mongonui shall remain unmolested, and be permitted to occupy 'the spots they reside on, with any cultivation attached,' until the whole of the matter be arranged; and this license he considers an ample compensation to Porirua, &c., for any rights they may have had to the lands.

"Fifthly, That he would not now relinquish his right over these lands, either to the settlers or to the Government, for any consideration that could be offered, but that he will maintain his right to the lands vi et armis.

"The adverse tribes have opposed the sales made by Nopera to Mr. Ford and Mr. Taylor, and with more show of justice, because these lands have been their dwelling places for very many years.

"I proposed divers modes of arranging their differences to these chiefs, but without effect, Nopera being the most determined in resistance. He considers that the offer (as he calls it) of the Government in 1840 to purchase his rights over the heads of Europeans already settled upon these lands was an absolute confirmation and admission of his title.

"The two parties mustered upwards of 400 fighting men, were fully armed with abundance of ammunition, and their muskets loaded with ball cartridge. Each party danced the war dance, and was harangued by their respective chiefs; and at one time it appeared very probable that they would have come to blows before me.

"I have frequently visited Nopera since, in the hope of finding him in a more tractable disposition, but hitherto he has not given way in the least.

"I intend to proceed to Kaitaia in a few days to investigate the claims not disputed by these parties there, and shall endeavour to bring Nopera to terms during my stay there, but my hopes of being successful are very faint. --I have, &c.,

Commissioner." 20

A month later the Commissioner writes from Kaitaia:-- "Immediately after my arrival at Kaitaia all Nopera's tribes

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assembled there in considerable numbers; and in a public conference many violent and seditious speeches were made by Nopera and other chiefs. In these harangues they declared--

"1. That the sales of land around Kaitaia already made by Nopera and his party to individuals should be acknowledged; but that any surplus lands, i. e., those the Government does not grant to the claimants, will be resumed by the chiefs who sold them.

"2. That they will sell no more land either to individuals or to the Government.

"3. That the chiefs will exercise all their ancient rights and authority of every description as heretofore; and will not in future allow of any claims or interference on the part of the Government.

"4. That they are all (except Nopera) very unwilling to arrange the dispute about the lands at Mongonui.

"5. That they (Morenga and his party) object to give the promised compensation for having stripped the vessel at Waro, one old gentleman declaring that they would be on the look-out for and take advantage of every similar God-send." 21

The vessel referred to was a new schooner on her first voyage, which got on shore, when she was stripped by the natives of all her sails and tackle, and became a total wreck in consequence. According to native custom, the plundering of a shipwrecked vessel, or of a burning house, is a legitimate proceeding; nor would the suffering party, if a New Zealander, think himself wronged. He would consider it a just punishment for allowing his canoe to be wrecked, or his house to catch fire. But by the influence of the Protector, a tract of land had been promised as compensation for the plunder of this vessel. The change thus indicated in their intention was owing to their having heard that a tract of land, which had been given on the Kaipara River for the destruction of a settler's house there, had not been given to the settler, but appropriated by the Government, who said they would give the settler what was right. The natives who plundered the vessel now asked "if they should give the land, would Tipene (the owner of the vessel) get it?" "Did Potete get the land which was given for the burning of his house?"

Porirua, the Ngapuhi chief, who had sold the greatest part of the land to the settlers, and accepted 100l. from the Government for the remainder, and who had come armed to the Commissioners' Court to assert and maintain the rights he had conveyed,

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although he and his people had ceased to have any interest in them, was joined by other Ngapuhi chiefs, with three large canoes full of armed men, from the Bay of Islands.

As regarded the Ngapuhis, the war which they came to wage was altogether upon a point of honour. Otane, the elder brother of Porirua, expressed himself thus to the Protector of Aborigines:-- "He had been accused and abused by the Europeans for selling them land which did not belong to him, which had made him much ashamed; and to show them that he could not act so unworthy a part, he offered the Government a piece of timber-land in the district of Oruru as a compensation for Noble's claims to Mongonui," 22 referring to the claims recognised by the Government. Otane's feelings, as thus expressed, were the feelings of all the tribes with which he was connected; and they mustered their forces to protect the rights of the British settlers to the lands which they had conveyed to them. The most powerful influences--those of the Bishop of New Zealand, Archdeacon Williams, the head of the Church Mission, and Mr. Clarke, the Protector of Aborigines--were brought to bear upon them in vain. Nor was peace made till fifteen natives had lost their lives and much property had been destroyed. It was in this contest that Hone Heke, the leader in the subsequent war, first distinguished himself by his coolness and determination.

The Bay of Islands lost much of its importance by the establishment of the Government at Auckland--a large proportion of the settlers accepted the offer made by the Government to exchange their lands in the neighbourhood of the Bay for land near Auckland. The establishment of a Custom-house, and the levy of duties upon imports, and especially upon tobacco, had made the harbour a less desirable resort for whaling ships, and thereby caused much discontent amongst the traders of the place; and this discontent was communicated by them to the natives. It was asserted that foreigners had encouraged them to rebel, by the assurance of assistance from other nations, if they would repudiate the English flag. And all their former confidence in the uprightness of the Government being destroyed, Heke's rebellion broke out by the cutting down of the flagstaff on a hill above the town of Russel. In two letters addressed to Governor Fitzroy he gives his reason for this proceeding. In the first letter, dated May 21, 1845, he says:-- "We are taunted with this language by the white people; by the white people of Hokianga, of Wangaroa, of Kororareka, of

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Wahapu, of Otuihu: they made this 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 then 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 flagstaff; 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."

The second letter, which is dated July 15, 1845, is as follows:-- "Mr. Governor, this is my 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 flagstaff which stands at Maiki.' I said, 'What is to be done?' They replied, 'Cut down the flagstaff; it was chopped down, the tree fell.' I said, 'What meaning is there in the flagstaff? The white people told me the power of the Queen is in the flag; there are three nations in it.' I said, 'God made this land for us and for all our children.'"

In another letter, dated 29th August, 1845, he asks the Governor to provide a ship to take him in search of some other dwelling-place. He says:-- "This is mine to you; my retention of my lands, and my sorrow for my lands, shall cease. Let them all go, the whole of them. I will not attempt to save even a part of my land....

"The thing that I put most value upon is land, because it was given by God for a dwelling-place for man in this world, a resting-place for the soles of his feet, a burial-place for strangers of the world. Amen....

"If you compassionate us and give us a ship, there will be no difficulty about the relinquishment of the land by us; if not, then now is it to be? We, the evil people, shall remain upon our lands then? But if we go elsewhere it will be good --the offences will not be seen. It is written, 'If you are evil entreated at one place, remove to another.'" 23

It has been stated that the Customs have been one of the causes of the native revolt, the natives paying double price for

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tobacco and not being allowed to trade with the ships for it; on the other hand, they received twice or three times the former price for their produce after the establishment of the colony. But the abolition of the customs did not prevent the second outbreak; nor did the waivers of pre-emption of 26th March and 10th October, 1844,

In reference to the Customs' duties, Governor Grey, under date the 12th May, 1846, writes to Lord Stanley as follows:--

"Whilst upon the ground of discontent, no objection at present exists to the payment of Customs' duties, as the native chiefs are beginning very generally to understand that the Government cannot be conducted without money; they are also generally anxious to enjoy the advantages of good government, and several of the principal chiefs have stated that they see that so long as the duties of Customs are the payment made to the Government so long will the wealth of the Government depend upon their being rich enough to buy clothing and articles of luxury; that it will thus be the object of the Government to see them wealthy, and they, therefore, entertain no fear of their lands and property being taken from them." 24

The only real grievance of which the natives had cause to complain was the inability of the Government to buy their land, which the Government were bound by the treaty to do whenever it should be offered at a fair price--that is, such a price as they were accustomed to receive from the settlers before they bound themselves by the terms of the treaty to sell no more land, unless to agents appointed by the Queen to treat with them for it. But the natives at the Bay of Islands, so far from complaining of this, had entered into a league to put any native to death who should offer to sell land. It was otherwise at Auckland, where, as Governor Fitzroy informed the Secretary of State, the natives were clamorous to sell land; but there was an "absolute inability on the part of the Government to enter into new purchases of land, having neither funds nor articles of trade, nor authority to draw on the home Government." 25

"At the first meeting held with the natives at Waimate, in the Bay of Islands district, after the cutting down of the flagstaff, no complaint was made of the Customs, or any allusion to them by any of the twenty-four chiefs who spoke in reply to

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the Governor's address, but the very first chief who spoke expressed himself as follows:--

"'PAKIRAU, --I have but little to say indeed, only be kind; our troubles are about the land; natives will not mind anything but the land. Be kind to us; we cannot prevent the evil that occurs, but we will try and promote the good; the person who will be good, he will be good and do good--the missionaries are good; and when any one does wrong, I will take my stand to prevent it.'" 26

In writing to the Secretary! of State on the 15th October, 1844, a few weeks after that meeting, Governor Fitzroy thus expresses himself:--

"I am bound to inform your lordship that the measures adopted towards the earlier settlers who had really acquired tracts of land by fair purchase tended to much harm. Those speculators who had bought many thousands, nay, millions, of acres never could have substantiated any claim, because they never had made valid purchases; but there were many whose purchases seemed large on paper, however valueless much of their land might be, who had fairly acquired a few hundred, or a few thousand, acres of land with the full consent of the aboriginal owners, and these persons not only suffered much from delay, expense, uncertainty, and inability to make any progress during three years, but the natives who sold them became exceedingly irritated, taking up their cause and saying, "If the Queen acts thus towards her own people, what will she do to us?' The interference, for instance, with Mr. Fairburn's property, however necessary in his case, raised a commotion among the Waikato tribes, which caused great alarm, but was hushed up, although they were then so irritated as to be on the point of rising against the local Government; and they are the most powerful tribes in New Zealand. While it was the object of the Government to raise as much money as possible by the sale of the lands, irrespective of the real interests of the settlers and the colony, it was of course an object to take as much as possible from the old settlers with the view of those lands (not reverting to their original owners, but) becoming disposable for sale by the local Government.

"Such a step as selling those 'excess lands' was happily never attempted, however generally contemplated. The natives would never have allowed it to take effect; and the attempt to do so would have injured the character of the Queen's government very seriously, if not irretrievably, so tenacious are the

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natives of what they consider to be strict justice. As yet it is quite impossible to make them comprehend our strictly legal view of the cases."

Then as to the effects upon the progress of the colony, he states in continuation, that--

"Owing principally to these causes above-mentioned, there was a great stagnation in the colony, after the first two years of excitement had passed. The public revenue diminished rapidly. Trade diminished because there were then neither exports nor funds. People lived on the remains of whatever capital or property they had not expended. No titles to land were issued; the feelings between the two races were not only questionable, but becoming less satisfactory. 27

Under these circumstances Governor Fitzroy adopted two measures. The first was to issue grants to the early settlers, without waiting for the survey of their land; the second was to waive the Queen's right of pre-emption over certain portions of land, and allow individuals to purchase from the natives, to a limited extent, such portions of land as the natives might be anxious to sell. Deeds were accordingly prepared, granting to the early settlers the land comprised within the boundaries specified in the Commissioner's reports, estimated to contain, "more or less," the number of acres to which in each case the party was stated by the Commissioner to be entitled, according to the scale of expenditure fixed by the Land Claims Ordinance; and the parties were earnestly urged by the Governor to have such boundaries surveyed and registered, in order to prevent future disputes. But such was the distress in the colony that Governor Fitzroy stated that 400 of these grants were suffered; to remain in the hands of the Government, from the inability of the parties entitled to them to pay the fees.

The privilege offered of being allowed to purchase direct from the natives was taken advantage of by about 200 persons, to the extent in all of about 100,000 acres. The consequence of these measures was a perfect storm of complaints from the settlers of the New Zealand Company and its agents. These settlers had emigrated under the fallacious views maintained by Mr. Gibbon Wakefield, that it was possible to create an artificial price of land by preserving a due proportion between the labourers sent out to the colony and the capital invested in the purchase of land. These settlers were taught to look to an increase in the value of their investments by an increase in the

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number of the settlers, rather than to the returns which the land was capable of making for the capital invested in its cultivation, which is the only standard by which the exchangeable value of lands, as well as of all other commodities, can be measured. A very numerously signed memorial was accordingly sent to the Secretary of State, complaining of the recognition of the titles acquired by the first settlers, and the permission to purchase direct from the natives in the North as a grievous injury and injustice to themselves. These complaints were reiterated and pressed upon the Secretary of State with every ingenious aggravation by the Directors of the New Zealand Company at home; 28 but it was probably less owing to these measures than to his financial arrangements that Governor Fitzroy owed his recal, Lord Stanley, with a generous appreciation of the difficulties of his position, having given his sanction to the waiver of the Queen's pre-emption, although disapproving of it, and directing that it should be discontinued as soon as circumstances might make it advisable to do so. But Governor Fitzroy appears to have himself attributed his recal to the hostility and misrepresentations of parties connected with the New Zealand Company. 29

In one of his first despatches after assuming the government, Governor Grey makes the following statement to the Secretary of State:--

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

"I have agreed to receive upon Thursday next, the 27th instant (November, 1845), a deputation of the principal chiefs, who are anxious to address me upon the subject of their lands, and upon the state of affairs generally. I shall not hesitate at once to relieve their apprehensions regarding their lands, by assuring them that Her Majesty has directed me scrupulously and honourably to fulfil the conditions of the Treaty of Waitangi."

But, as the Protector of Aborigines observed in a passage previously quoted, "The New Zealanders are a people who will be better convinced by practical illustrations of the intentions of Government than by lengthened discussions;" and it will appear in the sequel whether the practical illustrations afforded by Governor Grey in his treatment of the original settlers, who bought land before New Zealand became a British colony, and of those who availed themselves of the waiver of pre-emption by Governor Fitzroy to buy land, were more calculated to relieve their apprehensions, or to confirm the distrust and suspicion under which they laboured.

In yielding to the pressure of difficulties which beset him, Governor Fitzroy, by authorising purchases of lands from the natives by individuals, provided that no Crown grants should be issued until at least twelve months had elapsed from the receipt in the Colonial Secretary's office of certified copies of the surveys and deeds of sale, which were to be made at the expense of the purchaser; and "that all transactions with the sellers, all risks attendant on misunderstandings, on sales made improperly, or incomplete purchases, must be undertaken by the buyers until their respective purchases have been allowed and confirmed by grants from the Crown."

With these and various other precautions against compromising the Government in any disputed title, and with the further provision that one-tenth of the land purchased, of fair average value, should be conveyed to the Crown for public purposes, "especially the future benefit of the aborigines," and with the

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reserve of the right of making roads and bridges through the land, Governor Fitzroy undertook to issue Crown grants for certain limited portions of land which should be purchased under the authority of a certificate waiving the Crown's right of preemption; and to bind the faith of the Crown to the parties who should thus invest their money, he issued a proclamation "under the public seal of the colony." The extent of the land thus purchased was about 100,000 acres, the number of purchasers about 220. The earliest date at which a certificate was issued was the 14th October, 1844; the latest, 17th November, 1845, shortly before Governor Grey assumed the Government; so that, according to the conditions of the proclamation, it was not in Governor Fitzroy's power to complete in any case, by the issue of grants, the contract which, on the part of the Crown, he had entered into. These transactions having been reported to the Secretary of State, Lord Stanley instructed Governor Grey, while expressing dissatisfaction with the arrangement, "that he would of course recognise any sales which he (Governor Fitzroy) may have sanctioned under his last proclamation, reducing the fee to one penny an acre." 30 On the 9th June, 1846, Governor Grey, in a despatch to the Secretary of State, 31 represents the "concessions" thus obtained from his predecessor as having "been obtained by the most improper means," refers to a statement that a number of persons had subscribed a large sum as a reward for whomsoever should do most towards stirring up and informing the natives how to act together on this subject; and as he considered it "reasonable to suppose that the agitators for these concessions were those who most eagerly availed themselves of them, he regretted that they should have been so largely rewarded for such conduct, if indeed they are ultimately allowed to retain these lands." He described these concessions "as unjust and oppressive to Her Majesty's subjects of both races." He stated "that the settlers in the Southern districts were indeed most cruelly injured by this regulation;" and he says, "I feel, further, a great reluctance to be in any way concerned in inflicting upon the Southern settlements the injury which I see is likely to overtake them." 32 In reply to a memorial from forty-five of the purchasers, stating that "the lands purchased by them were now in their possession, many of them having expended large sums of money, and were carrying on improvements on the same," in which they disavow in the strongest terms having evaded the regulations, or having excited the natives on the Crown's right of pre-emption, or having been

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aware of any person who subscribed money for that purpose-- they entreat "the institution of such an investigation as may be sufficient to satisfy his Excellency should he entertain the shadow of a doubt as to the accuracy of their declaration"-- and that, "feeling the injustice of dealing with their property on an assumption of the truth of that which is undeniably incorrect," they pray that his Excellency will, "in conformity with the Secretary of State's permission, grant that title to their lands which was promised to those who purchased under the authority of the proclamation of 10th October, 1844." 33 Governor Grey informed the Secretary of State that he "did not comply with either of their requests;" and, inter alia, he made the following statement to the memorialists:-- "I am fully satisfied that the great majority of the inhabitants of this portion of New Zealand will in no way connect themselves with proceedings which, looking to the fearful calamities they will eventually entail upon Her Majesty's subjects of both races, cannot but be viewed with horror by the whole civilised world." 34 The "proceedings" which were to produce such fearful effects were neither an offence known to the laws of the country nor against morality, but a question of policy, if not a question, under the circumstances, of simple justice to the natives, as relieving them from the consequences of the inability of the Government to fulfil the conditions of the treaty of Waitangi; and, so far from causing injury, proved, in fact, the means of averting from Auckland the insurrection which occurred at the Bay of Islands. A similar agitation was subsequently openly advocated by a leading member of the Assembly; and, finally Sir George Grey gave his assent to an Act which enabled the natives to make sales to private individuals not of "a few hundred acres," but of all the territory over which the aboriginal title had not been extinguished, extending to nineteen or twenty millions of acres. Earl Grey, who had now become Secretary of State, instructs Governor Grey, under date the 11th February, 1847, that "to whatever extent the faith of the Crown is thus pledged to the purchasers, it must be maintained inviolate, be the consequent inconvenience what it may." 35 This, however, was subject to its being shown, by a previous searching investigation in each case, that the conditions of the proclamation had been fully complied with. But already, on the 15th December preceding. Governor Grey had seized the lands into the possession of the Crown, and had issued a public notice in the Government Gazette inviting parties who might be desirous of relinquishing

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their claims to the said land, on receiving a Government debenture for the amount of their disbursements, to give notice of such intention; and warning them that "if they should attempt to enter into occupation, or take actual possession after that date, they would be proceeded against in due course of law." 36 To those who declined to comply with this proposition, he offered a grant of five hundred acres, on the payment to the Crown of 5s. an acre, in addition to the price paid to the natives. "Any title which the claimant may have acquired over the remaining portion of the claim to remain in the Crown;" or to abide by what he called "the provisions of the instructions of Her Majesty's Government." But in no case was the public faith kept to the parties, as pledged in the proclamation under the seal of the colony by Governor Fitzroy, and enjoined by two successive Secretaries of State, upon his successor in the Government. Some cases were of so extraordinary a character that they would not be believed on any evidence but such as was incapable of being misunderstood or contradicted.

In an address delivered at the table of the House of Representatives on a petition against the provisions of the "Land Claims Settlement Bill, 1856," which was afterwards published, a reference was made to two cases, in the following words:--

"Honorable members from the South can, I believe, have little idea of the cruelty with which some persons who bought land from the natives, under the authority of Governor Fitzroy's waiver of the right of pre-emption, have been treated. I myself know but little of them; but the few cases which have come to my knowledge would not be believed--they would be incredible, if the truth was not forced upon us by the authority of official documents. I do not feel qualified to enter into a general view of these cases; but I must beg the indulgence of the House in referring to a case which only came to my knowledge during my present visit to Auckland. My landlady brought me some papers which I found to relate to a purchase of land, on a preemption certificate, by her late husband. There was a copy of a letter to the Governor, written by her husband from his deathbed. It stated that his hours were numbered; and it implored the Governor to give him before his departure the comfort of an assurance that at least a portion of the land which he had purchased under the authority of his predecessor, Captain Fitzroy, would be given to his widow and children: he would be satisfied with only a portion. Well, sir, the House will be

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prepared to hear that the draconic refusal was his death-knell. It was not so: he was spared that pang. 'I took,' said the poor woman to me, 'I took the messenger in, and showed him my husband in his coffin, and then desired him to go back and tell the Governor what he had seen. After a time I called upon the Governor myself, and asked him if there was no hope of my getting any part of the land. He replied, none whatever; that, in fact, I had no right to have those title-deeds; that Governor Fitzroy had no right to allow my husband to buy that land.' Now, sir, we who have access to the Parliamentary Papers know that these were false pretences. There was nothing wanting in these transactions to constitute a perfect contract, such a contract as the judicature of every civilised country would have enforced in the case of private persons. Even if Captain Fitzroy had mistaken his duty, nothing but a fraudulent collusion between himself and the parties in whose favour he waived the right of pre-emption could dissolve the obligations which the Government had incurred. They were binding on the national faith. And we also know, sir, that at the time Governor Grey dealt thus cruelly and deceitfully with this poor widow, he was in possession of despatches from two successive Secretaries of State--Lords Stanley and Grey-commanding him, and reiterating the command, that' the 'public faith must be kept with these persons, at whatever inconvenience' Sir George Grey told her he could do this for her: he could order that her money should be returned to her; and she at last consented to receive back the money--135l. --which her husband had paid for the land nine years before. Not a shilling of interest was paid for the use of it, although the Government was paying interest for the use of money all that period; and Sir George Grey himself, as I have been told, was receiving 8 per cent, on Government debentures. Now this bill would afford no compensation whatever to this woman for so gross a violation of her rights.

"There is a case of another widow, which was published and animadverted upon in the newspapers of the time, in terms which were a public scandal to the colony. I hold it for certain, sir, that not a man in England could be brought to believe that such transactions in their literal truth could have occurred in the nineteenth century and under the Queen's dominion. This woman states, in her memorial to the Legislative Council, that in order to purchase nine and a half acres of land, which Captain Fitzroy authorised her to purchase as a provision for herself and seven children, she sold her trinkets and her watch.

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The public Gazette of the colony, issued under the authority of Governor Grey himself, informed the public that the title thus acquired had been investigated by the Commissioner appointed to that office, and found valid, and that a deed of grant was in preparation for 9 acres, 3 roods, and 25 poles. 37 In the meantime, however, it would appear that Sir George Grey had discovered that this piece of land was, from its locality, extremely valuable; so he caused a grant to be made out for the widow for 1 acre, 1 rood, 35 poles, and ordered a letter to be addressed to her that the grant for that quantity was prepared, and fees to the amount of 2s. 6d. due upon it; and that unless these fees were paid within one month 'the claim would be disallowed, the grant cancelled, and the Surveyor-General directed to take possession of the property.' The remainder of the land was sold by public auction, and the proceeds of it received into the public treasury. Is it possible, sir, that a Christian Legislature can adopt and identify itself with such a transaction as this, by refusing redress to this poor widow, so cruelly and fraudulently despoiled of her property? But the provisions of this bill would prevent the Commissioners from even taking cognisance of either of these two cases; and there are many cases in which individuals have received similar treatment."

There was the case of a third widow, which was on several occasions brought before the House of Representatives. This was a native female, who had been married to a person named Meurant, who had been in the employment of the Government as interpreter. She belonged to a tribe of natives who had sold a great part of the land surrounding Auckland to the parties who obtained a waiver of the Crown's rights of pre-emption, but who, before parting with all their land, settled thirty acres of it on Mrs. Meurant, the wife of the interpreter, "as a marriage portion, and for the support of her children." This portion, from its near vicinity to Auckland, was of considerable value; and it did not escape the notice of Sir George Grey that, by reason of the woman's marriage, the title vested in her husband according to English law; and this being the case he seized it also, and sold the greater portion of it--twenty acres out of the thirty. Had the native woman been living with Meurant as his concubine she could have continued to hold her land under the aboriginal title. But the land was seized as the consequence of her marriage, in conformity with the clauses of the Land Claims Act, that all titles to land held by British subjects, not confirmed by a grant from the Crown, were

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void, and that such land vested in the Queen as demesne of the Crown. 38

All these proceedings of the Government were watched with intense interest and jealousy by the tribes nearest to Auckland; but in addition to the inferences they could not avoid drawing as to the intentions of the Government towards themselves, from the treatment the settlers met with at its hands, they had another and more direct cause of alarm in the provisions of the charter of 1846, and the instructions of the Secretary of State respecting it. Earl Grey assumed that as for nearly three hundred years, by the general consent of the colonising nations of America, the right of the aborigines to the soil of that continent could not be recognised as a bar to its settlement by the civilised nations of Europe, the same principle should apply to the case of New Zealand, so far as it might be found to be consistent with the obligations of the treaty of Waitangi. It was maintained by a majority of the Committee of the House of Commons which sat upon the affairs of New Zealand in 1844, of which Earl Grey, then Lord Howick, was chairman, that these obligations could not extend to the whole of a territory nearly as large as the British Islands, inhabited by a population not exceeding 100,000 people. As an abstract question, the principle laid down by Earl Grey is incontrovertible. The command of the Creator was to all the family of Adam that they were to "increase and multiply and replenish the earth and subdue it." "The earth is the Lord's and the fulness thereof." It is from these divine revelations, and from the light of reason in their application, that such principles as are quoted by Earl Grey from the writings of Dr. Arnold, and are to be found in writers on the law of nations, derive their authority. "The people of Europe," says Vattel, "too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it and settle it with colonies." To have denied this title would have been to place a veto on the command of the Creator to replenish the earth and subdue it. But this abstract title was overruled in the case of the New Zealanders by their recognition by the British Government as "a substantive and independent State;" by the admission that

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their "title to the soil and sovereignty of their country was indisputable, and had been solemnly recognised by the British Government;" and by the provisions of the treaty founded upon the admission of these obligations, of the true signification and purport of which there could be no doubt on the part of those by whose instrumentality and influence with the natives the treaty was negotiated. It was well known to them that there was no part of New Zealand which was not claimed in property by one or more of the tribes; and that whatever disputes they might have amongst themselves as to the boundaries of their tribal possessions, they would have united in repudiating with the utmost scorn the claim of any foreign nation to assert a title to take possession of any portion of the country on the ground of defective title, or on any other ground whatever. There remained, therefore, only two alternatives-- namely; to conquer the country, or, to treat for the sovereignty. To withdraw the settlers from it was impossible. The endeavours of the Government to establish and maintain a nationality in favour of the natives, and to prevent the occupation of their country by British subjects, had signally failed. They seemed to afford another proof of the fulfilment of that prophecy-- "God shall enlarge Japheth, and he shall dwell in the tents of Shem, and Canaan shall be his servant." The colonies of America were founded upon the assumption or pretension of conquest; but the New Zealanders would have submitted to no such assumption or pretension, even had the previous recognition of their independence not debarred the British Government from proceeding upon it. When, therefore, the Governor was instructed to require the chiefs to register their titles in order to their investigation by a land Court, and that "no claim shall be admitted in the said land Courts on behalf of the aboriginal inhabitants of New Zealand to any lands situated 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,"

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these proceedings were looked upon by the natives as the first step towards the abrogation of the provisions of the treaty, and the seizure of the land, and occasioned much alarm to the settlers. The Bishop of New Zealand sent to the Governor, and requested that it might be forwarded to the Secretary of State, a protest in his own name and on behalf of the clergy, whose influence had induced the natives to agree to the treaty, against the principles affirmed in Earl Grey's instructions. A petition from the principal inhabitants of Auckland, headed by the Bishop and the Chief Justice, was also forwarded to the Queen, praying that the Treaty of Waitangi might be maintained, and that the instructions which were inconsistent with its provisions might be abrogated. The chief Te Whero Whero, afterwards "King Potatau"--whom Governor Grey described as "the most influential chief in New Zealand, and as a most excellent man and a faithful subject of Her Majesty "--with Other chiefs of Waikato, addressed a letter to Her Majesty, expressing their alarm at the news that "it was intended to take away the lands of the natives without cause;" and praying that "she would be gracious to them," and "write to them her thoughts, that peace may prevail among the natives of these islands." And Archdeacon Maunsell, who had been employed to obtain the adhesion of these chiefs to the treaty, wrote to the Governor an energetic letter of remonstrance, representing "the growth throughout the native community of a very dangerous feeling." "Our people," he says, "now ask us. Why is the treaty of Waitangi thus virtually broken? Why, for the sake of a few useless spots that could have been purchased for a comparative trifle, is a train laid for involving the whole island in a flame? 39 In forwarding the protest of the Bishop, Governor Grey states that "he was inclined to think that the amount and probable effect of the excitement had been much over-rated," and that he thinks he is "justified in stating that a greater amount of tranquillity and prosperity at this moment prevails throughout the whole of New Zealand than has ever hitherto existed." On which the Bishop has the following remark in a letter addressed to the Governor, dated August 1, 1848:--"If, then, on that particular 7th July, on which your Excellency's two despatches and my protest were forwarded, there was no existing ground for apprehension, that day can only be looked upon as a happy interval of repose, preceded and fol-

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lowed by fears on the same subject and in the same quarters." 40 In the same letter, the Bishop eloquently remarks that "it may be possible in England to be satisfied of the 'unsubstantial nature of the grievance with which the natives are threatened,' but we who have seen the English flag contemptuously cut down, and a town sacked in consequence of these suspicions, are forced to believe that if the grievances are not substantial in themselves, at least they have a real existence in the minds of those who believe themselves to be aggrieved. They know of our dealings with other native races, and would ask at once in their own figurative language whether it be the shadow or the substance of a grievance which depeopled Van Dieman's Land and Australia." But the causes for the alarm of the natives as to the treatment that awaited them were not confined to the seizure of the lands purchased by individuals under the authority of Governor Fitzroy, nor to the publication of the charter and the Secretary of State's despatch. The agents of the New Zealand Company and their settlers had, in their memorial to the Secretary of State, not only denounced the waivers of pre-emption, but also the grants made by Governor Fitzroy in excess of the limit of 2560 acres, as being illegal and unjust to the Company's settlers, who had paid to the Company 20s. and 30s. an acre for their land. In a confidential despatch to the Secretary of State, which was communicated to the Church Missionary Society, and afterwards found its way into an Auckland newspaper, 41 Governor Grey forwards a list of the individuals who had received grants in excess of 2560 acres. He states that "they include amongst them those connected with the public press, several members of the Church Missionary Society, and the numerous families of those gentlemen," &c. "The total number of individuals in whose favour these tracts of land are claimed may be stated at from forty to fifty. For the reasons stated in my public despatches, I feel myself satisfied that these claims are not based on substantial justice to the aborigines, or to the large majority of British settlers in this country, Her Majesty's Government may also rest satisfied that these individuals cannot be put in possession of these tracts of land without a large expenditure of British blood and treasure." There were other observations warning the Government as to the effects of the unprecedented hardships to which the troops would be exposed, and the indisposition of the officers

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and men "to undergo such fatigues, to put those whom they would regard as mere speculators in possession of lands wrested from a race who have many qualities which excite a soldier's esteem," &c. On the appearance of this despatch a petition was sent to the Queen, signed by twenty-three of "the sons of the missionaries and catechists of the Church Missionary Society, born, educated, and settled in your Majesty's colony of New Zealand." 42 The following are extracts from this petition:-- "That your Majesty's petitioners have seen with equal sorrow and astonishment a despatch from his Excellency Governor Grey, dated 25th June, 1846, to your Majesty's principal Secretary of State for the Colonies, conveying imputations upon their character and conduct which are not more at variance with truth than injurious to your Majesty's petitioners, who are therein, with others, designated by Governor Grey as a 'party,' who, he states, 'cannot be put in possession of the lands they claim without a large expenditure of British blood and money,' whereas your Majesty's petitioners would shrink with horror from the possession of any property for the acquirement of which such means should be necessary." "That some of them have been in occupation of their lands for twelve years and upwards, and that these lands were purchased for them by their parents long before New Zealand became a possession of your Majesty's Crown; that their titles were investigated by Commissioners specially appointed for that purpose in your Majesty's name; and having been not only undisputed, but proved by the testimony of the original sellers to have been acquired on equitable terms, were so reported by the said Commissioners accordingly, and finally confirmed by the issue of grants from your Majesty to the parents of your Majesty's petitioners; that though these lands are located in the midst of the tribes that were in rebellion, your Majesty's petitioners continued in the occupation of them during the war unmolested and undisturbed, although, according to their several circumstances and situations, your Majesty's petitioners rendered the most active assistance to your Majesty's Government in putting down the rebellion, not shrinking from the most dangerous services, one of their number having been severely wounded while acting as interpreter to the commander of the forces at the assault of Ohaeawaia; their oxen, drays, and boats having also constantly been employed in the services of your Majesty's forces . . . . . .

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"Your Majesty's petitioners cannot, therefore, but lament that Governor Grey should have made representations to your Majesty's confidential advisers so repugnant to the truth, and so injurious to their reputation, as that the lands, for which were paid ten times the price per acre which was subsequently paid for lands purchased by the Colonial Government, should be considered as wrested from the natives, or that such purchases should not be based on substantial justice to the aborigines, or that they should require to be put in possession of them by 'a large expenditure of British blood and money.'

"That the sons and daughters of the missionaries and catechists of the Church Missionary Society settled in this country, for whom the lands occupied by your Majesty's petitioners were purchased, amount in number to 128--some of them being married and having families--that the average extent for each individual, not including the children of such as have families, does not exceed above 500 acres, good and bad together; whereas in the neighbouring colony of New South Wales it was customary, at the time some of these lands were purchased, for the Government to endow the sons of the colonial chaplains with a free grant of 1920 acres, and their daughters with 1280 acres . . . . . . .

"That, born and educated, as they have been, amongst them ('their aboriginal fellow-subjects'), and intimately acquainted as they are with their sentiments and feelings, your Majesty's petitioners would fail in their duty to your Majesty were they not humbly to represent that their aboriginal fellow-subjects look upon these proceedings as only the prelude to an attempt to dispossess them of their own lands, and as a confirmation of the suspicions universally excited by the late despatch of Earl Grey, dated 23d December, 1846, that the solemn treaty negotiated, by your Majesty's authority, with the chiefs and people of this country, and ratified by your Majesty, will be no further regarded than as it may suit the purposes of the individuals who, for the time, may represent your Majesty among them."

These documents, having been referred by Earl Grey to Governor Fitzroy in England, he made the following observations in relation to the lands purchased by the missionaries:--

"With respect to the Church of England missionaries' claims to land in New Zealand, I may here, in passing, state

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my own conviction, that those claims will not 'give rise to native wars' or 'disputes between the Government and the natives,' unless the Government attempt to dispossess the legitimate and undisputed owners of those lands--namely, the missionaries and their numerous children, some of whom are married and have families. The natives have remarkably strong feelings of attachment to the older missionaries and their children. They care little for the clergymen who have been only a few years in the country. They do not consider them as belonging to themselves." 43

In August and November, 1847, representations were made to the Government by a private gentleman that no less than six murders had been committed by natives upon natives in the Northern parts of New Zealand, and on the necessity of the Government taking some steps in the matter, on which representations the Governor commissioned an officer of the 58th Regiment, serving in New Zealand, to visit the Northern districts to inquire into the circumstances connected with these murders. He was also instructed to inquire into any real grievances of which the natives may complain. "Two subjects," it is stated in his instructions, "will probably be frequently brought forward by the natives in their discussions with you:--

"1. The subject of the reports now in circulation regarding the intentions entertained by the Government of depriving them of their lands.

"2. The intentions of the Government with respect to the large tracts of land claimed by some few members of the Church Missionary Society, and the grounds upon which these intentions are baed.

"Upon the first of these points it may be sufficient to state that the Governor is, by Lord Grey's despatch of the 23d December last, directed scrupulously to fulfil whatever engagements he may have contracted, and to maintain those rights, on the part of the native tribes, to land which he may have already recognised."

No mention is made of the provisions of the Treaty of Waitangi. What engagements Governor Grey might have contracted, or what rights he might have recognised, it would be difficult to ascertain; and it would be much more difficult to show what such maintenance of engagements, or recognition of rights, had to do with the question. The rights of the natives rested upon the treaty of Waitangi, which no proceedings of the Governor had power to affect or to annul, so long

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as the natives were true to the engagements they had entered into by it. The instructions go on to say:--

"In reference to the subject of the land claims of some few members of the Church Missionary Society and others to the Northward, your answer should be, that the Government believe that the lands claimed by these individuals are so claimed in violation of the just rights of Her Majesty's subjects, native and European; that they are believed to be, in all instances, illegal, and contrary to the awards of the Commissioners who were appointed by the Government to hear those claims; and that the Government can now only interfere, in as far as the law permits, to protect the just rights of those individuals whose land may be so claimed." 44

In the report of the proceedings of this officer it is nowhere stated that the subject of the missionary or other land purchasers in the North was "brought forward" by the natives in the way of complaint. Indeed, the only allusion to the subject is reported as having occurred at the first settlement they visited. "We arrived in the harbour of Mongonui on the 29th (Nov. 1847), and from thence proceeded to the settlement of the influential chief 'Noble' at Oruru, about six miles distant from Mongonui. Noble received us with much civility, although he told us that he had been informed by a European whom he named, 'Henri Poto,' who had translated an article out of a newspaper to him, that the Queen was going to take away, first, the lands of the missionaries, and then the lands of the natives. We asked Noble if he believed these reports: in reply he said:-- 'I will wait until I see the Governor take some land, and then I will believe.' We told Noble that, with regard to the natives, the Government had no intention of depriving them of their lands, and with respect to the missionaries, that it was in contemplation to take away a portion of land from individuals who had procured it from individuals in larger quantities than they could use, to the exclusion of other Europeans, and reserve the portion taken away for the use of the natives. This proposition he pronounced to be perfectly just." 45 In September, 1847, Governor Grey himself visited the Bay of Islands, and appears to have taken every opportunity of exciting the natives against the missionaries. He said to Tamati Waka:-- "I shall fight with the missionaries to return a portion of the land to the natives; we shall have a paper war." Waka repeated this

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conversation to various parties at Russel. A sawyer named Thomas Joyce, who was employed in cutting timber on land belonging to the Church Missionary Society, addressed the following letter to George Clarke, Esq., the local Secretary to. the Mission:--

"Waikuku, December 14, 1847.

"I am annoyed by some natives belonging to Uritanewa, Ruhe, his brother, and others, a few days since, they being employed by me to roll some logs. They threatened me without cause, and also said that I should not saw any more timber on that ground; that they intended to speak to the Governor, and get the land and timber back from the Mission. I told Ruhe that the Governor would not listen to him in sunjust a cause; but he said he would pay all attention to anything he said; that all they had to do was to oppose white people's claims; that he (the Governor) would give them back their land. We were assured of it, because the Governor did tell us so." 46

These instances, which are extracted from voluminous details of similar instances, would seem to demonstrate that, if it had been the intention of Governor Grey to destroy in the minds of the natives all trust in the uprightness of the Government, he could have taken no more effectual means to accomplish that end.

Having failed in his attempts to obtain possession of the grants issued by his predecessors to the missionaries, through me intervention of the Bishop and the Church Missionary Society, Sir George Grey selected two cases, in which the terms of the grants were most irregular, and instituted proceedings by scire facias in the Supreme Court, to try their validity. But both grants were upheld by the judges on the ground that these irregularities did not proceed from any deception or misrepresentation on the part of the grantees. In one of these cases an appeal was carried to the Privy Council on the petition of the local Attorney-General, and the judgment reversed. 47

But, without waiting for the decision of the Privy Council,

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Governor Grey passed an Ordinance 48 to quiet the titles which these proceedings had disturbed, and to make provision for settling claims where no boundaries were stated. The grants which were described by definite metes and bounds--that description applying to all the lands of the missionary families and of nearly all the first settlers in the North--were declared to be good and valid; and provision was made for ascertaining by actual survey those portions of land belonging to other parties which were not described by metes and bounds in the grants issued to them. This act was approved by the Queen; and thus the agitation produced by Governor Grey's interference with the grants of his predecessors, confirming purchases which had been made on equitable conditions from the aboriginal owners during the three years preceding, was, for a time, brought to a close. With regard to the purchases made under the authority of the proclamation waiving the Queen's right of pre-emption, Governor Grey took a course which was well qualified to destroy the confidence of the public in the Queen's Courts of Justice, as it previously had been destroyed in the person of the Queen's Governor,

On the 5th July, 1847, Governor Grey addressed the following despatch to Earl Grey:--

"In reference to my despatch. No. 42, of the 19th April last, in which I reported that I had directed steps to be taken with a view to obtain the decision of the Supreme Court upon the legality of the course pursued by my predecessor in waiving the Crown's right of pre-emption over large tracts of land in favour of specific individuals, with a view of ascertaining whether these individuals had, by such alleged waiver of the Crown's right of pre-emption, acquired any legal rights which they could require the Government to recognise and enforce, I have now the honour to enclose copies of the opinions of the Judges of the Supreme Court to the effect that the waiver of the Crown's right of pre-emption was illegal and void. I

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believe that this decision has had the effect of convincing the whole of the claimants, under similar waivers of the Crown's right of pre-emption, that they have acquired no legal rights by such waiver, and that I could not legally issue the grants which they have been so anxious to obtain. I have, "&c. &c. 49

This is altogether a misrepresentation. The steps taken were not, as Sir G. Grey states, "to obtain a decision upon the legality of the course pursued by his predecessor," but to ascertain whether a grant made by Sir George Grey, in the name of the Queen and under the Seal of the Colony, was better evidence of title than a certificate of pre-emption under the hand of the Colonial Secretary, together with the native title acquired under the authority of that certificate. The true case brought before the Court is thus stated in the words of Mr. Justice Chapman:--

"This case comes before the Court upon demurrer to a declaration in a suit of scire facias, whereby the party suing out the writ seeks to set aside a grant from the Crown made under the public seal of the colony to the defendant, on the ground that the claimant has a prior valid title to the same land by virtue of a certain certificate, whereby it is alleged the late Governor waived in the present claimant's favour the Queen's exclusive right of acquiring the land in question from the natives.

"The question which this Court has to determine is, did the claimant, Mr. C. Hunter M'Intosh, acquire by the certificate and his subsequent purchase (admitted to have been in all respects fair and bond fide) such an interest in the land against the Crown as invalidates a grant made to another subsequently to the certificate of purchase."

To enable him to raise this issue Sir G. Grey availed himself of the agency of two public functionaries. To one of these, Mr. C. Hunter M'Intosh, Sir George Grey's predecessor in the Government, had pledged the faith of the Crown by a proclamation, sealed with the public seal of the colony, that he would issue to him a grant of a certain piece of land on condition that he should make a bond fide purchase of it from the aboriginal proprietors, which bond fide purchase had been accomplished and was admitted. To another public functionary, Mr. John Jermyn Symonds, Sir George Grey issues a document in the name of the Queen, and sealed with the public seal of the colony, purporting to convey a grant of the same piece of land to him; and he asks the Queen's judges to decide in the Queen's Courts whether an act thus avowedly done in flagrant

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violation of the public faith is not more legally binding than the obligation of a contract, which on one side had been fulfilled, and which the Crown had solemnly engaged on such fulfilment to complete. The judges could do no otherwise than decide that the Crown grant, "the best and highest title upon which a subject can rely," could not be set aside by a promise of a Crown grant; that a deed duly executed and authenticated could not be set aside by a previous promise inconsistent with it. How far the statute of frauds might have dealt with such a case had it occurred between private individuals is another question; but in this case, as one of the judges indicated, the remedy was not of that nature, but by a petition of right--a mode of redress far beyond the reach of any of the parties aggrieved.

It is true that both judges did incidentally express an opinion that in waiving the Queen's right of pre-emption Governor Fitzroy had exceeded his authority; but this point was not judicially decided. On the other hand, Lord Stanley expressly agreed with Governor Fitzroy "that no infringement of the Land Sales Act will take place by the present measure, as that Act applies only to lands vested in the Crown, whereas the lands affected by those regulations are native property." 50 In a subsequent despatch, dated 15th August, 1845, Lord Stanley instructs Governor Grey to waive in favour of the New Zealand Company the Crown's right of pre-emption over certain lands in the Southern Province. 51 And Governor Grey did so accordingly, by a proclamation dated 21st February, 1846. 52 The question is not, in fact, a question of strict law. But whether the Queen's representative, acting in the name and on the behalf of the Queen, had power, on grounds of public policy, to relax or modify the conditions of a treaty in favour, not of the Queen, but of the weaker party. The legality of such a power, exercised in good faith, was probably never made the subject of question in a Court of law, as it seems to be one which a subject could not raise.

In concluding his judgment the Chief Justice (Martin) used the following significant words:-- "Of course we in this place have nothing to do with any question except the bare legal question of the existence or nonexistence of a legal right and title in the claimant. It may also be proper to remark that this judgment does not affirm the absolute validity of the grant to the defendant. It decides this

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only, that the grant cannot be set aside on the grounds which are set forth on the record." In another part of his judgment, the Chief Justice refers to the grant as being "wholly unimpeached." Had the action been bona fide between the parties, there can be little doubt that counsel would have impeached the grant, on the ground that "the Queen had been deceived in her grant;" and, looking at all the cases cited in the books of authority on the Queen's prerogative, there is little doubt that the grant would have been declared null and void on that ground. It was by such transactions as these that the natives were to be educated in the knowledge of British administration, and taught to place their trust in the Governor's assurances that it was not intended to deprive them of their lands. Considering that for twenty years they had been imbibing the doctrines of Christian morality from their "one book," the Bible, ought it to excite surprise that they had come to regard the Government with "incurable suspicion?"

Sir George Grey's first administration of New Zealand came to an end in 1853, immediately before the introduction of representative institutions. His conduct in reference to the seizure of the settler's lands, and especially that of the Widow Forbes, had been indignantly denounced in the Provincial Council of Auckland at its first meeting. One of the last of his acts was to send a Commissioner to treat with the natives of the Wangarei district for the sale to him of a tract of land, which belonged to the member of Council who had characterised his treatment of the Widow Forbes as "an atrocious transaction." A young chief of that district who happened to be in Auckland was sent for by Governor Grey, and told that he was to accompany the Commissioner who was going to purchase the land. The young chief gave the owner of the land the following account of the interview, which was taken down at the time, and afterwards read to the House of Assembly in an address on the "Land Claims Bill of 1856," which address was published after its delivery. The young chief, whose name was Poukoura, had been one of thirteen youths belonging to the principal families who sold the land who had been sent to perambulate the boundaries with the purchaser, in order to point out the different places named in the deed of transfer, and put him in possession. "I was led," said he, "into the presence of the Governor, who told me I was to go with Mr. Johnson, who was going to Wangarei to purchase the land. I said to him, 'O Governor, the men of Wangarei will not sell that land to you, for they sold it many years ago to Mr.

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Busby.' He said he intended to pay you for the land in proportion as you had paid for it, if much, much, if little, little. I then replied, 'The men of Wangarei will not allow any white man to live on that land without the leave of their father' (meaning myself). The Governor then said, 'Are you a gentleman?' O Mr. Busby, great was my boldness in the presence of the Governor when he asked me if I were a gentleman; and I said to him, 'Amongst my own people I am a gentleman, although I may appear a slave in your sight. But if you stood in the presence of my people divested of your Governor's clothes, perhaps you would appear as little a gentleman there as I do here.' He then said I was a child, the elders would listen to Mr. Johnson, and I replied, 'O Governor, I now perceive you are a robber of land.'

Another member of the tribe was soon found who was made more pliant by a gift of 200 sovereigns, which he was to distribute amongst the rest. But his proposition excited amongst them the greatest astonishment and indignation. They looked upon it as some treacherous scheme to entrap them, the nature of which they were unable to unravel. They sent back the 200 sovereigns with a message that they could not sell the land, for it was not theirs to sell. But the Commissioner was instructed to persevere, and, after about two years' negotiation, he prevailed upon them to take between 3000l. and 4000l. of the public money, in the face of their declaration that the land for which it was given was not their property. And Tirerau, the principal chief, subsequently declared that he never consented to take money for the land until he was assured, not only that the Queen would not allow the owner to possess it, but that he (the owner) had received compensation from the Government, and that he was satisfied.

In reference to this transaction, a Report of a Commissioner of Land Claims, published in the Appendix to the Proceedings of the House of Representatives for 1862 (D, No. 10, page 11), has the following passage, viz.:-- "Although Mr. Johnson" (Land Purchase Commissioner) "had suffered much trouble and anxiety from the opposition of Mr. Busby and the Land League, the original purchase made by Mr. Busby was a fact that could not be evaded," . . . . . . "Commissioners Godfrey and Richmond having found that the actual value of money and goods (multiplied by three) given to the natives by Mr. Busby was 831l. 9s. 3d."

One immediate result of this transaction was an attempt by the natives, who were the original owners of the land on which

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the town of Kororareka, or Russel, at the Bay of Islands, is built, to obtain a second payment for that land. The inhabitants were called upon separately, and told that in a fortnight the natives would return for payment, and that, if it was not given to them, they would seize the property in the shops. The leader of this party, named George King, was the beginner of Heke's war, by the seizure of the horses belonging to a settler named Wright--a fact of which he was accustomed to boast. The following statement in relation to it appeared in a leading article in the Southern Cross newspaper of 22d December, 1854. But the writer of it was unaware that the intended raid was prevented by the superior influence of the chief, Pene Taui, Heke's most energetic assistant in the first war, who had been conciliated by being entrusted with a large sum of money to pay his tribe, who were employed in making a road near his settlement:--

"We have at last been able to obtain precise and authentic information concerning the native disturbance which occurred, some few months ago, at the Bay of Islands. The anxiety has passed away; but it is necessary to overthrow a statement which has been assiduously circulated--namely, that it was excited by European settlers. And in this instance we have a special object, --to hinder the affair from being distorted to the advantage of Governor Grey, from being offered as a proof that he alone was able to manage the native race. For its ultimate origin was in Governor Grey's own acts and deeds; in his ceaseless attempts to excite the cupidity of the natives, called by himself 'the most covetous people in the world,' in order to enlist them as allies in his warfare against the old land claimants.

"The more immediate cause of the disturbance was the attempt of Colonel Wynyard's Government to purchase from the original native owners the land at Wangarei which they had sold, before the colonisation of New Zealand, to Mr. Busby. On this subject the following statement was made, about a year ago, by a party of natives who were on a visit in the neighbourhood of Pakaraka.

"They said that Mr. Johnson (a Government agent) had been at Wangarei with money, to purchase the land; that they refused it, on the ground of its having been already sold to Mr. Busby. Mr. Johnson stated that the matter had already been arranged between Mr. Busby and the Government, and pressed acceptance upon them. They asked for Mr. Busby's pukapuka--his written agreement--to that effect; but Mr.

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Johnson had it not. They observed that if he would produce the agreement, they had no objection to make; but refused to take the money until their request should be complied with. Mr. Johnson then replied, 'If you will not take the money, the Pakehas will come upon the ground without any further questions.' This led to much confusion; the natives construing this expression into a threat of taking the land, and the Government agent and the natives got angry together. The whole party were questioned in turn as to the accuracy of what had been stated by the main speaker, and corroborated his account." Our readers have already been made acquainted with the facts concerning the subsequent acceptance of a portion of the money, by a party who had no claim, the return of the money, and the final sale to the Government.

"As it appeared that double payment for land was in vogue, the cupidity of the original owners of Kororareka--those who had given that land as the price of blood to the Ngapuhis, by whom it was sold to the Europeans--was excited. Acting upon the alleged dying words of Kawiti, they proceeded in a body to Kororareka, for the purpose of demanding payment, having previously given the following notice of their intention:--

"Orauta, Hune 20, 1854.

"E kara e te Wiremu he kupu tenei naku kia koe no te hui ki Orauta no reira i korerotia ai te kupu a te Ruki kia utua a Kororareka kia rongo mai koe ko te hiki pene o Kororareka kia hoki mai ki au ko a te Paraire haere ai nga iwi katoa ki te whakarite i taua kupu.

"Heoi ano taku kupu kia koe.
"Na te Wikiriwhi Te Ohu.

"Sir, Mr. Williams, --This is my word to you from the meeting at Orauta, from whence the word of Kawiti was delivered, that Kororareka should be paid for. Do thou attend. The sixpence of Kororareka must be returned to me. On Friday the whole of the people go down to carry out that word.
"That is my word to you.

"From Wikiriwhi Te Ohu.

"This letter was immediately communicated by Archdeacon Henry Williams to the officer in command at the Wahapu, who took what precautions he was able. But the position in which the troops were located by Governor Grey is notoriously indefensible, and absolutely useless so far as the support of Kororareka is concerned.

"Now we have altogether failed in tracing up those 'dying words' to any authentic source. What we have learned is this:--

"Kawiti, in his latter years, had separated himself from his people, who were rank heathen, for the sake of quiet. Yet he found himself continually harassed by solicitations to return to

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his old ways, and to avoid importunity retired to the Kawakawa, where he was well received. Shortly before his death he visited the Resident Magistrate at Kororareka, proceeding, not from Pakaraka, as has been alleged, but from the Kawakawa, and spoke of a second payment. It does not appear that he mentioned the object of his visit to any other European. Almost immediately after this he was taken ill, and died. We are informed that he did not reach home at all, and that he left no dying injunction; he being one of the few chiefs of any note who have not left their oral testament behind them.

"This conversation with the Resident Magistrate appears to have been distorted by the claimants of payment to suit the immediate purpose into a dying injunction. But Kawiti, during the latter part of his life, had restrained the natives; nor was it until after his death that they began to use large words, They then assembled, to the number of about 400, inside the Kawakawa, having previously written to Heke's people to join them.

"It will be remembered that the member for the Bay of Islands, who had received private intelligence that a disturbance was to be apprehended, put a question on the subject to the Ministry in the House of Representatives. The answer was that the Government had received no communication on the subject. In this, we think that a certain degree of remissness was shown by the Resident Magistrate at the Bay. But after the landing from the armed canoes, a report, treating the matter lightly, was forwarded, and was produced by Mr. Fitzgerald. A second report was also forwarded, in which the following passage occurs:-- 'George King [the well-known native chief] told me that it was in consequence of a second payment having been given for Wangarei.'

"This is corroborated by the evidence taken before the special committee of the Provincial Council in the inquiry concerning Mr. Grace's manifesto to the Maories. "

Other instances might be brought forward of the results upon the minds of the natives of the policy of the Government in teaching them to disregard the obligation of contracts which they themselves held sacred.

The following letter appeared in the Southern Cross newspaper of October 9th,. 1857:--

"To His Excellency Colonel Gore Browne,
"Governor-in-Chief &c. &c. &c.

"Auckland, 25th October, 1856.
"Sir, --It was my intention, immediately on learning that

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you had given your assent to 'The Land Claims Settlement Bill, 1856,' to have represented to your Excellency my fears that the proceedings of the Commissioners, to be appointed under that enactment, might, a second time, disturb the peace of that district where I have lived during the last twenty-three years, and might place me in a position where my duties as a Justice of the Peace might conflict with a higher duty; and to have begged that your Excellency would be pleased to relieve me from a position so painful, by removing my name from the Commission of the Peace. But I thought it would be more courteous to your Excellency to defer doing so until I should be able to make your Excellency more fully aware of the grounds of such a proceeding.

"This I now beg to have the honour of doing, by requesting your Excellency's perusal of the accompanying pamphlet:-- 'THE FIRST SETTLERS IN NEW ZEALAND, AND THEIR TREATMENT BY THE GOVERNMENT.' It has since occurred to me to suggest to your Excellency that the Commissioners might, without compromising the objects of the Legislature on the one hand, or the public peace and the honour of the Government on the other hand, so proceed in the discharge of their duties as to furnish the Government with all the information necessary to the full understanding of the questions involved, before it should commit itself to carry out a policy which nothing but a supposed necessity could ever have originated--a necessity which never did exist.

"I would respectfully suggest to your Excellency that the Commissioners who are authorised to appropriate certain portions of the lands reported by the Commissioners under the Ordinance, Session 1, No. 2, to have been validly purchased from the natives to the purchasers thereof, and to take possession of the remainder, as the public demesne, should be instructed to abstain from giving a decision in any case until they shall have collected all the information necessary for a decision in every case; and that they should then make a general report to the Government, setting forth not only the extent, but also the quality and value, of the land which might in each case be thus gained to the public.

"While making this recommendation, which would put the expediency of carrying out the provisions of the Act upon the lowest and narrowest ground, namely, that of the expenditure of money, and the return for money expended; and would, as I firmly believe, demonstrate that, even on that ground, if those provisions are to be carried out without disturbing the public

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peace, the balance of profit and loss would be on the unfavourable side, I would guard myself against appearing to admit that in my opinion any amount of gain to the public revenue, or of addition to the public domain, could justify a breach of the public faith, or of those laws of morality which are universally admitted.

"I cannot illustrate my meaning better than by referring to a case which came to my knowledge by a conversation with an old and respectable settler at Wangarei on my voyage homewards from my last visit to Auckland. I have no doubt whatever that what I am about to state to your Excellency is substantially correct, although, as I made no note of the conversation, it may not be so in one or more immaterial points.

"The North Head of Wangarei, with the mountains behind it, to the extent of several thousand acres, had been reported by the Commissioners under the Ordinance, Session 1, No. 2, to have been validly purchased from the natives; but in this case, as well as in others, the price paid bore a proportion to the quality of the land, as well as to its extent; and the quantity assignable by the Commissioners, according to the provisions of the sliding-scale attached to that Ordinance, was only 414 acres. This quantity, 'more or less,' according to the boundaries specified by the natives, and described in the Commissioners' Report, was granted by Capt. Fitzroy to the assignees of the original purchaser.

"About twelve months ago these parties were called upon, under the provisions of the Ordinance, Session 10, No. 4, to select 414 acres, in order that the Government might appropriate the remainder; and they refused to make the selection. Under these circumstances, the Commissioner under that Ordinance proceeded to Wangarei, and, having procured the natives who sold the land to point out the boundaries, directed a surveyor to measure off 414 acres from the boundary line-- an undertaking which was all but impracticable, from the broken character of the ground. Mr. Commissioner Johnson then paid to the natives the sum of 200l. This was done in the presence of my informant, who said to the chief-- 'Pohe, you know as well as I do that you are wrong in taking this money.' Pohe replied: 'O------, 53 the wrong is not with me. I showed them the true boundary of the land we sold to Mr. Mair, but they say Mr. Mair is only entitled to 414 acres, and they insist upon giving me this money for the remainder. Would not you, O------, take money if it were forced upon you?

"If such proceedings as these are to be resorted to, it is possible that the provisions of the Act might, in most cases, be

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carried out vithout much disturbance; but the Government must be prepared for the assertion of a right, on the part of the natives, to additional payments in all other cases, as well as in those which may be affected by the provisions of the Act. There would still, however, remain the danger that old disputes respecting the titles of different parties to the same land, which were set at rest at the time of the purchase, might be revived by a fresh payment. Nor is it possible to estimate the ulterior results of thus teaching the natives, over whom the Government have no efficient control, that the most solemn acts of public functionaries are to be set aside by their successors, and that obligations, which the natives consider to be of the most binding character, are to be cancelled upon grounds, the justice of which it is impossible for them to appreciate."

I have, &c., &c.,
(Signed) "JAMES BUSBY."

From the date when the Constitution of 1852 came into operation, the New Zealand Colonies have been in the hands of politicians of the Gibbon-Wakefield school, and, in their dealings with the land question, full well have they fulfilled the traditions of their apostle. In his first message to the Assembly, Governor Browne called their attention to "the many vexed questions connected with land claims;" and referred to them various petitions and communications on the subject. A Committee was accordingly appointed, which received evidence of the injustice with which the Northern settlers had been treated; but the report which the Committee brought up made no reference whatever to that evidence. Alluding to "those evils which a system of general compensation has inflicted upon other provinces, and which, to a certain extent, must be involved in the re-settlement of these claims," they accepted the arbitrary provisions of the Land Claims Ordinances, and the confiscations made by Sir George Grey, as decisions which were to remain unquestioned; and thus, while the public lands at the South were bestowed upon the New Zealand Company's settlers to make good the shortcomings of the Company, each settler receiving a gratuitous grant of 150 acres of public land in addition to each 100 acres which he had purchased from the Company, but to which the Company had not established its claim, the Northern settlers were doomed to be deprived of the lands to which they had proved an undisputed title.

The Report of the Committee gave, in elaborate detail, a

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history of the unprecedented proceedings of the Government, in relation to the Northern settlers, quoting such parts of the Secretary of State's instructions as would appear to justify those proceedings, but omitting what would prove them to be a violation of the public faith. For instance, the Report states that "Her Majesty, by Royal instructions of 14th August, 1839, declared that no titles to land not proceeding from, or recognised by. Her Majesty should be recognised;" but it omits the sentence which immediately follows that declaration, viz.:-- "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." 54 The compensations provided for by the bill, in cases which were admitted to be entitled to compensation, were of such a character as to be a mere mockery. Clause 32 of the Act provides that "in estimating the quantity of compensation land to be given as last aforesaid, the Commissioners shall estimate the same by the amount realised upon such alienation of the land comprised in the original claim, but in no case shall the original land be estimated as having realised more than one pound per acre, thus binding up a lie in the words of an Act of Legislation; calling that compensation which is not compensation. What a cruel mockery this provision of pretended compensation proved to be, was evidenced in the case of the widow Forbes, whose title to nine and a half acres had been certified by the Commissioner, whose Report was approved by the Government, and notice given in the Gazette that a grant for it was in preparation, but which was afterwards sold by the Government. By this clause she would have been entitled to compensation to the amount of 8l. 10s. for land which, on the opening of the Manukau harbour to navigation, was valued at 850l.; that is, 8l. 10s. was to be compensation, which in ordinary language means equivalent for 850l. But another clause of the Act (33) precludes the widow from receiving even this 8l. 10s., because, under a threat of being deprived of the whole of her property, she had consented to receive a grant of 1 acre, 1 rood, 35 perches, and 13l. in money to cover expenses of survey, &c., in lieu of 9 acres, 3 roods, and 25 perches, to which she had established her title. If "righteousness exalteth a nation," what was to be expected in a country where men who were capable of such acts

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as these were invested with the powers of legislation and government? In 1858 the General Legislature passed another Act to enlarge the powers of the Commissioner who had been appointed under the Act of 1856; but this brought no relief to the mass of the sufferers. On the whole, in the course of twenty-five years, during which the colony has been in a state of agitation and rebellion, owing to the dealings of the Government with the land, eight Ordinances have been passed under the first charter, including one disallowed by the Queen, and two Acts of Assembly, under the present Constitution, in the vain attempt "to settle or stifle" these claims, and six other bills were brought in between 1854 and 1863, which did not pass. And to crown all, in the same session in which an Act was passed to change the aboriginal title over 19 millions of acres into a legal title, thus, by enabling the Maories to sell land to individuals, increasing its value fivefold, a Committee of the House of Representatives recommended that 204,243 acres, which the Government declared to be demesne of the Crown, should be transferred to the provincial authorities for sale, after a Commissioner had reported that the land in question had cost those who purchased it from the natives, before New Zealand became a British settlement, 5s. 6d. an acre. The following are the passages from the report referred to:-- "The total amount of money or money's worth which their purchases cost the claimants was, in round numbers, 131,000l.; the total area their claims were found to contain was 474,000 acres. Looking, therefore, at the transactions in the gross, it may be said that the land cost the claimants at the rate of 5s. 6d. per acre up to the point when the Government should either make them grants or purchase their interest. I have often heard it said that it would have been far better for the claimants to have thrown up all their land at once, and bought what they wanted from the Crown; and I think the facts I have just mentioned go far to justify that saying." 55 In another part of the Report (page 18) the Commissioner states that "in 1862 you may buy finely grassed land from the Crown for 5s. an acre." "In the return will be found the acreage awarded or granted in each case. This, including the survey allowances granted under the Act, amounts in the whole to 292,475 acres, and will, probably, reach the total quantity of about 315,000 acres, if no alteration be made in the principle of the Acts." 56 "It will be seen that

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the total number of acres reverting to the Crown upon the settlement of the land claims is 204,243, of which the greater portion is situated in the vicinity of the Bay of Islands." 57

It seems a strange fatuity which should lead men thus to persist in attempting to rob their countrymen, under the forms of law, of the property which, under the provisions of the same law, was proved to nave been purchased from the rightful owners at its full value, or at more than its full value; and it seems the more inconceivable seeing that the Government have never dared to attempt to take possession of a single acre, unless in one or two instances in which they bribed the natives to be quiet by giving them money under the pretence of a second payment for the land; for the natives have invariably told their Commissioners that if it was left to the original purchasers they would be satisfied; but as the Government had no claim to it they should not be allowed to take possession of it.

Mr. John White, of the Native Secretary's Department, now a Resident Magistrate at Wanganui, was sent to Hokianga in 1856 to persuade the natives of that district to abstain from taking any part in a dispute at Kaipara, which was likely to lead to a native war, a mission in which he perfectly succeeded. All the influential natives of the district were assembled on the occasion; and when the decision was arrived at that they should take no part in the Kaipara dispute, they introduced the question of the lands which had been exchanged by the settlers with the Government for land near Auckland. They said they wished the boundaries of those lands to be pointed out before all the old people died off, in order to avoid disputes between the Government and their children. But they wished also to know what was to be done with the land which they had sold, but which the Government would not allow the buyers to possess. "If," said they, "these pieces of land are left in the possession of those who bought them, it is right; but if the Government thinks to possess them, we tell you plainly that they shall not be allowed to possess them."

The facts related in the foregoing narrative have, for the first time, been brought together and made public. They are a selection, only, from voluminous details of proceedings, many of which, singly, were sufficient to destroy the confidence of the natives in the intentions of the Government towards them; but, taken together, they were calculated to make confidence impossible. It will doubtless be supposed by many that such proceedings

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affecting the Queen's native-born subjects, alone, were insufficient to drive the Maories to revolt unless the conduct of the Government towards themselves had been unjust and oppressive. But there is a singular absence of any grounds for such a supposition.

In no case, unless in that of the Widow Meurant before referred to, did the Government attempt to seize into its possession any land which the Maories had not sold. It was doubtless a grievance that the local Government was not prepared to purchase the land which the Maories were desirous to sell. But before Heke's rebellion broke out the natives of his part of the country had formed themselves into a league to prevent any more land from being sold. Of this league Heke was the head, and the punishment of death was threatened against any person who should so much as make an offer of land for sale. There can be no doubt that Heke was, in part, moved by ambition to place himself at the head of his countrymen, and to take the initiative by cutting down the flagstaff, but in this he had no other design than to protest against the encroachments which evil-minded and inconsiderate persons had led him to expect; and had the confidence of the natives in the Government not been destroyed, Heke's ambition and the influence he possessed over his countrymen might have easily been turned into a beneficial channel. So far from having any ill-feeling towards the settlers, it has been shown already that he led an expedition to resist any interference with the rights to land which his tribe or their connections had sold to the settlers, when this right was disputed by a tribe which had, at an earlier period, been in possession of the district. The first two men who fell in the action which ensued were shot down by Heke with his double-barrelled gun. Those of the settlers who remained upon their land were not treated by the natives as enemies, and the rights of property were respected in a degree which it is to be feared is seldom the case in countries which are the seat of war.

These are facts which have been unknown to, or ignored by, most persons who have given opinions as to the causes of the Maori outbreaks. There has always been a singular unwillingness in the colonists to discuss any matter connected with the first transactions of the Government. The subject was hateful to some from complicity with those transactions; to others, from an unwillingness to encounter the labour necessary to understand them; to a few, perhaps, from a sense of shame; and to some, from having become, probably without any fault

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of their own, possessed of property of which the rightful title is in another.

That the missionary body should sympathise with the natives was to have been expected from the relations which subsisted between them. The missionaries were necessarily best acquainted with the best side of the Maori character, and were willing to look upon their election of a King, and other proceedings connected with it, as an endeavour after a more improved social state, which it no doubt was, in the best of them, rather than as the result of ambition in the leading chiefs, and the pride of enterprise and hope of plunder in the younger men. In a lecture, delivered in Auckland in 1861, by an old Wesleyan missionary--after alluding to the difficulties which lie in the way of a just estimate of the Maori character as affected by the teachings of Christianity--he says:--

"I bear in mind that those who are related to our native people as their Christian teachers, and others whose philanthropy and Christian benevolence have led them to feel deeply interested in their welfare, may occasionally be in danger of regarding with too sanguine feelings the state of our native Churches, and of over-estimating the position they are entitled to hold in the family of Christianity; yet I believe those who fall into this error are very few, and that a much greater number of our countrymen are in danger of being led, by their prejudices, altogether to undervalue the infantile Christianity of the natives, and to reject their claim to the humblest place in the Christian brotherhood."

As an instance of the power of Christianity over the minds of the Maories, he alludes to "the signal homage they render to Christian law by the renunciation of polygamy, and the manumission of their slaves." "I believe," he says, "there are very few, beyond the circle of those who have lived among them as missionaries, who can properly estimate the high value which the chiefs of New Zealand set upon the Gospel when they surrendered these institutions in obedience to its dictates. I need not say that slavery existed in England long after its reception of Christianity, and even to a very late period; and we know by what a struggle, and at what a cost, she extinguished it in the colonies." "Still, is it too much to say that the Christian chiefs of New Zealand laid on God's altar a costlier offering when they restored their slaves to liberty, and rendered it necessary that thenceforward themselves and their families should take up the menial and laborious employments that had been hitherto performed by their slaves?"

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"When Europeans increased in the land, and the natives beheld numbers of men, the countrymen of the missionaries, and their equals in intelligence, who 'slighted the institutions of Christianity and ignored its laws; who neither coveted its rewards nor feared its threatenings,' was it wonderful that these facts, which appeared to overturn the whole foundation on which their faith rested, should unsettle their faith and leave them an easy prey, not only to their former corruptions, but also to the many new and powerful temptations to which they had become exposed?"

It was not the part of a missionary, nor was it necessary to his case, to refer to the Newgate morality which distinguished the conduct of the Government in its first transactions, which so nearly concerned the natives.

Under the influence of feelings such as these, the Bishop and many of the missionaries have striven to make out a case in favour of the natives, by showing that their endeavours to establish a separate nationality was the natural result of the neglect by the Government of the duty which it owes to them as subjects, and by its dealings in respect to their lands.

A letter which was addressed by the Bishop of New Zealand, with two archdeacons and several other clergymen of his Church, to Governor George Browne, may, however, be considered rather in the light of an intercession on their behalf than as a justification. It is stated in that letter-

"1. That at the time of the breaking out of the war at Taranaki, there was no part of Her Majesty's dominions in which life or property was more secure than in the districts bordering on the Waikato River.

"2. That the native inhabitants of those districts, and especially those on the Lower Waikato, have always maintained friendly relations with the colonists.

"3. That the native inhabitants of those districts have shown a remarkable aptitude and willingness to receive English institutions, under the guidance of officers appointed by the Government.

"4. That Potatau, the so-called native King, was the firm friend of the English Government from the time of Governor Hobson to the day of his death.

"5. That neither he nor his son ever encouraged their people to take any part in the war at Taranaki, nor have participated in any plunder from English settlers.

"6. That the same statement applies to William Thompson, Tarapipipi, who is commonly reputed to be the chief supporter

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of the native King." [That he had always been a friend to the English people; of this the letter specified several instances.]

"7. That a Committee of the House of Representatives has investigated with the greatest care and patience the causes and history of the King movement, and recognises its true character as an effort to obtain law and order.'

"8. That the main causes of distrust and irritation are believed to be these--

"1. The uncertainty of the relations between the two races, and
"2. The system of land purchase.

"9. On the first point Mr. Fortescue has admitted, in his speech in the House of Commons on the 11th April, as reported in the Times, that

"The Governor of New Zealand is 'obliged to act under a Constitution which appears to have been framed in forgetfulness of the large native tribes within the dominions to which it was intended to apply.'

"10. And we observe that your Excellency has stated in your Memorandum of the 25th May, 1861, section xi., that

"'Some of the most populous districts, such as Hokianga and Kaipara, have no magistrates resident among them; and many, such as Taupo, the Ngatiruanui, Taranaki, and the country about the East Cape, have never been visited by an officer of the Government. The residents in these districts have never felt that they are the subjects of the Queen of England, and have little reason to think that the Government of the colony cares at all about their welfare.'

"And, further, in section xii. of the same Memorandum:--

"'In New Zealand the Government is and always has been unable to perform its duty, for want of a sufficient number of agents trained and qualified for the service required of them.'

"And, further, that unless the Native Department be 'entirely remodelled,'

"'The Government will never be able to take its proper part in establishing institutions for the native race, or obtain any real hold upon their confidence.'

"11. On the second point, namely, the system of land purchase, we observe with satisfaction that your Excellency, in your memorandum of the 15th May, 1861, section xvi., has given your opinion that 'the system of purchasing land requires alteration.'

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"And, again, section xvii., No. 13:--

"'Alter the system of land, and for the present purchase only in districts which remain undisturbed.'

"12. We have no wish to say more on this subject than to express our opinion that the existing system of land purchasing has been one main cause of suspicion and dissatisfaction in the minds of the natives.

"13. We are glad to find also, from a letter to your Excellency of the 9th of May, 1861, that the Judges of the Supreme Court are of opinion

"'That a competent tribunal might probably be established by the formation of a land jury, selected by lot or otherwise from members of the various tribes in previously defined districts, nominated by such tribes as are competent to act in the capacity, to be presided over by a European officer or Commissioner (not being an agent of the Crown for the purchase of land) conversant with the Maori language, and assisted, if necessary, by a native assessor, and whose duty it should be merely to propound the questions for the decision of the jury, to record their verdict, and to administer oaths to witnesses.'

"We are of opinion that the want of some such tribunal as that proposed by the judges is one main cause of dissatisfaction in the minds of the natives."

The letter concludes by the expression of an opinion that the suggestions above quoted from the Governor's Memorandum and the judges, would in a great measure remedy the unsatisfactory state of the relations between the two races, and with the tender of their influence in obtaining the co-operation of the natives.

The facts and opinions suggested in the above letter are fairly subject to the following observations:--

There can be no doubt of the truth of the description given of the state of Waikato as regards the security of property, and the friendly disposition of a part of the tribes; but, unhappily, amongst "a people without law and without a prince"--which was pre-eminently the characteristic of the New Zealanders-- it is at any time in the power of a very insignificant tribe, or even of an individual, to involve a large district in war. Sir William Martin gives an apt illustration of this. He says:-- "On one occasion I heard a discussion, on the shore of the great lake at Rotorua, which was prompted by my presence there is no doubt, but not by any words of mine." (Sir W. Martin was at the time Chief Justice of New Zealand.)

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"The speaker contrasted, in strong terms, the law of the pakeha with a then recent war between Rotorua and Waikato, in which some five hundred lives had been lost, whilst the murderer whose crime had caused the war was still living." 58

As to "their aptitude and willingness to receive English institutions," there can be no doubt that the more intelligent of the chiefs fully appreciated the importance of law and order, and a few perhaps might have acquiesced in its administration by British functionaries; but the feeling of the majority was far different. A very able compilation or abstract of English law had been prepared for them, and circulated amongst them in their own language: and the compiler of that abstract was placed amongst them as a resident magistrate, whom they were quite willing to receive as a professor of law, "to teach them the law as the missionaries taught them the Gospel;" but nothing was farther from their thoughts than submission to it; and when the magistrate attempted to put the law in force, the Government was obliged to withdraw him, a Minister stating in the House of Representatives that his continuance would have provoked a war. William Thompson Tamehana explained their feelings to Mr. Fox in the terse expression, "We like your laws; it is your men we do not like." The tribes of Waikato above all others were favoured by the Government with loans or gifts of money to build mills, and for other purposes to promote their social improvement, as well by the missionaries both of the Church and Wesleyan Societies, in the provision made for their religious instruction and for the education of their children; but their jealousy of the Government was such that they kept the extensive territory in which their cultivations were situated sealed against the occupation of the colonists, although they themselves could not use one-twentieth part of it.

The Report of the Committee of the House of Representatives, to which the letter refers, was composed of persons who had little knowledge of the Maori character, and their Report was far from doing justice to the evidence which they received. The object of the Ministry and of their supporters was to obtain the management of native affairs, and the extensive patronage which it would open up to them. The most valuable evidence given before that Committee was that of Sir William Martin, a portion of which would have formed the best report which that Committee could have brought up. It is as follows:-- "I think that the attempt (to build up civil institutions throughout the island) should be postponed till peace is established, and

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so established as to create confidence." To the question: "But how would you proceed to plant institutions in the first instance!" he replies, "By means of personal influence. The first confidence must be a confidence in persons. There are three stages or periods in the course of the work. First, there is a movement in the national mind; a sense of need, without the knowledge or means requisite for supplying that which is needed. Then comes personal influence and guidance, giving a right direction to the movement, and gradually shaping out some institutions fitted to the circumstances. In the third stage the institution is in operation, satisfying the need, and thereby producing confidence and attachment towards itself, and towards the whole system, the whole government, of which it is a part. The true use and object of personal influence is to establish something better than itself, and more permanent."

As a series of abstract propositions all this is excellent; but, unfortunately, the necessary foundation of personal character was wanting. The natives characterised the Ministry as "the men with two faces," and the missionaries themselves were brought into suspicion by their endeavours to produce a confidence in intentions which were belied by all previous evidence.

The letter states a belief that the main causes of distrust and irritation are--

"1. The uncertainty of the relations between the two races and the system of land purchase."

The former proposition is supported by a quotation from a speech of Mr. Fortescue: that the Governor of New Zealand is "obliged to act under a Constitution which appears to have been framed in forgetfulness of the large native tribes within the dominions to which it was intended to apply." But this dictum of an Under-Secretary for the Colonies is contradicted by an express provision of the Constitution Act. The words of clause 71 are as follow:--

"71. And whereas it may be expedient that the laws, customs, and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves, in all their relations to and dealings with each other, and that particular districts should he set apart within which such laws, customs, or usages should be so observed: it shall be lawful for Her Majesty, by any letters patent to be issued under the Great Seal of the United Kingdom, from time to time to make provision for the purposes aforesaid, any repugnancy of any such native laws, customs, or

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usages to the law of England, or to any law, statute, or usage in force in New Zealand, or in any part thereof, in anywise notwithstanding."

It was impossible for the Imperial Parliament to make more effectual provision for a state of things which they supposed to exist, but the local Government left this provision totally inoperative, simply because, in a state of things where every man from infancy onwards had never felt the obligation of submitting his will to that of another, or recognised the right in any one to dictate to him what his conduct in any circumstances should be, there was neither law, nor usage having the force of law, to sanction or maintain.

It is not a "reverence for the constable's staff" that preserves order in countries where law is established, but the conviction that there is a power behind it, to which resistance would be in vain; and until the same conviction is established in the minds of the Maories, it is mere weakness to suppose that they who have never known law will submit to its penalties. Laws are made for the lawless and disobedient, and the magistrate who administers law must not only be able to command the constable's staff, but the sword of the State, in order to save both law and its administration from contempt. Nothing could be more unwise than the appointment of magistrates to assume over the Maories a jurisdiction which they would not acknowledge, and to which they could not be compelled to submit. The magistrates, who were appointed under the Resident Magistrates' Ordinance in places where the settlers were numerous, had peculiar powers to exempt the natives from the ordinary penalties of law. They might dismiss a charge against a native, "although a felony may have been proved." In civil cases the jurisdiction was altogether one-sided. There was no obstruction to the recovery of a claim made by a Maori against a European; but in the opposite case a judgment was nugatory.

These appear to constitute a sufficient answer to the observations quoted from Governor Browne, that magistrates have not been appointed in populous districts, and that the New Zealand Government has been unable to perform its duty, owing to the want of a sufficient number of agents trained and qualified for the service required of them; and that the Government will never be able to take its proper part in establishing institutions for the native race, or obtain any real hold upon their confidence.

It is remarkable, or rather would be so, if the proper objects of government had not so seldom in New Zealand coincided

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with the objects of its functionaries, that no attempt has ever been made to improve the social condition of the Maories, by encouraging them to adopt some simple form of municipal organisation which, under the guidance of a Government Commissioner, but without the assumption on his part of authority, might be worked by themselves.

In one of his despatches to the Secretary of State (No. 39, dated 6th Dec, 1861), Sir George Grey states that "ten years ago (viz., in his despatch No. 121, of 30th August, 1851) the necessity of introducing simple municipal institutions amongst them was pointed out." But that despatch contains no such proposition, although in another despatch (No. 97, dated July 17, 1851) he states that by the removal of a previously existing disqualification--that of not being able to read and write the English language--he had enabled them, as well as the German settlers, to vote for burgesses in English corporations, if possessing the necessary property qualifications.

In 1856 a Commission was appointed by Governor Gore Browne to obtain evidence upon the customs of the natives, on which occasion a plan for establishing native municipalities was submitted to the Commission by a very old colonist, of many years' experience of Maori character, but no notice was taken of it.

It was proposed by this plan to induce the natives to organise themselves into municipalities, by the offer of assistance and advice. Its characteristics were--

To avoid the assumption of any jurisdiction, seeing that it might provoke resistance, and could not be enforced.

To avoid the use of Maori expressions, seeing that they convey ideas incompatible with the objects to be attained.

To provide such salaries as would be an inducement to the chiefs to be elected, and to make the elections annual, in order to afford the opportunity to each of the leading men to be elected in his turn, with a proviso, for the same reason, that no one should hold office two years in succession.

Each considerable tribe consisting of several sections, it was considered that the offices of Mayor and Aldermen would become objects of ambition to all the men of influence, and would enlist them and their connections in giving efficiency to the organisation.

Amongst themselves the Maories have no ideas of authority implying a right in one person to command, and the duty of another to obey. They have therefore no words to express such ideas. It was consequently considered necessary to introduce new ideas by new words, and not to perpetuate the old

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ideas by using words which only apply to the old ate of things; for example, the word mayor would with them be the same as major. They know by observation that the office of major implies command which secures obedience, and they would naturally attach these ideas to the word.

By way of assistance, the Government to appoint a Commissioner, without any magisterial authority, whose office would be, to explain the necessary steps to prepare and complete in each case the proposed organisation, and to advise the persons elected how to act in the discharge of their duties: by providing Books of Record, in which the nature and circumstances of each case, and the decision upon it, should be entered in a tabular form by a clerk of their own election; the payment of salaries being made subject to the report of the Commissioner that the necessary formalities had been adhered to.

The books to be examined periodically in the most public manner, and any erroneous proceeds or decisions pointed out, with a suggestion in each case of what would have been more just and expedient.

It was from want of arrangements of such a character as these, adapted to the actual condition of the Maories, that the "Institutions of Native Government," introduced by Sir George Grey in 1862, proved so entire a failure. The appointments of "assessors" and "wardens" were seldom satisfactory to the majority. The natives knew well that these functionaries were absolutely incapable of the duties required of them by their appointment, and those who had nothing to say in their election did not feel it incumbent upon them to support them. They could see no object in giving salaries unless as a bribe to secure good behaviour; and they could discover no reason why such an inducement should not be given to them all.

With reference to the supposition that "the existing system of land-purchasing has been one main cause of suspicion and dissatisfaction in the minds of the natives, it may be observed that it is scarcely borne out by facts, as will appear from an examination of the published reports of the Land Purchase Department. From the time that the Commissioners were furnished with sufficient funds, there does not appear to have been any insuperable difficulty in effecting purchases, except in those districts which were sealed against the intrusion of the pakeha by a Land League. The opposition to the mode of obtaining land, provided for by the Treaty of Waitangi, was rather that of speculators, who calculated upon obtaining an

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estate on better terms by direct purchase from the natives than of the natives themselves.

In the uncertainty arising from rival claims to the same land, there could be no means so effectual in preventing disputes as the prohibition of private individuals from treating with the natives. The attempts of different individuals to deal for the same land with different tribes, or different families of the same tribe, could scarcely fail in most cases to create disputes, and in many cases be the cause of bloodshed. The proposition of a "competent tribunal" to deal with native tenure ignores the fact that the decisions of such a tribunal would only be acquiesced in by the party of natives which they might happen to favour. One of the judges of the Supreme Court was sent to Taranaki in 1861, under a special Commission, to inquire into a disputed title there; but the results of that mission only supplied another proof, in an aggravated form, of the folly and mischief of assuming a jurisdiction which would not be submitted to, and could not be enforced.

Rights of so imperfect a character as those of any tribe or family of natives to land could only be settled by negotiation. They could scarcely be made the subject of jurisdiction, even if supported by authority to maintain it. The agent of the Queen could take his time in the investigation of the pretensions of the different claimants, and leave them to compromise and settle their relative rights amongst themselves. There was no resource left them but to come to such an agreement, as no purchase would be effected until all parties had agreed. There could be no other mode so effectual in preventing internecine wars, and of securing to the weaker parties a due consideration of their claims. Nor had the natives any difficulty in understanding the reasonableness of their being paid a lower price for land than it was necessary to re-sell the best portions of it for, in order to cover the expenses of survey, road-making, and other improvements, in the advantages of which the natives who sold the land participated; and it is remarkable that the passing of an Act to create a legal title in favour of the natives has failed to conciliate them, or to disarm their unconquerable suspicions. These observations would tend to show that the letter of Bishop Selwyn and his clergy has failed to make out any grievance which could furnish grounds to justify the natives in their rebellion.

Although these pages have begun to assume the dimensions of a book rather than of a pamphlet, to which it was intended to restrict them, yet the importance of the subject requires that

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some attention should be given to a plea which has been put forth, so late as 1864. on behalf of the natives, by Sir William Martin, another of their firm friends, in a paper which has been laid before Parliament. 59

Sir William Martin says of the statements contained in this paper that "it may be said, with some show of truth, that this is a one-sided statement; it is in some sense one-sided; it is the setting forth of that side of the question which is constantly dropt out of sight, while the other is made as prominent as possible; yet if ever we are to see our way to a policy that shall heal the troubles of this island, we must consider both sides: our policy must be fitted to the facts as they are in truth, not as we desire them to be." But Sir William Martin's views are one-sided in an equally important sense, as he leaves out of sight the very point upon which the whole question may be said to turn. In his evidence already quoted, he says that personal confidence must be the ground-work upon which the improvement of the Maories must be built. In his present paper, he states:-- "In saying this I have no intention to cast blame upon any one. It would be an ill use of our present troubles to find in them the means of assailing the characters of our public men. In fact, all such considerations would lead us away from the point to which I am looking, which is not the comparative merits of our public men in our eyes, but the way in which administration, taken as a whole, must have presented itself in the view of the natives." But in saying this. Sir William Martin seems to forget that he himself has made confidence in our public men, the very foundation upon which any healing measure must be built, the only means of disarming what he calls "our general adversary, the distrust so widely spread in the mind of the native population." This is truly the main point for consideration; for while the men whose conduct has brought on all these troubles continue in power, it may well be asked if any acts of administration can restore that confidence which, he tells us, is the first stage upon which you must proceed to build up civil institutions. The passage referred to is so important that it will well bear to be quoted a second time.

In answer to the question, "But how would you proceed to plant institutions in the first instance?" he replies, "By means of personal influence."

"The first confidence must be a confidence in persons. There are three stages or periods in the course of the work. First, there is a movement in the national mind; a sense of need,

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without the knowledge or means requisite for supplying that which is needed. Then comes personal influence and guidance, giving a right direction to the movement, and gradually shaping out some institutions fitted to the circumstances. In the third stage, the institution is in operation, satisfying the need, and thereby producing confidence and attachment towards itself and towards the whole system, the whole government, of which it is a part. The true use and object of personal influence is to establish something better than itself, and more permanent."

Any view of the question which leaves out this essential characteristic must be imperfect. Ignoring this, Sir William Martin attempts to make out a justification for the Maories on the ground "that they have not, as a nation, sinned more against us than we, the superior and protecting power, have against them." The plan of the present work, which was intended to show the real cause of the distrust of which Sir W. Martin, as well as every one else who knows anything of the matter, admits the existence, will not admit of a full examination of his opinions and arguments, however much such an examination may be due to his personal character, and to the disinterestedness of his labours. Nevertheless, its object would be incomplete without showing shortly what may be said in opposition to the views he expresses in relation to the most important questions at issue--and this is of the more importance, as the statements of Sir W. Martin and the Bishop and clergy are quoted in England as decisive upon the points to which they relate. The first question examined by Sir William Martin is, "The relation of persons of the native race to the Crown of England? Are they subjects or foreigners?" On this, he says, depends the legal right of the Crown to confiscate their lands. If foreigners, their land may be obtained by conquest; if subjects, only by operation of law--that is, on conviction of treason or by act of attainder. As connected with this relation of the natives to the Crown, Sir W. Martin asks-- "How far are lands holden by persons of the native race of these islands, according to native tenure, subject to the English rule of forfeiture to the Crown. The case stands thus:-- No native can, in any way, enforce any right of ownership or occupation of land held by the native tenure in the Courts of the colony. The native is excluded from the political franchise, even in cases where there is in fact a right of individual occupation, on the ground that his right, whatever it might be, is not, in the technical sense, a 'tenement.' The native owner receives in respect of such lands from our legal system no protection; from our political system no privilege. Is he subject to the severest penalty

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imposed by our system, that of forfeiture?" Of the actual relations of the natives to the Crown there can be no doubt. By an express provision of the Treaty of Waitangi, (they are made British subjects. But the specific provision of the same treaty which refers to their lands places their titles in the category of aboriginal titles, of which our Courts cannot take cognizance. Their titles rest altogether upon the provisions of a treaty of the conditions of which the Crown is the sole judge. Their case is altogether exceptional, and no rules of law, either municipal or international, are applicable to it. If, therefore, it should appear to the Crown that the conditions of that treaty have been violated or even rendered nugatory by the conduct of the natives, is the Crown bound to a literal observance of the provisions of the treaty, when the consequences would be the very reverse of what the treaty was intended to secure-- namely, the peaceable settlement of the country and the adoption of the Maories as fellow-subjects of the settlers, whom the Crown could not prevent from settling in the country, but from whom, being settled there, it could not withhold its protection?

It seems not difficult to understand that this is a case which transcends the ordinary rules of law, and must be dealt with by the lex suprema, solus populi, and, in the first instance at least, by the prerogative of the Crown, through the Governor representing the Crown. If this be a correct view of the case, it is no further necessary to notice Sir William Martin's observations on the illegality of the Acts of the local Legislature confiscating the native lands, than to say that if he had been as attentive to the proceedings of that Legislature in regard to other matters as he has been in regard to matters affecting the natives, he would have known that it was no new thing for that Legislature to enact illegal statutes, although in no other case could the assumption of illegal powers be attended with so much mischief.

In relation to Sir W. Martin's observations that in respect of such lands--that is, in relation to the territory over which the native title has not been extinguished--the native owner is excluded from the political franchise, it ought to be borne in mind that there is scarcely a single native who might not acquire the franchise by building upon his land such a structure as it is within the ability of any native of mature age and ordinary strength of body to erect; and that the Government have always been anxious to give a grant to any native for a portion of the territory, and thus to place him on the same footing as English settlers, on his selling his aboriginal titles to the

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Government. It is true that Sir William Martin complains justly that grants which were promised "remained unfulfilled during the whole period from 1853 to 1862," of which cases there were not less than twenty-two in the single province of Wellington. This was owing to some technical difficulty which could only be got over by a legal enactment. Doubtless this was a grievance and a cause of suspicion, but is only one case of many in which the proper objects of legislation were lost sight of, owing to the necessities of party government.

"Having sketched the relation of our government, or non-government, to the native population in general," Sir W. Martin "proceeds to consider the same subject in relation to the two districts which have become the principal seats of disaffection and disturbance--first Taranaki, and then Waikato." He states that "in the August of 1854 a feud broke out in the neighbourhood of New Plymouth, which continued to rage for five years until September, 1859," with which the Government abstained from interference, and "thus then it came to pass that through five years of deadly strife the Queen's sovereignty was never manifested in act. There was nothing to show that it was a reality--a power able and willing to protect life and property." But, on the other hand, it may be asked, could this interference have been made effectual without conquest? The natives were living in defiance of the law and of the Queen's sovereignty, and it was in resistance to the law and the sovereignty of the Queen that the murders were committed. Sir William Martin quotes the authority of the Rev. Mr. Riemenschneider (a minister of the Lutheran Church, resident in the midst of the Taranaki tribes) to show what would have been the consequence if the Queen's sovereignty had been "exerted for the benefit of these people." In a letter to the native secretary, he stated that "any intervention by military force in the feud would be generally viewed as the first step in a general and grand movement on the part of the Government to dispossess the natives by physical force of their inherited soil, which, if once permitted by the latter to be successfully entered upon by the former, would certainly be proceeded with, and be carried out through the whole length and breadth of the island, until every inch of land would have passed away from the native owners into the hands of the Europeans, and the aboriginal inhabitants of the country themselves would have been totally exterminated."

"Thus fully (he adds) the whole case has repeatedly been argued before me during the last fortnight by the natives in

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the Taranaki district. The most sober and quietly disposed amongst them declare, in a manner not to be mistaken, that they will rise, because they feel convinced that it will be necessary for the defence and preservation of their life, liberty, and possessions, against a system of violence and oppression threatening them and theirs." Such was the suspicion of the Government entertained by the natives. At this time the military force in New Zealand was very small, and subsequent events justified the opinion of the authorities that it would be impossible under such circumstances to put the Queen's authority in force. Sir William Martin admits this. "The feud at last wore itself out, and peace was made between the tribes. A few months after, that military force was employed at the Waitara in a case unconnected with crime. The Queen's power, which had not interfered to save men's lives or their property, did interfere to take possession of a piece of land." Sir William Martin admits that "the function of buying land (not at the best a dignified one for the Crown) had, however, been made a means of quietly extending the influence of the Government, so long as that function was exercised with great prudence and care, and with a due regard to the interests of the natives." But (he also observes) that "it may readily be understood (without entering further into the subject) how different might be the effect of another sort of management."

Until the advent of responsible government this prudence and care had been exercised by the agents of the Crown under the direct orders of the Governor. Of forty-three persons whose opinions were sought by the Government in 1856, as having had most experience of native affairs, forty-one gave it as their opinion, that the administration of native affairs should continue in the hands of the Governor, without the interference of the responsible Ministry; and had these opinions been followed, there is every reason to believe that, after the consequences which had resulted from the attempts to buy land in other parts of Taranaki, the purchase of a small block of land at the Waitara would have been avoided, as one that was likely to provoke a war between the tribes, although it could not be avoided without an evasion of the treaty, which bound the Government to buy land if offered on equitable conditions.

When the responsible Ministry came into power this danger was slighted, and the province of Taranaki being strongly represented in the Ministry, it was resolved to make the attempt to obtain for the settlers there the land necessary for the extension and prosperity of the settlement. It was well understood that

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this attempt would be likely to bring about a collision with the natives; but such a collision was considered a desirable event, as it was confidently assumed that a detachment of 200 soldiers would put down any opposition, and effectually convince the Maories of the necessity of abandoning their "dog-in-the-manger policy" of not allowing the occupation, on any terms, of land of which they themselves were incapable of making any use. The subject was openly canvassed in the cabin of a steamer by some of the leading men of the Taranaki settlement, who were satisfied that if the purchase of the land should be followed by the necessity of calling in the military, such a contingency was to be desired rather than otherwise. It is impossible to deny that the case of the Taranaki settlers was one of great hardship, and were a just balance struck between their claims to the protection of the Government and the claims of the natives, it is more than probable that both in a legal and moral point of view it would have preponderated much in favour of the settlers. They had purchased their allotments in England at a high price from the New Zealand Company, before that Company had itself acquired the land to which it sold the title. It happened, however, in the case of the land selected for the New Plymouth settlement at Taranaki, that Mr. Spain, the Commissioner appointed by the Queen "to investigate and determine titles," had found the purchase made by the agents of the Company valid, as having been acquired from the natives who were found in possession or occupation of the land, and, subsequently, from the tribes of Waikato, who claimed it by right of conquest; to whom Governor Hobson had paid 500l. for the cession of that right. This was the only title claimed by the New Zealand Company, which was determined by Mr. Spain in their favour. It seems impossible to read the reports of that gentleman without being convinced of their perfect impartiality, as well as of the soundness of the principles on which he rested his decisions, and of the laborious investigations upon which they were founded. But the establishment of this settlement created a desire amongst the natives to benefit by the high prices paid by the settlers for labour and for produce; and, the times being favourable for their return, many of those who had been driven from their lands by the Waikatos fourteen years before, or had been kept in slavery in the Waikato country, were permitted, through the influence of Christianity, to return, and, returning, claimed the possession of the lands of their forefathers, after having, in some cases, sold the lands they had acquired in Cook's Straits. In deciding that the lands belonged to the Company as having been

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acquired from those members of the conquered tribes who were found in possession, and from those who claimed the right of possession by conquest, Mr. Spain reserved for the natives all the pahs and burial-places, as well as one-tenth of the land, to the extent of 6000 acres; and there can be no doubt whatever that if the Waikatos had been applied to at the time, they would, as in the case of the Ngapuhis at Mongonui, have maintained the right of the Company and forced the Ngatiawas to submission. In forming his decision, Mr. Spain proceeded upon the very plain principle that the Government could only recognise the title to land as existing in those who possessed it de facto, and were able to maintain the possession--a principle well understood by the natives, as well as being in accordance with international law. It would have been an impossible as well as unreasonable obligation, if such could be deduced from the Treaty of Waitangi, to admit or maintain a title in those who had been driven from the land; such an admission would, in most cases, have involved the investigation of still prior titles in an endless series, the respective merits of which there was no rule to decide. Most unfortunately, however, in this case Governor Fitzroy took a different view, and lost no time in reversing the Commissioner's decision, and recognising in their fullest extent the claims of those who had abandoned the country from fear of the invaders, as well as of those who had been permitted to return from slavery. The Waikato chiefs sent various messages to the settlers warning them against making any payment to the returning Ngatiawas, as well as to the latter, desiring them to be at peace with the settlers, or they would compel them. The Rev. Mr. Ironside, a Wesleyan missionary, who had resided many years among the Ngatiawas on the shores of Cook's Straits, where, after having been forced to abandon Taranaki, they had made settlements after having driven out the previous occupants, gave his opinion to the Commissioner in the following words:-- "With reference to the settlement of the land claim question, I have no hesitation in stating my sincere conviction that to compensate the natives residing in the neighbourhood for the lands claimed by the New Plymouth Company would be very injudicious, and might lead to disastrous results, which we should all deprecate. The Waikato chiefs who conquered Taranaki have not acknowledged and do not acknowledge the right of the Taranaki people to sell the land on which they may reside merely on sufferance; they look with jealousy on the proceedings of the returned slaves, still call the country their own, and I fear that compen-

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sating them--the Taranaki natives--would foster the jealousy and suspicion of their former masters, rouse their ire, and lead to an open rupture between the tribes. I may be wrong, but that is my opinion." It is certain that the main body of the Ngatiawas who returned under William King returned with fear and trembling, not venturing to live upon their own land on the north of the Waitara, where they made their cultivations, but building a pah on the south side for the greater security of themselves and the owners of the land, if the Waikatos should resent their return.

Acting under the instructions of Mr. Gladstone, who was at that time Secretary of State for the Colonies, Sir George Grey did all that was in his power to carry out the decision of the Commissioner, but in order to provide allotments for the settlers he was compelled to re-purchase such blocks as he could obtain, as if no previous title had been acquired. Governor Fitzroy had been only able to procure for the settlers 3500 acres out of the 60,000 acres to which the Commissioner had affirmed the Company's title. Some of the settlers were actually compelled to remove from the allotments on which they had built houses, and planted gardens and fields; and the majority were unable to obtain the lots to which they were entitled by their purchases from the Company. It is not, therefore, a matter of surprise that the relations between the Taranaki settlers and the natives should be far from being of the same friendly character as those which subsisted between the settlers and the natives in the North, and that those unfriendly feelings should have been aggravated by the formation of a league to prevent the selling of any land whatever, whether belonging to members of the league, or to others who were desirous of selling what land belonged to themselves. These are facts to which Sir W. Martin, in his paper of 16th Nov., 1863, makes no reference; but their consideration is necessary in order to form a right judgment of the circumstances which he refers to, as proving that the natives were as much sinned against as sinning. The feud and the murders to which he refers, arose from the jealousy of the natives, which combined them in a league to prevent any further extension of the settlement; while the extension of the settlement was necessary to its existence. The settlers saw an almost immeasurable extent of rich country lying useless, and the Government was bound by its adoption of the obligations of the New Zealand Company to put them in possession of certain portions of that country. The Government being too weak to maintain the title which the

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Commissioner had by a solemn decision declared to be vested in the Company, did its best for the settlers by endeavouring to re-purchase for them such portions of land as the natives were willing to sell. And it was in tracing the boundaries of such lands that the sellers of it were murdered in cold blood by-members of their own tribe, who had entered into the league to prevent the sale of any more land and any further extension of the settlement. Can any one doubt the obligation which lay upon the Government to punish such murderers, or to maintain the right of each native to sell his land. But, by endeavouring to make out a fanciful right in the chief of a tribe to interfere with the rights of its members, Sir W. Martin and those who side with him would enlist sympathy in favour of those who, by making the fulfilment of the obligations of the treaty impossible, brought upon themselves the disastrous results which Sir W. Martin laments, in the destruction of their live stock and improvements; leaving only "fragments of threshing-machines among the ashes of a burnt pah," and other similar indications of a prosperity which had passed away. If a more prudent policy would have avoided the risk of such consequences, it was not less the duty of the Government to protect those of the natives who wished to sell their portion of the land, from those who leagued together to oppose the sale; nor is the sympathy the less due rather to the settlers than to the natives, who owed to the settlers all the prosperity which they enjoyed.

The attempt to justify the interference of Wiremu King with the sale made by Teira, from which resulted the war of 1861, has led to a controversy which has extended over years, and filled no end of blue-books; and yet the matter is sufficiently simple, when once the difficulty is got over of drawing the necessary distinction between the state of things in a civilised community where title to land is defined by law and has for ages been maintained by judicial establishments and irresistible authority, and the state of things existing amongst a savage people who have never known law or submitted to authority; amongst whom land had never been a subject of exchangeable value, and where the power of the strong arm overruled all natural rights. The propensity seems almost invincible to impute to the natives ideas in relation to the tenure of land, which had never entered their minds, and rights which have no existence in the absence of law and authority.

By the treaty of Waitangi the Crown was bound to respect the possessions held by individuals in their individual as well as in their collective capacity. The sale made by Teira of the

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small block of land, extending only to about 600 acres, was no encroachment on the wide territory which the tribe possessed in common. It was confined to those spots with which Teira and the families who joined him in making the sale, and their forefathers, had incorporated their labour, and thereby established a right which seems almost as instinctive as that of a man to his own children--a right which is antecedent to all law. When land first became a subject of barter, it was sold by the natives, both as individuals and as tribes, in small patches, as well as in large tracts. Each family was without question allowed to sell the portion which they or their forefathers had subdued from the forest. If such portions were included in a sale of land common to the tribe, the division of the price was a matter of compromise amongst themselves, which, though it often led to angry feelings, was ultimately settled on terms in which they all acquiesced. Until the commencement of such transactions, it is probable that the possession of land by an individual or a tribe had never been a subject which excited the cupidity of another individual or another tribe any more than the waters of the ocean or the air which they breathed; because, in regard to the uses to which they could apply it, the land was as boundless as the ocean or the air. At the same time, there were both tribal possessions and possessions claimed by branches of the same tribe, to interfere with which in an unauthorised or wanton manner would have been resented as an encroachment. According to the traditions in which they all agree, the boundaries of the tribe were fixed on the first arrival of their ancestors in the country. When a canoe touched land, its occupants put up a pole at a certain distance on each side from the spot, and claimed the coast within those boundary marks, and the interior as comprised in two imaginary lines drawn inland from the poles. When the tribe increased, different families cultivated different portions within the common boundaries, and in this manner a subdivision of the tribe had a peculiar claim to a certain portion of the common territory. But there was no law to regulate these possessions, nor was it an object in any one tribe to prevent members of another tribe who, from intermarriages or from other motives, might desire to settle amongst them from occupying land within their boundaries; on the contrary, each tribe was anxious to increase its strength by the addition of new members. If one tribe was driven from its accustomed seat by another tribe it was in revenge for some real or imputed injury, not from a covetous desire to possess land of which they could make no use, and

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from the possession of which they could obtain no advantage. So far as Teira's sale included only the lands which he and those who joined him in the sale possessed by actual or previous occupation (and the Government expressly reserved any portions which might be claimed by others by a similar title), the Government was not only bound to protect Teira in his right to sell, but also to buy the land, if offered on such terms as made it advantageous to the public. The assumption of Wiremu King to veto such a sale was an attempt to exercise lawless power, to which, if it had been attempted before the treaty, Teira as the weaker party would have had no resource but to submit; but which the Governor was bound to put down as an attempt to abnegate rights which the Crown was bound by the treaty to maintain.

As regards Waikato, the "second principal seat of disaffection and disturbance," Sir William Martin's observations all through assume that this disaffection and disturbance arose from our neglect of the duties of sovereignty rather than from the indisposition of the natives to submit to the restraints of law, and from their incurable suspicion of the intentions of the Government. Of all the districts in New Zealand, none was so highly favoured by the bounty of the Government, as well as by the labours of missionaries, as Waikato. But the people of that district had from the first refused to sell land. The distrust reported in every paragraph of the Protector of Aborigines' report of his visit to that country in 1840 had never ceased to exist, but had gathered strength as time advanced. The natives, while watching our proceedings with the utmost jealousy, did not fail to avail themselves of every advantage which we could afford them. They were desirous "to be taught the law, as the missionaries taught them the Gospel;" but the majority of them had no idea of submitting to it. The attempt to set up a King, which their apologists represented as "feeling after a better state of things," was, by the confession of some of their leading men, an endeavour to unite their tribes into a Maori nationality. It was not intended by them all as hostility to the Queen, but it was nevertheless a repudiation of her sovereignty over the territory where the natives had not sold the land. At the bottom of all lay the "incurable suspicion" of the intention of the Government to deal with their lands as the Government had dealt with the lands which the native proprietors had sold to the Queen's native-born subjects. The advocates of the natives have altogether failed to make out any case of ill-treatment of the

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natives themselves which could justify rebellion; on the contrary, the more the subject may be investigated the more clearly it will appear that the natives have been treated with a tenderness and liberality which has no precedent in the dealings of a civilised nation with savage or barbarous tribes; and that if they have not enjoyed all the privileges enjoyed by others of the Queen's subjects, it is because they have refused to submit to the conditions upon which alone those privileges could be enjoyed--a submission to the law.

1   See Parliamentary Paper of 8th April, 1840, where these Acts and their objects are specified at large, as well as the diplomatic proceedings in relation to the appointment of a Resident.
2   Draft Report of the minority of the Committee of the House of Commons on New Zealand of 1841; and speech of Lord John Russell in the House of Commons.
3   See two letters to Sir H. E. Inglis, Bart., M. P., from D. Coates, Esq., Secretary to the Churoh Missionary Society, London, April, 1845.
4   Report on New Zealand, 1840: Evidence of John Ward, Esq., pp. 71, 72, 73
5   But New Zealand was not a Convict Settlement; which circumstance necessitated in the cases of the other Australian colonies a departure from the fundamental rule.
6   Papers ordered by the House of Commons to be printed, 11th May, 1841, pp. 24, 25.
7   Papers of 12th August, 1842, p. 123.
8   A law is, in its very nature, prospective. Legis virtus (hoec) est, imperare, vetare, permittere, punire. --Digest Lib. I., Tit, iii, "To ordain, prohibit, permit, punish, is the essence of law."
9   Parliamentary paper of 8th April, 1840, p. 37.
10   Parliamentary papers of 8th April, 1840, p. 39.
11   Ibid, p. 28.
12   Hansard's Debates, June 17, 1845, page 736.
13   Appendix to Report of 29th July, 1844, page 334.
14   Appendix D to the Journal of the House of Representatives of New Zealand, Session 1862, page 6.
15   Appendix D to the Journals of the House of Representatives of New Zealand, Session 1862, page 6.
16   Ibid, page 8.
17   Parliamentary paper of 8th April, 1840, p. 4.
18   Parliamentary Paper of 12th August, 1842, p. 93.
19   Rewa was a Bay of Islands chief, who accompanied M. Pompallier, the French Roman Catholic Bishop to the meeting for the Treaty of Waitangi, and earnestly urged his countrymen to "send the man away," and not to sign the paper--that if they did, they would before long be slaves breaking stones on the road.
20   Report on New Zealand, 29th July, 1844. Appendix, p. 125.
21   Report of 1844, p. 126.
22   Parliamentary Papers of 21st May, 1846, p. 127.
23   Heke's Letter to Governor Fitzroy in Papers of 2lst May, 1846, p. 150.
24   Papers in continuation of Papers presented 26th August, 1846.
25   Papers of 14th March, 1845, p. 21.
26   Papers of 22d April, 1845, p. 152.
27   Papers of 12th June, 1845, p. 29.
28   Papers of 21st May, 1846, p. 137.
29   While the Company were under the belief that their agents had acquired ten millions of acres to which the natives would acknowledge their title, they held a different language. The following is an extract from the evidence of William Hutt, Esq., a member of the House, given before the Committee of the House of Commons of 1840, 24th July, 1840:-- "In consequence of having understood that I was likely to be examined before this Committee, I expressed to the Directors a wish that they would consider the points most likely to form the topics of my examination, and let me understand their opinions respecting them. They assembled for that purpose this morning, and came to several resolutions, of which I have a copy here, and which, with the permission of the Company, I will read: 'The Court of the Directors of the New Zealand Company having understood that it is the intention of the Select Committee of the House of Commons on New Zealand to examine a member of the Court with respect to the views of the Company in relation to its property in New Zealand, to the general colonisation of the Islands, and to the prospect of raising a loan in this country for defraying the present expenses of Government in New Zealand, resolved:-- That the proclamation of the Governor of New South Wales, bearing date the 14th January, 1840, by which authority is claimed by the Crown alone to interfere with private rights of property in a country which the Crown itself declares to be an independent sovereign State (and which rights were previously acquired by purchase and cession from chiefs, or others, having equally valid powers with those through whom the Crown has since acquired sovereign rights), are so contrary to international law, and so repugnant to justice, as to require that this Company should employ every legitimate means of resistance to their taking effect.'"
30   Papers of 21st May, 1846, p. 73.
31   Papers of June, 1847, p. 7.
32   Papers of 21st May, 1846, p. 73.
33   Papers of June, 1847, p. 68.
34   Ibid.
35   Ibid, p. 30.
36   This notice does not appear in the Parliamentary Papers.
37   See New Zealand Government Gazette, No. 17, August 10, 1847.
38   It is believed that under the influence of the Aborigines Protection Society, to whom her case became known, some compensation was afforded to this native woman; but to what extent is not known; for since the introduction of what is called "responsible government" the former custom of publishing in the Government Gazette all grants made in the colony has fallen into disuse.
39   Papers in continuation of Papers presented in December, 1847, and February, 1848, page 10.
40   Papers presented July, 1849, p., 36.
41   Papers in continuation of papers presented in December, 1847, and February, 1848.
42   Papers in continuation of papers presented in December, 1847, and February, 1848, p. 123.
43   Papers of June, 1847, p. 74.
44   Papers in continuation of papers presented in December, 1847, and February, 1848, page 98.
45   Ibid, page 99.
46   Papers of July, 1849, page 85.
47   The judgment of the Privy Council was as follows:--
"This is a case in which a grant has been made by the Governor of New Zealand under an Ordinance passed to give effect to the report of a Commission issued in pursuance of a previous Ordinance. That report was admitted by the judges to be inconsistent with the Ordinance under which it was made, and that so far, therefore, as the grant professed to be in confirmation of that report, it would necessarily fall to the ground. They were of opinion that, inasmuch as there is a provision in the Statute 3 and 4 Vict., c. 62., under which the charter was granted, that it shall not affect the prerogative of the Crown, the grant might take effect under the general authority on the part of the Governor to make grants. But we are clearly of opinion that whatever the authority of the Governor might be, this is not a grant professing or intended to be made as a matter of bounty or grace from the Crown, but is only intended as a confirmation of that report which was made under the authority of the Ordinance. The grant is founded upon the report, and the report is founded upon the Ordinance. It is clearly contrary to the terms of the Ordinance, and therefore the grant must fall, and the judgment upon the scire facias must be for the Crown." The respondent did not appear, and the case was heard ex parte. --Moore's Privy Council Cases, Vol. VII.. page 84.
48   13th Vict., Session X, No. 4.
49   Papers of December, 1847, p. 64.
50   Papers of l4thMarch, 1845, p. 55, 56.
51   Papers of 21st May, 1846, p. 93.
52   Papers of June, 1847, p. 1.
53   Mr. David Hay, who subsequently authorised the use of his name.
54   Parliamentary Papers of 8th April, 1840, page 30.
55   Appendix to the Proceedings of the House of Representatives for 1862, D, No. 10, p. 6.
56   Ibid.
57   Appendix to the proceedings of the House of Representatives for 1862, D, No. 10, p. 8.
58   Parliamentary Paper of 23d May, 1864, p. 7.
59   Papers of 23d May, 1864.

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