1861 - Hawtrey, M. Justice to New Zealand, Honour to England - V. THE REAL QUESTION AT ISSUE, p 93-108

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  1861 - Hawtrey, M. Justice to New Zealand, Honour to England - V. THE REAL QUESTION AT ISSUE, p 93-108
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WITH an earnest hope and prayer that it may please God to bless the means which Her Majesty's Government has adopted to put a stop to the present troubles, and that firmness may be so tempered with wisdom and justice, that peace may be restored and the honour of England maintained without further bloodshed, the writer would conclude his remarks by referring to what is considered in New Zealand to be "the real question at issue 1."

This appears in a Memorandum addressed by the Colonial Ministry to Her Majesty's Government, which represents that "the grand desire of the British colonists in respect of the natives is to see the Maori people rendered amenable in their dealings with the settlers to British law," or, as it is expressed further on in the Memorandum, "that all the inhabitants of New Zealand should be subjected in their mutual dealings to the control of one equal law."

Now in order to bring this about with justice we must retrace our steps. Strictly British law is only just for Britons. Strictly equal law is only just between those who are equal in every respect. As we have gone amongst the New Zealanders by our own choice and to serve our own purposes, we must take the trouble of using our higher intelligence and experience to devise laws which shall be suitable to the widely different circumstances of the two races. The

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"Native Question" must no longer be considered as "a bugbear;" but as a real difficulty, which we must take in hand and deal with both energetically and justly.

Hitherto this has not been done. Colonial prosperity--imports and exports--the increase of individual wealth--self-government--a constitution framed according to the most approved theory, and on the most liberal principles, these are the things which have wholly engrossed our attention; while, with respect to the natives, whom practically we have found it impossible to make British subjects, we have used one temporary expedient after another, submitting to the inconvenience of an uncertain state of things rather than looking the difficulty in the face; or, if we do make an effort to accustom them to the usages of British law, doing it in such a way that our boon, compared with the solid British privilege which we might have given them but have withheld, has been represented as "analogous to the worthless beads navigators pitch to savages 2."

To deal justly by them we must consider them as they were when we went amongst them--not a horde of wild savages, each doing what was right in his own

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eyes, and only yielding a temporary obedience to the wilder and more ferocious savage who by strength or cruelty gained the ascendancy over his immediate circle, but a people having laws, and institutions, and a social order defined with great exactness, and suitable to their circumstances. Some of these are totally unsuitable to the new circumstances with which we have surrounded them; some are not. Many of them they have relinquished under a religious influence through persuasion and conviction; some they still cherish and tenaciously adhere to. Here, then, is subject-matter for patient, wise, and mature deliberation. Are we, the strangers, to sweep away their old laws and institutions and social order, and forcibly make them subject to our own--or rather to the restrictions and penalties, without giving them the privileges of our own? Or, shall we not consider what part, what characteristic feature of their system may be incorporated into ours, or what portion of our laws may be so given to them as to be in accordance with their own ideas, or whether we cannot give them some equivalent, something to make up to them for those usages which we require them to give up?

When we arrived in New Zealand the people of the country was composed of eighteen nations, each governed by a prince, or great chief, having the title of Ariki, who united in himself the offices of priest and king. This office and title were hereditary, and regularly descended to the eldest son of the eldest branch of the kingly family. The other members of this family formed a class of superior nobility. Beneath these were the lower nobility or gentry, called Rangatiras, a class composed of the chiefs of the numerous tribes of which the nation consisted, and their families. Then came the common people or middle classes, called Tutua; the Ware or lower classes; and the Taurakareka or slaves. Thus in New Zealand, as among us, there were two great divisions of society--the Rangatiras and all above

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them forming the upper division, the Tutuas and all below them the lower division.

Many interesting particulars respecting this social system are to be found in Dr. Thomson's "Story of New Zealand," Part I. chap. v. It would seem that though the order of society was arranged on such strictly aristocratic principles, and so much honour was accorded to birth and hereditary standing, the civil constitution of the people was eminently republican, every individual having a right to influence the decisions of their public assemblies by the free expression of their opinions. From this would naturally flow what has been remarked as a trait in the New Zealand character, that they accost their equals without levity and their superiors without awe. There was no outward prestige of regal splendour in their chiefs, but the various ranks were easily distinguished. Slaves were recognized, not by their dress, but from being noisy and talkative; while chiefs were known from possessing dignity of manners, and that noble feeling of self-respect which renders dishonour worse than death 3.

Now here, in this institution of chieftainship, we have a characteristic feature of their social system, which might very safely and with advantage be incorporated with ours, while the whole tendency of our legislation has hitherto been to ignore it. Practically we have not ignored it, for we could not. It is an existing fact, which we are obliged to notice. Thus the utmost care was taken that none but chiefs should sign the Treaty of Waitangi 4; and when the peace of the country is seriously imperilled, the Governor summons a congress of chiefs as the most effectual means of putting an end to disorder. But our laws ignore it. The law of the elective franchise, so liberal, so popular, so thoughtful of the desires and

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prepossessions of the English settler, ignores it. The law of the Native Circuits Court Act, and the Native Districts Regulation Act, which was meant to accustom the native to the British custom of trial by jury, ignores it; since, according to these acts, a jury composed of men who may have been slaves can be called on to decide trifling matters, indirectly affecting the honour and property of chiefs.

Now it might be argued, that it is useful and expedient to keep alive among a people that elevation of sentiment, those feelings of dignity and honour, which are usually found to co-exist with a regard for ancestry, and which all testimony declares do co-exist with it in New Zealand. But that is not my argument. It is on the ground of justice and adherence to implied agreement, (following in this the example of the New Zealand chief himself, who "rarely broke his word, and never fulfilled promises to the ear and broke them to the sense 5,")--it is to avoid that useless expenditure of blood and treasure which will be involved whenever a sense of slighted honour arouses him to a fresh death struggle,--it is as the only practicable way of representing the native interests in the legislature of the combined people, and framing laws which shall be equally suitable to all and equally binding on all,--that I still plead for giving to the chiefs that fortune, and dignity, and weight in the commonwealth which will make their position as advantageous in civilized New Zealand, as it was in New Zealand uncivilized.

I know that I lay myself open to a charge of great presumption when I pass from the region of general principles into that of particular measures. Without authority, and in ignorance of many things, I feel it almost impossible to do so without damaging the cause I wish to support. And yet one ought to be

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able to give some answer to the question, "What would you do?" It might at least elicit thought, and draw forth a better answer from others. With this qualification I may venture to ask, what harm would follow, if the heads of the eighteen nations of New Zealand were allowed to sit in conference with the twenty members of the Legislative Council? I can suppose the proposition to be a startling one; but is it more startling than a New Zealand rebellion? and I still say, what harm would ensue? A great, a wonderful boon would be given. The whole New Zealand people would probably feel themselves attached to the Crown, and incorporated with the people of England by that one act in a way which they could be by no other: and what would be the harm of it? It would be ridiculous, absurd, unheard of! But would it not be just, and honourable, and faithful to our word?--But these men, if they come to Auckland, must live in houses! And why not build them houses? it will be less expensive than spending a million to put down a New Zealand war.--They must have an income! Would there be any injustice in devoting some of the Crown lands about Auckland to that purpose?--But they cannot speak a word of English! The less they will interrupt your proceedings.--But some of them are still half-savages! Could we do any thing more likely to civilize them, and through them the whole New Zealand people?

Let me ask again, what harm would ensue, if each member of the Legislative Council should do so romantic a thing as to bind himself by a compact of mutual friendship and good faith with one of these chiefs, and should enter with a good heart on the work of carrying it out? one of his offices being to explain to the chief, as far as he was able, the purport and bearings of any measure under discussion. Then, to meet the inconvenience of the difference of tongue, there might be committee-rooms, where the chiefs might converse and debate questions together in the

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presence of some of the members of the council understanding their language.

No doubt it will be said that this would all be child's play. It might be child's play so far as any real influence which they would have in the council, but it would not be child's play in regard to the honour done to them, the allegiance won for the Crown, the peace of the colony, and the faith of treaties!

Again, a similar element might be introduced into the Chamber of Representatives. Each nation might be empowered to elect a representative, or the larger ones two, and some of the smaller ones voting together one. How is it possible otherwise to represent the native interest? It is very well in England to vote by territorial divisions. But even here we have in our our borough members, and members for the great manufacturing towns, and members for the universities, a representation of special interests. But in New Zealand one whole interest, the interest of the original possessors of the soil, the owners at this day of three-fourths of it, is totally unrepresented or completely swamped.

Some chiefs, some nations might, perhaps, not avail themselves of the privilege. It is possible. And yet I think that some such proclamations as the following, or writs issued to the same effect, would have a wonderful influence in promoting that grand social amalgamation which is so much to be desired:

"From this day forth it shall be lawful for the Ariki of each nation of New Zealand to sit in council with the Legislative Council of New Zealand, and to deliberate and vote on matters touching the honour of Her most gracious Majesty Queen Victoria, and the common welfare of the united people of New Zealand."

"From this day forth it shall be lawful for each nation of New Zealand to elect by their votes two

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Rangatiras 6, to be their representatives in the House of Representatives of New Zealand, and to deliberate and vote on matters touching the honour of Her most gracious Majesty Queen Victoria, and the common welfare of the united people of New Zealand."

This would not be exactly according to the forms and precedents of legislation, but I cannot help thinking that some such measures would act as a great and beneficial alterative upon the constitution of New Zealand, and bring about a state of things the advantages of which would be far greater than its disadvantages. I cannot help thinking that it would lead simply and easily to the enactment of such laws as would be respected and obeyed by all. I believe it would greatly promote sentiments of honour and good faith, and raise instead of depressing the general tone of feeling throughout the Colony.

Again, one of the symptoms of the present disorder in New Zealand is their desire to have a flag as a symbol of their political existence. The flag, too, was the grand bone of contention in Hone Heki's rebellion. Why not turn this source of trouble into a source of order? What if instead of one flag we gave them eighteen, it matters little whether as the flag of each several nation, or as the family banner of the Ariki of the nation. In England every Ariki, and every Rangatira has his flag. Nay, there is not an English Tutua who has made his fortune by land-jobbing in New Zealand, or sheep-farming in Australia, who could not on his return to England procure himself at the Herald's Office a flag to flaunt on gala days in honour of his family, and be to all future generations a symbol of their social elevation! Why

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withhold from a people among whom superiority of birth is so recognized and prized this very harmless mode of keeping up, in their altered political condition, a measure of that social distinction which they enjoyed before? Why refuse them this little gratification of a very natural feeling? Is this treating them as "British subjects?" But British subjects pay for their coats of arms! And has not the New Zealand chief paid for his ten thousand times over in signing the Treaty of Waitangi? This may all be thought very simple and childish, but there is sometimes a wisdom in childish simplicity; especially when it leads us to do as we would be done by. And where should wisdom be more likely to coincide with childish simplicity than in dealing with an infant people?

Take an instance of the sort of law that might be proposed for the enactment of such a united Legislature. Reference has been made to the Acts by which it was proposed to accustom the native to the practice of trial by jury, by allowing them to decide in this way on local matters of no great importance 7. In matters of higher importance, where a native has killed a settler, or a settler has killed a native, we do not allow him, though a British subject, to sit on the jury at all 8. And we have heard the complaint that where a native kills a native British law does not interfere, but lets things take their course 9. Now I think it would not be difficult to get it enacted by such a mixed Legislature as I have described, that where a native kills a native he shall be tried by a jury of his peers--his peers in race and peers in rank--before a British judge, and with the assistance of British lawyers. There would be nothing in this

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hurtful to the feelings of any class of natives, and it would tend to the spread of order and law and peace throughout the whole community. And it might be hoped that the work of introducing various laws and institutions suitable to the mixed character of the two peoples, and the abolition of customs and usages, which in the present state of things are only detrimental and embarrassing, would gradually and happily proceed.

Among these latter would be found the whole land question, native title, tribal tenure, property in common, &c. Now to break them off from their attachment to these customs, which are no less obstructive to their own prosperity than to that of the Colony, I should like to try the effect of some such apologue as this:--

In a country far away beyond the sea there is a large and beautiful lake. On its shores are many towns, full of fine buildings. The hills that rise from its banks are covered with gardens, and corn-fields, and pasture lands. And on its waters are stately canoes with gaily ornamented prows, and filled with bold and joyous rowers, who pass from side to side of the beautiful lake, and carry merchandise from town to town, and gain wealth and honour for themselves.

This beautiful lake was once a valley, and on its steep sides now buried below the water there was a forest of large and lofty trees. But it happened that the side of a great mountain gave way, and filled up the mouth of the valley, and the streams which poured into it from the mountains had no outlet, and so they raised their waters higher and higher. Then they said, What shall we do with our large and stately trees, shall we leave them to rot below the water? No, we will make them into great canoes to carry us about upon its surface. So the trees were taken up by the roots, and the canoes were made, and when the waters had turned the valley into a lake, the towns were built, and the hill sides covered with rich fields and pastures.

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The valley is New Zealand as it was. The lake surrounded by hills is New Zealand as it will become. The fall of the mountain is the order of events permitted by God's providence. The streams from the mountain sides are the strangers coming in. The trees are the chiefs and people of New Zealand. Their roots fastened into the earth is their attachment to the customs and usages of New Zealand in its savage state.

Now, as it was necessary in order to preserve the trees to take them out of the ground, and to give them a new and beautiful form suited to their new circumstances, so, if the chiefs and people of New Zealand would be preserved, and share the benefits of the altered condition of their country, they must give up their attachment to those customs which are unsuited to their new state, and take a new form and character; and then they will be lifted up by the flowing-in among them of a European population instead of being overwhelmed beneath it, and instead of rotting beneath the water, they will receive a new principle of life, and derive wealth and honour and many comforts and advantages from the British settlements planted among them, like the towns on the shores of the beautiful lake.

But if we tell them this, we must be true to our words. If they give up their tribal tenures for individual titles, we must take care that the arrangements following thereupon shall be according to the strictest principles of justice and honour, and respect for all that is really valuable and great in the old institutions of the country. Things should not be done in a hurry. Tribes should be allowed to commute their tribal for an individual right as parishes were allowed to commute their tithes. There should be commissioners to see that it was done fairly. The chiefs portion should be in proportion to his chieftainship, that of the rest of the people in proportion to their relative political consideration. I believe

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that if the division was left altogether to the chiefs, they would be more inclined to wrong themselves by taking too little, than to wrong their tribes by taking too much, the custom of possessing property in common having made them insensible to the importance of individual wealth. Indeed, a generous indifference to individual gain is one of the marked characteristics of the New Zealander. When the chiefs have received payment for land they have been known to divide nearly the whole of it among their tribe, retaining little or nothing for themselves. This ought not to be allowed when the land is divided individually among them, and the sort of paramount authority over the whole of the land, which the chief has hitherto possessed, done away with.

Then comes the question, under what title and with what privileges or disabilities annexed are they to hold the land? Is the Crown still to have the right of pre-emption? Supposing them to have the right of selling to whom they please, may not something still be done to prevent them from divesting themselves of the whole?

I would still earnestly advocate such a system of Reserves as is described in the foregoing pages, as the best and fairest price which the Crown can pay for the land which it acquires from the natives. I have heard that the price now paid by the Crown is a shilling an acre, but what is even that, or what are even ten shillings an acre to the value which land must acquire if colonization advances favourably? It is because there is no limit to the amount of this increase of value, that I urge it as the only fair way of remunerating the native for the wild land, the rough material of the future wealth of the country.

Mention has been made of Mahinera, who is described as "decidedly the most loyal, intelligent, wealthy, and powerful chief in the southern portion of the island." I should like much to know whether he is not one of those southern chiefs whose "Reserves"

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have made them men of considerable wealth? If so, it proves that our best way to make chiefs loyal is to make them wealthy, and the way to make them wealthy, and at the same time to interest them in the progress of the colony, and to amalgamate them into one people with the colonists, and dispose them to submit to one general law, is to give them land interspersed among the lands of the colonists and made valuable by their presence. Why should not certain parts of those portions of the Crown lands which will be the first to produce a rental, be set aside for this purpose? They need not be in blocks of a hundred, or of forty, or even of ten acres. Much smaller portions might be set aside. The very circumstance of their being small, and being contiguous to occupied land, would render it all the easier to get rent for them. And these rents might be made use of as at least part of the compensation to the native for the sale of his land to the Crown.

The value of the property possessed by the colonists in New Zealand is estimated by one of their number 10 at nearly 10,000,000l. By far the greater part of this must be the produce of the soil of New Zealand and its improved value by colonization. This proves two things: on the one hand, the great amount of our debt to the New Zealanders on account of the great wealth which they have already enabled us to create by giving us possession of their land; on the other, the great facility with which we should have been able to repay that debt, had we from the first reserved but a very moderate proportion of the land which they made over to us, for the purpose of paying them in the only way in which it was possible to pay them with justice. It would have been an easy matter for the Crown, when it obtained power through the Treaty of Waitangi to give secure titles to all the land held in New Zealand, to have imposed this small tax of a reserve for the native people on all land

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already purchased from them by Europeans, as well as on all land to be obtained from them through the intervention of the Crown in future. Such reserves would have afforded an easy means of giving substantial remuneration to those chiefs and tribes who had ceded their lands to the Crown, by making them wealthy instead of poor; they would have been the best possible refutation of the painful belief which has been growing upon the New Zealanders, that they will eventually be dispossessed of their land altogether; and therefore the most effectual antidote to the land-league and all its lamentable results.

In reference to the question in dispute between the Governor and Wirimu Kingi I have hitherto said nothing, feeling that it was not a question with which I had any thing to do. But I would just say before I conclude, that looking at it broadly, it appears to me that if we give to the Treaty of Waitangi the liberal construction it ought to receive, considering that its terms were enunciated by ourselves, and the other party had not the knowledge requisite even to propose a modification of them, the natives cannot exercise their right to the "undisturbed possession of their lands so long as they wish to retain them 11," in the case of land held by tribes in common, as all native

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land appears to be, unless by the vote of the tribe, or the will of the chief. It also seems to me to have been plainly intimated that some forcible change was about to be made in the principles which had hitherto been adopted in the purchase of land from the natives by the Crown, and that the proclamation of "fighting law" gave to Wirimu Kingi no other alternative but to fight.

With regard to the King movement, treasonable as it sounds in the natives to talk of withdrawing their allegiance from the Queen, I think the treason is more in sound than in reality; they cannot think it very disloyal to talk, as they have been allowed to talk for the last five years without interruption. They feel that hitherto they have in point of fact had no ruler, and they do not think it unreasonable that they should have one of their own within their own borders. It is remarkable that at a late great native meeting at Hawke's Bay, to which the Superintendent of the district and other influential Europeans were invited, and where they were treated with the greatest courtesy and hospitality, though the feeling of the meeting was decidedly favourable to the Maori King, a proposal made by one of the English speakers that they should memorialize the Queen and Grand Runanga (or Parliament) of England was received with evident satisfaction. This is not like a real rejection of allegiance.

May the writer of these pages be allowed, in taking leave of his readers, to utter a heartfelt desire, not unmixed with hope, that among them may be those, who, regarding with some approbation the views he has expressed, will have the power and feel the disposition to help them into life. He trusts it will appear that the deep interest he takes in the material prosperity and political importance of the native race is perfectly consistent with a hearty patriotic interest in the welfare of New Zealand as a British colony. What he feels is that England has

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now the noblest opportunity for founding a great nation within the shores of New Zealand, and that that nation will be far greater, more generous, and happier by taking pains to give due dignity and weight to the ancient lords and possessors of the land, than by suffering them either purposely or through neglect to sink down into a despised class and at last disappear.

Oh that England would give this example to mankind! She stands prominently forward as the great philanthropic nation of the world. She would go to war rather than hand over a fugitive slave to the tender mercies of an enraged master. She regards with fixed displeasure the conduct of her transatlantic sons in carrying the ancient people of their continent further and still further from the pale of civilization, while they still hem them within narrower and narrower boundaries. Why will she not befriend her New Zealanders with something more than negative benevolence? A people too so like herself! who have shown themselves, with all their natural ferocity and pride, so very submissive to her pleasure, so very desirous and susceptible of civilization! Who have of themselves thrown off half their savage power and importance, by following her example in giving freedom to every slave within their shores! Let them not, through our apathy, be sufferers for their good deeds!



1   New Zealand Examiner, Dec 17th, 1860.
2   Thomson's "Story of New Zealand," vol. ii. p. 274.--The writer cannot make this reference without quoting the following notice which he has just read with deep pain in the New Zealand Examiner of Feb. 14th, 1861:--
"It is with profound regret that we have to announce the death of Surgeon-Major Thomson, M.D., formerly of the 56th regiment, and the distinguished author of the 'Story of New Zealand,' a review of which appeared in the first number of the New Zealand Examiner. Dr. Thomson died suddenly at Tien-sin in consequence of the bursting of an abscess in the stomach. In Dr. Thomson we have lost a warm friend to the cause of New Zealand; and we may here be allowed to state that he was among the very first who wished us God-speed in our endeavours to promote the interests of the colony."
3   Thomson, vol. i. p. 94.
4   Parliamentary Papers, May 11, 1841, p. 102.
5   Thomson, vol. i. p. 86.
6   If this should appear too exclusive a term, I may remind my readers of our own--knights of the shire.
Ridentem dicere verum
Quid vetat?
7   The Native Circuits Court Act, and the Native Districts Regulation Act.
8   Thomson, vol. ii. p. 272.
9   "We are allowed to fight and kill each other as we please." See p. 22.
10   Mr. Brodie's Letter in the "Times" of Dec 25th.
11   The Second Article of the Treaty is as follows: "Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish or desire to retain the same in their possession. But the chiefs of the united tribes and the individual chiefs yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them on that behalf."

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