1966 - Best, A. D. W. The Journal of Ensign Best, 1837-1843 (Ed. N. M. Taylor) - [Appendices] p 401-436

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Appendix 1

Best made this index of his voyage on a loose sheet of paper, hand-ruled in columns.

BEST'S INDEX OF THE VOYAGE

Events	Date June	Page
Embarked on board James Pattison	26th	1
Left Deptford for Woolwich	29th	3
"Man overboard" Wilson 80th	"	"
Recieved 180 Male convicts	30	5
Tow'd to Gravesend	July 2nd	6
Arrived at Sheerness, Carried away Mizen Topsail yard	3rd	7
Recieved 90 Male prisoners	5th	7
Night alarm	10th	12
Sailed from Sheerness	12th	14
Arrived at the Downs	13th	15
Sailed from the Downs	16th	18
Passed Alderny	20th	19
Saw a sail Schooner Bd Madiera	24th	22
Portuguese bark homed bd	25th	23
Short remarks on punishment	"	26
Passed Madeira	30th	28
Saw first flying fish	31st	29
Sail astern overhauled us	August 1	31
A Finner alongside	2nd	32
Entered the Tropics	3rd	33
Cook resigned Ship astern	5th	34 35
Sentry Hill asleep on his post	"	36
Passed a suspected slaver	--	37
Homeward bd Ship Splendid appearance of sea		" 37
Sail passed to leward	13th	38
Punishment Parade	18th	43
Crossed the line Sunday	20th	46
Shot 1st bird Booby	21st	48
1st appearance of Southern Cross	22nd	49
How to fill a bottle	24th	52
Saw three sail	26th	55
First Cape Pigeon	30th	60
SHARKS	31st	61
Punishment Parade	Sept. 1st	63
Sail, Sow Farrowed	"	"

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Events	Date	Page
First Albatross	Sept. 2nd	64
Nearly run Down	4th	66
Boy whipped	5th	67
Alarm in Prison	6th	68
Passed Meridian of London	10th	76
Man overboard	12th	77
Meridian of Cape passed	16th	82
Account of Ghost	17th	83
Caught Pigeon	"	84
Shot Albatross	19th	87
Maginal Clouds	"	55
Carried away Mn & Mzen Top.G.M.	20th	88
Specimen of Merchant Service	"	90
Expose in Prison	27th	91
Tiller ropes Jammed	22	93
Shot Albatross	23	95
Carried away Gaff	24	96
Double sentry down main hatch	25	97
Days run two hundred & fifty	26	98
Black Molymawk described	28	101
Sentries dozy	29	"
Man Overboard	Oct. 1st	103
Bridge hurt arm	"	105
Kits sold	2nd	55
Cross Jack yard sprung	3rd	106
Goats house fetched away & consequences	"	107
Alarm of fire	"	"
Arrival of the "Ocean child	7th	110
Bed chest stove & mended	7th	111
Young Rhinoceros for dinner	8th	112
Passed Meridian Cape Lewin	"	"
Mrs Brscoe reported for abuse	10th	114
Whales seen	11th	116
Young the Prsoners account	12th	117
Complaints of Barclay & Shonk	13th	118
Caught white molymawk. Description	15th	120
Entered Bass's straits Singular appearance in sky	18th	123
Rodundo	19th	125
Do. Described Crocodile rock	20th	126
Quarrel between 2nd Mate & Guards Cook	"	128
Saw sail	21st	128
General inspection	22nd	129
Passed Cape Howe. Whales	"	59
Mrs Briscoe sent off Poop	"	"
Disturbance in Prison	"	"
Passed Mount Dromedary. Water	23rd	131
Alarm in Prison	"	"
Passed Pigeon house	24	132

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Name	Crime	Date	Punishment	When Forgiven
Wilson 80th	Falling overboard	29 July	Grog stopped one week
Wilson 80th	Talking on Post	6th	D° D° D° D°	10th
Wilson 80th	Insolence	13th.	Kit Drill, Grog Stopped	15th.
Benson 80th	Insolence	23rd	Handcuffs Grog Stopped
Harwood 28th	Striking a Comrade	30th August	Handcuffs
Hill 4th	Sleeping on post	5th	Impd 2 nights Grog Stopped
Sheering 80th	Disobedience	"	Grog stopped one week
Wilson 80th	loosing shoes		Do Do until found
Wilson 80th	Sitting on Post and insolence	15th	Impd four days & nights handcuffs, Grog stopped
Markham 80th	Talking to prisoner on post	20th	Impd two days & nights, Grog stopped one week
Markham 80th	Trafficking with prisoner on post	23rd	Struck off duty prisoner, at large for trial at Sidney	Sept. 20
Cooper 4th	dirty on Parade	22nd	Grog stopped one week
Markham 80th	Sending Grog below	30th.	Grog stopped
		Sept.
Benson 80th	(Trafficking	6th	Grog stopped
Sheering 80th Sheering 80th	Disorderly and mutinous Conduct	"	Impd for the night, Grog stopped
Cooper 4th	Spitting on Prisonr	-	Grog stopped
Wilson 80th	Fighting	7th	Grog stopped
Sheering 80th			Grog stopped
Shonk 80th	quarrelling	22nd	Grog stopped	24th
Ferguson 80th		"
Wilson 80th	Interfering	"
		Oct.
Murdoch 80th	Insolence	1st	Grog stopped	Oct.
Wilson 80th	Gambling & lying	6th	Grog stopped	9th.
Wilson 80th	Fighting	14th
Ferguson 80th	"	"	Grog stopped
Harwood 28th	Insubordinate Conduct	16	Grog stopped
Shanks Grend 80th	Dirty at Inspection	22nd	Grog stopped

Appendix 2

FROM BUNBURY'S 'REMINISCENCES'

A. Bunbury, Reminiscences of a Veteran, III, p. 2.

'I had lent a small boat to some of the officers to fish with, in a sort of inner bay separated from the sea by a ridge of coral over which the tide dashed, and afterwards receded by a very narrow channel with great violence; the boat was... manned by men who had been recommended for good conduct on a previous occasion, and whilst waiting for the arrival of the officers at high water, a gang of prisoners who were at work close by attacked and carried off the boat. Two chained gangs were also on the spot, but as these could not move, they waved their working implements over their heads and cheered those making the attempt to escape. The boatmen made no resistance, but pretending to be vastly alarmed jumped into the water.... No one of the free population ever supposed that the coral reef could be passed over; but to the surprise

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of all, the boat dashed through the surf, and gained without injury the open sea. The alarm was soon given, and two boats with a guard of soldiers in each, armed with cutlasses and pistols, were sent in pursuit. After rounding the Napian Rock the boat was overtaken, the crew throwing up their oars, and begging not to be fired into by the guard. The boat which made the capture was commanded by the Engineer officer, Lieutenant Lugard; the fugitives were indifferent rowers, not being regularly bred boatmen, and were much fatigued when they gave in; but notwithstanding their fatigue the officer obliged them to pull back to the island with the guard-boat in tow. On their arrival I had them tried and well punished.'

B. Bunbury, op. cit., II, pp. 322-9.

'I have selected this incident from many others, as I conceive it to be illustrative of the fortitude and secrecy shown by some of the convicts.

'One dark evening, the house of the Protestant clergyman was broken into just as the family were about to retire for the night. Two men entered with their faces blackened and with hospital dresses on. They told the ladies not to be alarmed and began their search: a work-box was locked, of which they demanded the key, and in it they found one or two sovereigns. They threatened the clergyman with death if he attempted to move or give the alarm. Having collected all they could carry, they departed... [towards] some outbuildings where an old prisoner was permitted to sleep with one or two assistants who had charge of the dairy. The road they took was found the following morning strewed with various articles, and amongst others the work-box. The family did not give the alarm for some time afterwards for fear the burglars should return. In the prisoners' barracks and hospital all were reported present and safe under lock and key. Of course suspicion fell on the dairymen ... but nothing could be proved against them....

'The surgeon in charge of the Establishment was a person of very intemperate habits and I believe seldom went to bed sober. One night retiring to rest well-charged as usual, he dreamt that two well-known maniacs, who were kept chained to their beds in the hospital for a long period before I arrived on the island, had stood over his bed each with a lighted candle in his hand. Two or three hours afterwards he became thoroughly awakened, when the dream made so forcible an impression on his mind, that he at once determined on getting up and going to the hospital, in order to ascertain whether it had been an apparition or a reality.

'... he took a light and went direct to the cells where the two maniacs were confined. They were found to be asleep; but on turning down gently their bedclothes, the shackles of both were found removed from their feet. The rivets had been so arranged that they could be removed at pleasure, and put on again. [It was suspected] that the doorkeeper and the amanuensis of the hospital knew something of the robbery of the clergyman's house... It was not the first time that the ghost of these maniacs had appeared at the dread hour of midnight....

'The next day, one of the maniacs, named McManus, having entirely recovered his reason, expressed a desire to have an interview with me. He was a person of very good address, and I told him if he had any revelation to make... I could hold out very slight hopes of any mitigation of his punishment. The list of crimes against him was too formidable.

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If he escaped now, he would have to submit to his old sentence, and work in heavy irons.

'This fellow's father and sister had both been executed in Van Diemen's Land, from which penal colony, when a convict, he had been sent to Norfolk Island. He was a murderer, and his many subsequent attempts to commit other murders exceeded all belief. Unfortunately for him, he was what the other convicts termed a flash man, and for his proud preeminence in villainy was classed as one of their leaders; a very dangerous distinction, for on the first symptom of flinching or of resolution to reform, he would be by the other convicts considered a spy, and if not murdered, subject to every description of persecution. The other maniac was a similar character, though not quite so desperate and daring.

'McManus told me he expected no mercy or mitigation of his former sentence; but death would be acceptable to him. He was weary of life ... [but] he could prevent others being suspected who had nothing to do with it. He then told me the whole story; the amaunensis knew and connived at his absence, and had received as his share in the robbery, one sovereign and other trifles, which would be found in a dung heap, not far from my office. They had obtained little plunder. A daring spree appeared to have been the principal object.'

When tried, the other 'maniac' maintained his pretence of idiocy, with vacant stare fixed upon Bunbury, and mouth half open, giving a vacant laugh when asked if he had any reply to the evidence. Bunbury accused him of shamming, and ordered him to be taken out and immediately flogged with three hundred lashes. 'This brought my innocent to his senses. He sprang to his feet, wanted to make his defence, declared that all that had been urged against him was false; but I told him it was too late...'

In McManus, Bunbury thought there was still some lurking good and he decided to give him a chance. 'His reply was short, but much to the point. "You are not deceived, Sir, you may try me."

'He got lighter chains and the engineer officer found employment for him in the yard amongst the stone-cutters. At first the other convicts at work there did not like his proximity, particularly the overseers. He had, when in close confinement, attempted to kill one, by striking him with a towel in which he had put a stone, which he tore up in his cell. ... He afterwards became a great favourite in the yard, and learnt to become an excellent stone-cutter. He continued to behave well the whole time I remained on the island.... Under the social system which was introduced some time after, he relapsed and was, with many others, tried by a special commission from Sydney and executed.'

Appendix 3

THE KORORAREKA AFFAIR

Diary of Dr John Johnson, 17 March to 28 April, original in Auckland Public Library, microfilm in Alexander Turnbull Library:

'20 April 1840 - Went to Kororareka to join Bench of Magistrates who were to assemble at Mr Shortland's to take depositions for the committal

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of Kihi the native who was suspected of the Murder of the unfortunate shepherd at ------. The missionaries had taken a good deal of trouble to trace out the case, and there appeared little doubt but that he was the culprit. Mr Shortland's residence being too small for the assembly collected which consisted of almost all the inhabitants of the Town and many Natives, the Court was adjourned to the Church as being the only place large enough for the purpose, as it was understood that the assembly would be increased by the Tribe of whom Maupiro and Riti & Campbell or Kamura were the Chiefs, and to whom belonged a woman and a young Chief, the principal Witnesses and who it was understood wished to see the British mode of investigating crime.

'The Prisoner being produced, an illooking beetle browed fellow, the investigation commenced by the examination of the Witnesses to identify the body, this being completed, the evidence of the Woman was wanted to identify the prisoner, she was accordingly sent for to the tribe that had just landed from their canoes they returned for answer that they would not send her unless they were permitted to accompany her armed into the Court, this demand was firmly denied by Mr S. Mr Smart and myself. Upon this they came to the number of 150 armed with Musquets stripped to the waist and danced a War dance in front of the door and loudly demanded that the prisoner should be brought forth that they might kill him. This was again firmly denied, they then asked to see Mr Shortland and talk with him, he refused to go out, informing them that if they chose to enter the church unarmed they might there see him, but as they seemed disposed to enter the church by force and seize the prisoner, we removed him to the back of our seats and in the mean time having got half a dozen Musquets and ammunition smuggled in, we armed two police men and four sailors who volunteered to remain the rest of the audience having got out of a back window, we placed them at the door firmly stating that we would resist any attempt to enter by force. We were all of one opinion, that it was a critical moment, and that it was our duty to maintain the integrity of the first British Court of justice held in New Zealand and not to condescend to parley with armed Men endeavouring to intimidate us, but at the same time we deemed it necessary to call in the Military to our assistance and accordingly despatched a Messenger to Major Bunbury for the troops under his command. The boats of the Whalers and other vessels willingly pulled up to Okiato - our firm attitude and perhaps also the knowledge that the Soldiers were coming seemed to parylize the Natives and they returned to the beach firing their musquets in bravado. The boats soon reached Okiato where the troops were engaged in pitching their tents, but the alarm being sounded they were soon under arms and in less than an hour and a half from our sending for them were landed on the beach. In the mean time forty of the inhabitants had armed themselves and these irregulars were placed under the command of Liut. Smart.

'As soon as the troops were formed they advanced along the beach headed by the Major and Mr Shortland, whilst the militia were ordered to take a circuitory route through the brushwood at the back of the town and take up a position on a bank commanding the canoes drawn up on the beach. The promptitude with which the troops arrived, their steady, silent, but rapid advance along the beach so unlike the straggling order and noisy habits of the Maoris, completely cowed them, they either laid down or hid their arms and when the troops arrived to within

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50 paces of them, they were all squatted on the ground with countenances indicative of anything but ease.

'Mr Shortland then stepped forward and said that before he would hold any parley with them, the Woman must be delivered up, this was immediately done. He now went on to say that they had come to speak to him with arms in their hands, he was come to them to speak to them in a similar manner, they were now on equal terms. They came to prevent justice he came to enforce it. What had they to say? Would they promise him to produce the Witnesses the following day? Several of the Chiefs got up seized him by the hand and said they would do so, he said he took their word and would be glad to see them at the Court unarmed, this they promised. Upon these conditions he said he would withdraw the Soldiers, upon this all arose shook hands with him and by their looks showed what a load was taken from their minds and how happy they felt at having escaped so easily. The bugle sounded the retreat and the troops reembarked. Mr S. then returned thanks to all such of the Inhabitants as had boldly come forward & to all the Captains of the Vessels in the harbour amongst whom were many Americans.

'Thus ended an affair of some moment in the annals of the British Colony of New Zealand, for had the slightest fear been shown on the part of the Magistrates or had the demands of the Natives been for a moment listened to, by producing the prisoner whom it is believed they intended to massacre, under the specious pretence of his having murder'd a pakiah on their territories, a precedent would have been established which would have rendered it difficult to have administered justice in future. And it is to be hoped that this example of firmness on the part of British Magistrates will not be lost upon the Natives.'

On 23 April Johnson wrote that he again attended the Court, the natives assembled in a peaceable manner, bringing the witnesses, and Kihi was committed to take his trial for the murder. 'The evidence was interpreted to the chiefs and they expressed themselves satisfied, but hoped we would not hang but shoot him.'

Henry Williams, the missionary, thought the whole affair quite unnecessary.

'A murder had been committed at Puketona, between the Bay and the Waimate. A European shepherd (Patrick Rooney) in the employ of my sons at Pakaraka, had been murdered by a native (Kihi), who was discovered and delivered up by the natives to the authorities at Kororareka. Mr. Shortland was in the act of a magisterial examination of the charge against this man, in the church, Mr H. T. Kemp acting as interpreter, and Edward Williams present as one of the witnesses; neither of them being at that time in connection with the Government.

'During the examination, Haratua, at the head of about three hundred natives under arms, landed from Waitangi, and made a rush towards the church, saluting the court with the war dance. He demanded the prisoner should be handed over to them, that they might despatch him at once, Haratua expressing his indignation that the shepherd employed by his own pakehas should have been so brutally murdered....

'Seeing the consternation produced in the church, Edward Williams went out to the natives, and told them that having made a display of their zeal they had better retire, and leave the authorities to deal with the prisoner. To this they at once agreed, and drew off to their canoes

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at the lower end of the beach, whither Edward Williams accompanied them.

'While he was with them it became known, much to the surprise of all, that Mr Shortland had sent to Okiato for the troops. Edward Williams suggested to the natives the propriety of embarking, but they replied, "No; if he has sent for the soldiers we will remain and see what he intends to do."

'After much bustle, noise, and delay, the troops, about eighty in number, were landed, and drawn up with loaded muskets at the upper end of the beach. Mr Kemp and Edward Williams waited upon Mr Shortland, and endeavoured to explain that the natives had no hostile intention, having come over to make a public display of their abhorrence of the deed. Mr Shortland in a passion replied, "I will not be dictated to by anyone; go and tell those Maories that if they do not lay down their arms immediately, I will fire upon them." Edward Williams returned to the natives, and explained in a quiet way that it was ignorance of Maori character on Mr Shortland's part that made him act as he had done; that they had better move off at once, and he would remain amongst them till they had embarked. The natives at once complied, taking their arms with them.

'Had a trigger been pulled on this occasion, this would have been the beginning and the end of the Colony of New Zealand.' - H. Carleton, The Life of Henry Williams (Auckland, 1877), II, pp. 21-2.

Kihi, who came from Tauranga, left to Maketu, on 7 March 1842, the dark distinction of being the first Maori to die on a British scaffold; for Kihi died in prison of dysentery before his trial. - A. S. Thomson, The Story of New Zealand (London, 1859), II, p. 25.

Appendix 4

SOME TREATY SIGNATURES

It is a pity that Best did not date this treaty signing, as a date here would cast a little light on the confused mass of names of northern chiefs on the treaty. It was some time between 11 and 22 May, quite probably the eleventh. James Buller, Wesleyan missionary at Tangiteroria, Kaipara, on 9 April wrote in his journal (manuscript, Alexander Turnbull Library) that he had received a letter from Shortland, acting for the Governor, which was accompanied by one each for Tirarau, Parore and Mate whom he wished me to persuade to go to the Bay'. Tirarau was the leading chief in Buller's district and Parore a younger relative. On 5 May Buller wrote to Shortland per favour of Captain Heale of the Aurora which had been wrecked going out of Kaipara on 27 April. - 'Tirarau intends going to the Bay of Islands in company with Captain Heald [sic] and party and you will therefore no doubt have an opportunity of seeing him. I have every reason to suppose he is well disposed towards the Government.' This was received on 11 May. (See Official Correspondence Relative to the Treaty of Waitangi, Photostat, Alexander Turnbull Library.) On 6 May Buller's journal notes that Captains Heale and Symonds will set out for the Bay tomorrow.

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On the original treaty, heading the first column of names are those of Kawiti, Tirarau, and Pomare. Pomare's is dated 17 February by his witness, Clendon, and immediately beneath it is the signature of Hone Heke, the first man to sign on 6 February. The 'son' of Tirarau who, according to Best, signed with him, is rather mysterious, but in the second column of names, opposite Tirarau's, is the name Taurau; and Taurau was brother to Tirarau. (See Hare Hongi, 'On Ariki and incidentally Tohunga', J. P. S. 1909, Vol. XVII, p. 86.)

Hobson writing to Lord John Russell on 25 May 1840 (P. P. 1841/311, p. 16) said he had sent Shortland and others with the treaty to Kaitaia [23 April to 2 May] where Shortland had 'succeeded to the fullest extent'. A little later in the same dispatch he wrote 'I assembled here, on the 15th instant, the chiefs of Kaitaia, who gave their signature without hesitation'. It seems possible that Hobson, whose Maori names were not very accurate, meant 'Kaipara' in the second place. But Best's remark that this assembly was before Hobson's move from Paihia to Okiato, on 13 May (see note No. 99), points strongly towards 11 May.

Appendix 5

AUTHORITY AT PORT NICHOLSON

A. Though E. J. Wakefield's acid account of the assertion of the Queen's authority at Port Nicholson is well known it seems worth quoting here, if only to balance Best's truculence towards the Company.

'It was rumoured that Captain Pearson and some of his passengers had reported us at the Bay of Islands as "a turbulent set of rebels, who were establishing a republic at Port Nicholson", and that the thirty soldiers had been sent to quell the rebellion! It was added, that the invading force had held no communication with the shore, the prudent Colonial Secretary having probably deemed it advisable to reconnoitre before landing on the insurgent shore.

'Merry and loud were the jokes that rang through the tents up the Hutt, whither I carried the news. Bombastes Furioso, Tom Thumb and Jack the Giant-killer were quoted and parodied, and some hours' amusement was derived from this ludicrous mistake of the Government as to out hostility and the overwhelming force which they had sent to exterminate us. All, however, were delighted to know that we were at length recognised and claimed by our natural protectors; and the relief from all possible insecurity which seemed to be assured by the event, helped not a little to maintain the cheerful good-humour which laughed at the "questionable shape" in which the event came.

'The first measure of the Royalist forces was to send a man on shore the next morning to pull down all the New Zealand flags which he might find hoisted. This was probably an experimental measure only; as a single constable performed the task very early, almost before anyone was up. The man who performed this bold deed at Pitone assumed, while he did it, the most ridiculous appearance of authority. He had been one of our early immigrants, brought out, I think, in the Aurora. He was usually styled "Captain" Cole, and had, I am inclined to believe, once been something in an East Indiaman. On hearing of the arrival of

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Captain Hobson as Lieutenant-Governor, he had managed to get a passage in some craft to the Bay of Islands. He had succeeded in getting appointed Chief Constable for Port Nicholson, and had accompanied Lieutenant Shortland, not a little elated with his official dignity. Although I have often since observed the remarkable pomposity which a Government official of every class assumes in a colony, I never saw a more complete instance than Constable Cole.

'As he strode up to the flag-staff near Colonel Wakefield's house, on which a rather ragged New Zealand flag was hung, he threw disdainful and yet cautious glances around him. When he saw that there were only two or three people in their night-caps peeping from their doors and windows to know who had been boating so early on such a cold morning, he plucked up spirits and seemed to reflect that he had to represent the dignity of the British Crown. His funny little head arranged itself quite straight in a most appropriate military stock, his ungainly figure and gait became almost martial, he frowned sternly, as though to awe the rebels; and advanced straight upon the flag-staff with as much resolution as though he had been taking Ciudad Rodrigo by storm. He had some little trouble in undoing the string, and it would not run very freely through the hole at the top of the staff; but at length he accomplished his gallant undertaking, and proceeded with a flourish to extend the sovereignty of England over the flags which adorned the snoring grogshops along the beach.

'It was not till the 4th that Lieutenant Shortland disembarked at Thorndon, to hoist the Union jack and read the proclamations of the sovereignty of the Queen of England over New Zealand. A large assemblage of the colonists, including Colonel Wakefield, and most of the members of the much dreaded Council, joined in the proceedings in a most loyal manner, and expressed to Lieutenant Shortland their pleasure at the event. The soldiers landed, and encamped in tents at one end of Thorndon, and Lieutenant Shortland, with his suite, ensconced themselves in some half-finished houses at that place.' - Adventure in New Zealand, pp. 215-7.

B. According to the Mitchell Library article, Best wrote home the New Zealand Company were 'just the gentlemen I should rejoice in giving a licking', and he wondered 'why they did not choke' as they cheered the Queen. 'You may easily imagine how disappointed I was that the Council did not shew fight. It would have been such a spree to have blown up their magazine and besides that I should have been entitled to £10 and 9d. per diem tentage and forage money for actual service and should also have had the pleasure of licking them, instead of which no sooner did we appear than they all sneaked off.'

Appendix 6

THE FRENCH AT AKAROA

A French whaling captain, Jean Langlois, in 1838 arranged to purchase Banks Peninsula from the Maoris, and thereafter promoted the Nanto-Bordelaise Company, to settle it. Early in 1840 the company dispatched some 63 emigrants under the direction of M. Sainte Croix de Belligny,

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in the Comte de Paris, Captain Langlois. For their protection the corvette L'Aube, Captain Lavaud, was sent out separately by the French government, which regarded the South Island as a no man's land and open for settlement. Lavaud came to the Bay of Islands on 11 July 1840, met Hobson, and learned that the whole of New Zealand had been taken up by Britain - a situation not anticipated in his instructions. He could not recognize British sovereignty or Hobson as lieutenant-governor on his own authority; neither could he do anything which might lead to an international incident.

Hobson said that Langlois had acquired land, not sovereignty, in Banks Peninsula, and that French property would be respected and protected by the British government, but subject, like other land purchases, to inquiry by the land claims commission. Anxious to buttress his proclamations with effective occupation, on 23 July he sent off the brig Britomart, under Captain Owen Stanley, with the two magistrates to hold courts at Akaroa and the whaling stations of the peninsula. The Britomart arrived at Akaroa on 10 August, a day ahead of L'Aube and five days before the Comte de Paris. France did not officially recognise British sovereignty in New Zealand till 1844.

Appendix 7

TAUPO-TARANAKI QUARREL

It would have been more accurate if Best had heard that the natives of Taranaki had counter-attacked the Taupo people who had been intruding on their lands for some months. Both E. J. Wakefield, Adventure in New Zealand, pp. 277-8, and John Te H. Grace, Tuwharetoa (Wellington, 1959), pp. 360-5, give substantially the same account of the affair. After an exchange of insults a war party of 140 heathen Ngati Tuwharetoa had left Taupo about the end of January 1840 to attack the Christians of the Waitotara Valley in Taranaki. The latter fled towards Patea, while the Taupo people for several months occupied their pa and ate their pigs and potatoes. Having gathered allies and neighbours, the Waitotara tribe returned, besieged Ngati Tuwharetoa at Patoka (about 500 yards north of the present Waitotara Railway Station) and captured it on 24 August, killing many including Tauteka, a relative of Te Herekiekie, a very powerful Taupo chief. Peace was arranged by the missionary, R. Matthews, of Wanganui, and the Taupo people were to be allowed to stay at Patoka till ready to go home. A few days later another section of Taranaki people arrived, apparently to take their part in the peace-making ceremonies, but as they came among the now unsuspecting Ngati Tuwharetoa, they struck with concealed weapons; and, despite all Matthews's desperate efforts, only about 40 of the Taupo men were not killed.

Obviously Ngati Tuwharetoa must seek revenge, and several rumours of this reached Best. E. J. Wakefield (op. cit., p. 324), in March 1841, complained that he was taunted by a Wanganui chief for statements made some time before, when news had come of Taupo's preparations for revenge. Wakefield had joined with Matthews in urging the Wanganui chief to work for peace, 'assuring him that the Government would

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certainly interfere to prevent a war even among themselves, and that if this was done perhaps bloodshed would ensue between the races. Thinking that this was really the intention of the Government I had seconded Mr Matthews views to the best of my power; and had... informed Mr Murphy of the approaching events when I returned to Wellington; and advised him, when he asked my opinion, to send the detachment of soldiers up to Wanganui if he really thought it his duty to stop the strife. Lieutenant Best, however, had for various reasons, refused to be detached by the Police Magistrate without the authority of his commanding officer at Auckland; and thus the affair rested.'

In fact the affair needed only to be let alone. Grace (op. cit., p. 36) says that Te Heuheu led his force southward about the end of February 1841. But the Wanganui chiefs did not wish to be involved, the missionaries urged peace, and, though Te Heuheu's party went to Waitotara, destroyed two abandoned pas and some canoes, and recovered the remains of their dead, there was no bloodshed. At the same time, Te Heuheu also shared in a feud of Te Rauparaha and the Ngati Raukawa of Otaki against the Ngati Awa of Waikanae, in which his brother had been killed in 1834; and though the missionaries had made peace between these tribes after their last fight in October 1839, Te Heuheu decided to go on to Waikanae for revenge. There, however, he found Ngati Awa had strong support from the Port Nicholson area, while Ngati Raukawa did not want to reopen the account; so he again departed in peace.

In the summer of 1842, there was further talk of a Taupo war party, which Wakefield heard when he visited Taupo, but the Europeans at Wanganui were not much excited. One of them recalled the 1841 Taupo party whose coming was heralded by 'warnings and portents of evil' but whose visit passed away 'innocuous as a summer cloud'. - P. P. 1841/569, p. 194.

Appendix 8

WHALING STATIONS AT PORT UNDERWOOD

There were several whaling stations in the separate bays of Port Underwood, but their number and positions vary in the different accounts. Mein Smith's 'Sketch of the Harbour of Cloudy Bay, 1842' (National Archives) shows four 'fisheries', at Kakapo, Tom Cane's, Ocean, and Cutters Bays. A letter signed 'H. F.' in the New Zealand Journal, 1840, p. 292, says five stations occupied different beaches. Dieffenbach, late in 1839, reported (in New Zealand and its native population and New Zealand Journal, 1840, p. 122) two stations at Ocean Bay, the largest beach, with about 30 Europeans and 60 to 100 natives, one at Tom Cane's Bay, run by a young Englishman called Flag, with about six Europeans and 30 natives, and two at Kakapo Bay. But in Travels, I, pp. 62-3, he said there was one station at Kakapo - which seems more probable as the bay was small and there were only about six Europeans, including Guard, and 60 natives. Opposite Kakapo Dieffenbach said there was a small station managed by an American; while E. J. Wakefield, op. cit., p. 79, said there was a party run by John, a Portuguese, in a cove just inside the eastern head (i. e.,

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Cutters Bay). McIntosh, op. cit., pp. 28-9, has one station at Kakapo, two at Ocean Bay, two at Tom Cane's, and opposite, on the eastern side of the harbour, a Captain Dougherty, and the Portuguese, John Madeira, near the southern headland. Also, according to Dieffenbach, there was a Maori village of about 40 at Obisch (Opihi Bay) and a larger one, with about 160 inhabitants, at Otawiru (Best's Otawilla or Robin Hoods Bay).

Appendix 9

CLASS DISTINCTIONS AT PORT NICHOLSON

The New Zealand Gazette and Wellington Spectator of 16 January 1841 had a substantial letter to the editor, floridly indignant, exposing the improper behaviour of the group who had enlisted Best's services in the celebrations.

'... circumstances, connected with the long talked of "Fete and Ball" have transpired which lay them [the more influential individuals in the colony] open to a charge of at least winking at a system of exclusion, which, if persisted in, cannot but be productive of consequences the most disastrous.... It cannot be forgotten by your readers, that when first proposed, it was under the title of "Public Fete and Ball". A Committee was appointed, and subscriptions to a large amount raised. From various causes it was allowed to remain in abeyance till now, when to the universal amazement of the colony, an announcement was made, without any meeting of the original Committee being called or any reason assigned, that the Committee was dissolved, and a few individuals (some of them members of the original committee) have erected themselves into a self-elected Committee, totally at variance with the objects originally contemplated, and having for its basis exclusivism the most "Almachian". Putting out of question the impolicy of such a measure, as a means of sowing the seeds of jealousie and distrust amongst the community, it cannot be viewed as other than a want of courtesy to the members of the original Committee, and of gross and unfeeling insult to the public, such as has never been equalled.... I beg to assure them, however, that there are measures in operation to afford to the public the share of the entertainments, which the liberal select would have denied them, and that on a scale of liberality which will put to the blush the mean and heartless proceedings of the "Junta". I am,

Anti-Humbug, S. H. M., and O. T. P., which...
means Son of an Honest Man and One of the People.'

E. J. Wakefield gave a different account of the split, attributing to it the most hearty good humour.

'The prosperous state of the working classes did not fail to show itself by their very obstinate, but inoffensive, determination to have a share in the arrangement of the forthcoming festival. The democracy and the aristocracy of the place could not manage to agree about the persons to be appointed to the Committee of Management. A man or a measure proposed by one of the employing class was sneered at or joked down by

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the carpenters and tailors; a proposition from a mechanic or labourer was objected to or cavilled at by a rangatira; and no union could be formed. In vain middlemen tried to reconcile the merry disputants; in vain the leaders of the two jesting parties yielded here and condescended there; no lasting peace could be concluded: and after many days' good-humoured dispute, it was determined to satisfy all parties by holding two festivals on different days, to be called the "Popular" and the "Select" fete.' Wakefield, op. cit., p. 310.

Appendix 10

JOSEPH JENNER MERRETT

This was Joseph Jenner Merrett, known as a painter and interpreter. In 1847 he was living at Auckland (jury list, New Zealand Government Gazette, 8 February 1847); in 1852 he was at New Plymouth cursing natives and being rather disorderly ('McLean Papers', typescript, Alexander Turnbull Library, reports of Sergeant Major Halse, 28 February, 24 March, 24 and 27 April, 1852); and in 1854 was in Wellington (jury list, New Zealand Government Gazette, 9 February 1854) where he died on 22 December 1854, aged 38 years. His account of his visit in February 1846, to the rebel chiefs Heke and Kawiti was published in Simmonds Colonial Magazine, 1846, and his best known picture was probably that of Heke, his wife Hariata, and Kawiti, of which several versions have appeared - one was published in A. S. Thomson's The Story of New Zealand (1859), another in A. Hamilton's Art Workmanship of the Maori Race (1896), and two lithographed versions are in the Rex Nan Kivell collection, along with two water colours of Maori figures. The Hocken Library, Dunedin, advises that on his painting of the native feast held at Remuera, Auckland, on 11 May 1844 (which was also lithographed in England) Dr Hocken wrote that Merrett was a former resident of New South Wales and an interpreter who latterly lived near Gisborne and died at Wellington in 1854. The Hocken Library also supplies two comments on Merrett by nearcontemporaries. John Webster wrote to Hocken on 21 February 1894: 'I remember Merrett only as a clever artist in the olden days and who was despoiled of land he held by Sir George Grey because he had married his native wife. Had he lived in concubinage he could have held the property.' G. S. Cooper wrote to Hocken on 6 September 1895: 'Merrett was a sort of broken down gentleman and used to do a little bit of water colour drawing but never was looked upon as an artist, as far as I can remember... I have no doubt that all of Merrett's pictures are portraits of well-known at the time Auckland Maoris.'

An old land claim (No. 1293, National Archives) concerning Merrett's claim to 50 acres on the Manukau, which he did not obtain finally, throws a little more light on him, while enlarging the surrounding circle of darkness. On 3 July 1847 Merrett wrote to Governor Grey: 'I should be truly unworthy of your kindness did I not respectfully acknowledge your very handsome patronage. I can assure Your Excellency that I am deeply grateful to you; your liberality has enabled me to acquire considerable proficiency in my profession; which would not have been the

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case had I been obliged to paint hastily. Mrs Grey did me the honour to inform me before leaving for the southward, that my employment would soon cease; and since then I have made arrangements for following my occupation assiduously, for the public. But till the time I received the intelligence from Mrs Grey, I beg leave to assure Your Excellency, that with the exception of one painting for Mr Thomas and one for Mr Symonds, that I have done no native pictures for anyone else, though often solicited; because it was an understood arrangement that they were all to be given to you.

'Your Excellency, I have respectfully to ask your interference in the following matter: some time ago I purchased a piece of land in a creek on the Manukau from the native owners under the then existing proclamation. It is sixteen miles from Auckland, about forty acres in extent, and quite sufficient for a home for myself and family for the rest of our days. It is inaccessible excepting by water, on account of the deep mud creeks, but it is a picturesque though solitary spot, and situated in the midst of luxuriantly growing native trees and shrubs, and just fitted for an artist.

'I would respectfully observe to Your Excellency, that I do not wish to make my case an interference with such measures as you think it prudent to adopt; I am as a subject bound to acquiesce in the existing law; but still I hoped that the fact of having a native family, and this being our only possession within one hundred and fifty miles of Auckland, that Your Excellency might graciously take the matter into consideration and serve us as far as may be done in justice to the government. Would Your Excellency give us a license to locate this land and put us on some plan by which we could gain permanent possession.

'Gratefully acknowledging your own and Mrs Grey's generous patronage....

Josh. J. Merrett.'

Grey regretted 'that it is not in my power to give more than a license to occupy this land', and presumably Merrett gave up the plan for remote artistic retirement, as Commissioner Matson's report, 21 March 1848, reads: 'Party does not appear to have taken up the Certificates [i.e., pre-emption certificates] or sent in Deeds or Maps and Plans of Survey'.

A further fragment on Merrett's affairs, about the time when he met Best, comes from the A. N. Brown microfilm papers in the General Assembly Library. It seems worth quoting here both for itself and as illustrating the ideas on Maori-pakeha relations current in Best's day. On 1 May 1843 John Morgan, at Otawhao, wrote to Brown who, as an ordained priest, was his superior:

'By this opportunity you will receive a letter from Mr Merritt asking your opinion as to his path of duty in reference to the native girl with whom he has been living. He has endeavoured to lay the case before you in order that you may be able to give him your decided opinion as to the course which he as a Christian man ought to pursue. I believe from the various conversations that I have had with him upon the subject that he really wishes to know where in the sight of God is his duty towards the girl, and that whatever sacrefice may be required he is ready to make it. The girl has been at Mr Buddle's for the last 5 or 6 weeks. Mr B. believes her to be a very superior native - affectionate and really attracted to Mr Merritt. It is now about two years since he first took up

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with her. He lived with her some time then left her while he paid a visit to Auckland. During the time he was away her friends forced her much against her will to live with another European. After a few weeks she accompanied this man to Auckland and there she met Mr Merritt. She immediately left the other European, went to Mr Merritt, told him what her friends had obliged her to do and begged Mr M. again to take her. He did so and continued to live with her until he became seriously disposed. He then put her away but as he "felt her to be in the sight of God unalterably his wife" he promised to marry her and as she is now pregnant (by him) he wishes to have the advice and opinion of Christian friends in order that he may hereafter feel that he pursued the path which his duty to God may require.'

Appendix 11

FIRST AUCKLAND RACES

The New Zealand Herald and Auckland Gazette expansively reported the first race meeting at Epsom twice over, on 8 and 12 January 1842, and may be allowed to supplement the account of Best, whose elderly mare. Miss Starch, was clearly the heroine of the second day. Unfortunately the Maoris' race was not mentioned.

(12 January) Valparaiso Stakes, competitors, Lieutenant Best's Miss Starch, Mr Lawson's Cruiskeen and Mavourneen, and Mr Young's Don Raphael. 'Betting, even on Miss Starch and Cruiskeen against the field. Mavourneen went off with a lead at a good pace, followed by Miss Starch, the rest being well up; on nearing the distance Miss Starch passed Mavourneen and ran in a winner by two lengths.

'Second heat - 5 to 1 on Miss Starch', the old mare went off at scent, and the steam leg once put in motion, continued making strong running, and ended in her winning in a canter by several lengths.'

(8 January) Ladies' Purse, competitors, Dr Gammie's Haidee and Lieutenant Smart's Chance. 'The first heat was well contested, Chance keeping the lead till within 100 yards of the winning post, when Haidee made a brush for it, and gained the goal with ease. Considerable bets were made on the second heat; many backing Chance, as it was expected Haidee had done her work, but it proved a case of loosened purse strings to the backers of Chance, as he was nearly distanced, thereby giving Haidee the race in her own hands.'

'Handicap Stakes... There was no mistake about this race. Haidee took the lead, closely tracked by New Zealander, and at a respectful distance might be observed Miss Starch, doing her best. Haidee and New Zealander keeping the same position till they were a few yards from the distance post, when it was, Who should have the race? They keep close at it. New Zealander gaining on Haidee till within fifty yards of the winning post, when from some accident (we believe from the military who were allowed to stand on the outside of the course, waving their caps and shouting, just as New Zealander was opposite them,) New Zealander made a bolt, and in doing so, startled Haidee, when unfortunate to record, they both spilled their riders, leaving the race in the hands of Miss Starch?

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On 12 January this same race was again described thus: 'Haidee led the van at a brisk pace, followed closely by New Zealander, Miss Starch bringing up the rear; in this order they ran at a killing pace, to the distance, the fourth time round, when New Zealander challenged and ran up alongside her. A fine race must have been the result, but when on the tip-toe of expectation, the mare set to work, the horse swerved at the spur, threw the mare out of the race, and to the astonishment of even herself, the old mare, with her noted steam-leg, came in an easy winner, by half-a-dozen lengths.'

The race for the beaten horses reported on 8 January was amazing. Three started, Bobby, New Zealander, and Kitty, and the course was 'half-mile heats and a distance'. 'Many heavy bets were laid on this race'. First heat: 'Bobby and New Zealander kept close at it round the course, the latter keeping just behind the former, until they arrived opposite the distance post, when New Zealander shot a-head, and eventually past Bobby like lightning o'er the sea'. Second heat: 'Betting odds given in favour of the native horse. Off they started in beautiful style, Bobby and New Zealander, as in the last heat, keeping close company with Kitty in their wake a long way, when about 40 yards from the distance post, it was the two former for it, when just within a few yards of the winning post, they both had a spill, Bobby bidding us adieu for the day went home for, as we suppose, some "ki ki"; New Zealander flew off to the outside of the course. Kitty came up and just as she had passed the fallen knights, her rider pulls her head round. New Zealander's rider rights in his saddle again, comes on the course a little below where he went off, passes Kitty and wins the heat to the utter astonishment of the bystanders, and we have no doubt, much to the chagrin of Kitty's rider.

'A dispute arose as to the validity of this heat, which occasioned another when New Zealander cantered round the course after Kitty till within a few yards of the winning post, when the former showed Kitty the way home and won the race.'

Appendix 12

LAND BILLS AND AFFAIRS OF HONOUR

When New Zealand became a dependency of New South Wales, Gipps's Council, to defeat the land-sharks who had bought large areas in anticipation of British sovereignty, passed the New Zealand Land Claims Bill on 4 August 1840. Commissioners were to inquire into the validity of every land purchase Europeans claimed from the Maoris, using a graduated price scale with an assumed price of 6d. an acre between 1815 and 1824, rising gradually till early in 1839 it was taken as 4s. to 8s. an acre, the value of goods being reckoned at three times their selling price in Sydney. The Commissioners were not to recommend grants of obvious sites for towns or ports, nor could a grant contain more than 4 square miles, 2,560 acres.

When New Zealand became a separate colony (the news of it arrived in May 1841) this Act was disallowed, but Hobson and his Council on

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9 June 1841 passed a measure almost identical, except that claimants were given longer to present their claims; and this was confirmed by the Home government on 2 March 1842. Meanwhile in July 1841 Hobson had reappointed Gipps's commissioners, Captain Matthew Richmond and Colonel Edward Lee Godfrey.

The British government had not at first recognised the New Zealand Company, but in November 1840 it was arranged that, as the Company had spent large sums in promoting emigration, surveying land, etc., as well as in buying land from the Maoris, the Crown would award the Company 4 acres of land for every £1 sterling so expended. It was also stated that it was proposed to apply this rule to all other British subjects. By this last the Colonial Office meant other British subjects engaged in similar land buying and organised emigration, e. g., the Manukau Company; Hobson, who was given no instructions on this himself, but was sent copies of the Colonial Office's letters to the Company, took it to mean all other British subjects at large. Accordingly Hobson and his newly arrived attorney-general, William Swainson, in January 1842 presented an extremely doctrinaire Land Claims Ordinance, 1 based on the premise that land claims were so numerous and extensive as to comprise all the available surface of the islands, which would lead to small and dispersed settlements thereby preventing successful colonisation. All land validly sold by the Maoris was declared vested in the Crown, and the Crown would grant to purchasers four times as many acres as they had expended pounds sterling. Lands actually cultivated or substantially built on before 5 January 1840 should be held by their purchasers; all other land claims were to be selected from within three districts, one in the Tamaki-Manukau area, the others at Hokianga and the Bay of Islands. In each district a town would be laid out, surrounded by suburban sections of 5 to 20 acres, in turn adjoined by 80-acre country sections. Alternate suburban sections would be available for selection and each claimant could have one for and out of every complete 100 acres of his recognised claims, the rest to be taken from the country sections, in one block. One-tenth of the suburban allotments was to be reserved for the natives, and the remaining alternate sections, together with the central towns, should be sold by public auction, and half the proceeds spent on bringing British emigrants into the districts. The Bill aimed to produce orderly close settlement near Auckland, and to defeat the shrewd speculators of 1839. It was clearly unworkable, as well as unjust to the genuine early settlers, who would suffer by the abolition of the graduated land price; and it was not surprising that it excited widespread dismay and hostility. Realising this, Hobson withdrew it on 7 February, saying he had no wish to thrust it down the throats of the colonists.

A week later he produced another Bill 2 which repeated that claimants should be awarded 4 acres for every £1 expended, irrespective of when the purchase was made, but allowing the claimant to select it out of the land actually claimed by him, provided it was in one block as near as possible to a rectangle, its breadth not more than half its length; and where bounded by a river or the sea so placed that the narrow side was bounded by that water, the length running back as nearly as possible at right angles thereto.

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This Ordinance was passed by the Legislative Council on 25 February 1842; it was to be disallowed by Stanley the Colonial Secretary on 19 December 1842, 3 in one of his more withering letters: '...Your interpretation of the instructions which have been addressed to you upon this matter, appears to me altogether erroneous. And although prepared to give you full credit for a sincere desire to fulfil the intentions of Her Majesty's Government, in... dealing with a subject of much difficulty and intricacy, I cannot admit that the misapprehension of those intentions has necessarily resulted from the mode in which they were conveyed to you.... no ground for inferring it was ever proposed to apply the same rule to the settlers and occupiers of land in the colony whose circumstances and the mode in which they had acquired land... were not the same as... the New Zealand Company.' The 2,560-acre restriction was necessary to guard against the accumulation of land in the hands of a few persons, and it was not just to place all claimants on an equality. It was disallowed, finished Stanley, because 'in the first place the Ordinance has been passed under an erroneous view of the wishes of Her Majesty's Government; in the second, that to the colony at large its operation may possibly be most injurious; and in the third, that to many individuals it is likely to cause an inequitable adjustment of their claims.'

One is almost relieved that Hobson had died three months before these words were written.

But this is looking too far ahead. Meanwhile, to understand Best's mention of 'blackguard letters' it is necessary to consider the Legislative Council. It consisted of three officials - the colonial secretary, the colonial treasurer, and the attorney-general - and the three justices of the peace standing first on the General Commission of the Peace - at this time J. R. Clendon, W. F. Porter, and G. B. Earp. All three had opposed the first Land Claims Ordinance, but only G. B. Earp maintained his opposition to the second. On 16 February the New Zealand Herald and Auckland Gazette, whose editor was Dr S. M. D. Martin, a vigorous member of the land-trading coterie, published an article 'Our Independent Members', attacking Clendon and Porter for deserting the settlers' cause and imputing dishonourable motives, especially against Clendon (whose place, Okiato, at the Bay of Islands had been bought by Hobson for a large sum); and loudly praising Earp for remaining faithful in opposition. A few days later the printer, John Moore, when threatened by a libel action from Clendon, revealed that Earp himself had written the article. 4 On 26 February the Legislative Council passed a resolution, moved by Porter, seconded by Clendon, '... that the members of this Council have lost all confidence in Mr Earp and can no longer act with him in a way that will benefit the public interest'. On the same day, in the New Zealand Herald... Earp stoutly maintained that 'the absurdity of calling a Member of Council to account for writing in a newspaper is certainly amusing', but the amusement was not appreciated by his colleagues; on 15 March the New Zealand Government Gazette notified 'that the name of George Butler Earp Esq., has been, with the advice of the Legislative Council, removed from its position as third on the list in the Commission of the Peace... and will in future stand next after the name of John Nixon Esq. of Wanganui'.

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Meanwhile again, the boredom of Auckland had been relieved by a fantastic series of challenges 5 in which Best became involved, though he did not mention it in the journal.

The printer, Moore, gave to R. A. Fitzgerald (W. Shortland's father-in-law), who called on behalf of Clendon, the manuscript of the article. Martin, the editor, demanded its return, and when Fitzgerald refused challenged him to a duel, sending C. Abercrombie as his second, on the evening of 19 February. Fitzgerald did not accept on the spot; Abercrombie urged him to reply within an hour. A little more than an hour later Martin received a letter from him repeating that Martin had no claim to the letter, that the printer had given it on pledge it would not leave Fitzgerald's hands, and as legal proceedings were to be founded on it, he begged to decline further correspondence. But sharp on the hour, Fitzgerald received a letter from Earp demanding the manuscript and adding 'if I had not known that you have this night refused Dr Martin... the usual satisfaction which one gentleman has a right to expect from another, you would not have been troubled with this request - it would have been put in a different way.'

Early on the morning of 20 February, Fitzgerald was posted as a coward. The following morning Fitzgerald wrote to Earp that he had heard that Earp had declared publicly that he had challenged Fitzgerald to a duel, and that Fitzgerald had refused - this Fitzgerald denied, declaring himself ready to meet Earp. Earp refused - he could not meet Fitzgerald while he was posted in two public places in the town - to which W. Young, sent as Fitzgerald's second, somehow agreed.

Fitzgerald thereupon wrote that if Earp did not immediately reply he would return the compliment and post Earp; but again Young was induced to agree that no meeting could take place 'owing to the circumstances which have already occurred between Mr. Fitzgerald and Dr. Martin'. Fitzgerald then sent Young to Martin demanding a meeting, but was answered that Fitzgerald having already been posted as a coward by Dr Martin it was impossible for any gentleman to go out with him; further that Mr Mathew (the surveyor-general) had a few hours earlier obtained Martin's and Abercrombie's words of honour that no breach of the peace would be committed towards Fitzgerald; finally, Martin hoped 'all further correspondence on this subject shall cease'.

At this point Fitzgerald, probably feeling that Young was not stiff enough to manage negotiations, apparently called in Best, for the following letter to Abercrombie appeared with the rest: 'Having communicated with Mr Fitzgerald, I have the honour to inform you, that I do not conceive that any passages between that gentleman and Dr. Martin, warrant Mr Earp in refusing to meet Mr Fitzgerald agreeably to the laws of honour. In the event of our opinions not coinciding, I would further state, that I am authorised by Mr Fitzgerald to offer such terms as could not fail to be satisfactory to Mr. Earp and Dr. Martin, and at once convince you that Dr. Martin was premature in posting Mr. Fitzgerald.

'In the full hope of satisfactorily arranging all differences with honor to those concerned, I have the honor to be Sir,

Your obedient servant
Abel Dottin Best, Capt. 80th Regt.'

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Abercrombie received this at 10.15 p. m. on 21 February, and replied immediately declining to reopen the subject. Next morning Best wrote to Fitzgerald enclosing this reply and concluding 'under the existing circumstances you have done everything which could have been expected of a man of honour, and [I] only regret for your sake, that my offers were not accepted.'

Appendix 13

PEACE-MAKING AT ORAKEI

The meeting was at Okahu, the southern promontory of Orakei Bay. Some light is cast on this passage by the judgment of J. D. Fenton in the Orakei case, Important Judgments Delivered in the Compensation Court and Native Land Court (Auckland, 1879), pp. 75-80. Ngati Paoa were the Thames tribes, but before Hongi's wars a branch had lived near Panmure. When driven out with much slaughter in 1825 they took refuge in Waikato, between the Mangapiko River and the Maungakaua hills. The Ngati Haua of Matamata area, and the Waikato tribes, tiring of this infiltration, attacked and totally defeated Ngati Paoa at Taumatawiwi, near Maungatautari, in 1831. Subsequently some Waikato-Manukau people assisted by some of Ngati Whatua attacked Ngati Paoa at Whakatiwai killing three chiefs Rewa, Hauruia, and Kapatahi. 'The object of this attack was to balance an "utu" account.... Ngati Paoa say this account had been previously squared, and the killings which happened at this attack were murders. The other side deny this and say that the balance was against them previously, but the deaths of the three men who fell wound up the account and the whole proceeding was "tika" (correct).'

In 1835 after a mission station had been established at Puriri, Thames, a meeting of Waikato and Thames tribes was held at Tamaki to make peace formally. Ngati Whatua did not go to this meeting and were probably aware that Ngati Paoa still desired revenge for these men, as was shown when six years later the subtribe Ngati Whanaunga gave Haora Tipa, Ngati Paoa chief, a paddle and two tomahawks called after their dead men as a sign that he should go and avenge their deaths. Fortunately Haora Tipa did not think such a course 'tika'; instead he went with many followers to Okahu where he presented Ahipai te Kauwau, chief of Ngati Whatua, with the paddle and tomahawks and finally made peace.

The Barrier Island fight took place in January 1839. On 18 January A. N. Brown, the missionary at Tauranga, wrote: 'A circumstance has just transpired at the Thames which it is feared will produce a war between those Natives and Ngapuhi. It seems that a party from the Northward on their way to the East Cape called at Barrier Island and while resting there were attacked by Thames Natives. A great havoc followed, the Thames party losing 40 men and having 40 wounded. The loss on the side of the Ngapuhi is reported to be still more severe.' - A. N. Brown, 'Journal', typescript, Alexander Turnbull Library. See also Appendix 19.

The fears for a larger war were not realised, and perhaps the presence of Rewa, the Kororareka chief, and his party, which Best reports, at Okahu indicates that Ngapuhi took part in the peace-making.

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Appendix 14

ROBBERIES AT WHANGAREI

The New Zealand Herald and Auckland Gazette, 16 February 1842, reported that while J. S. Forsaith of Kaipara was away from his property Tirarau and Taurau picked up a skull which they were told had been found on the place or turned up by the plough. They declared Forsaith had stolen it from a wahi tapu and promised vengeance. The missionary Buller persuaded them to await Forsaith's return, but meanwhile a fishing party took up the quarrel, ransacked and destroyed the house, and turned squared spars adrift.

The Bay of Islands Observer, 7 April 1842, had a long account of how, between 3 and 6 March, a band of armed Maoris, headed by Tirarau, Pikia, and others had visited all the eight settlers on the Whangarei River, dancing the war dance then ransacking houses and carrying off goods amounting to well over £200, on such pretexts as a wahi tapu on the settler's land or a neighbour's land, or claiming an interest in the land itself. The report concluded that 'strong measures must be taken by the government to subdue the natives; for if this case is not punished, the settlers will be compelled to quit New Zealand, their property being no longer safe.'

The same paper had a letter from John Gorrie, one of those robbed, declaring 'there is no mark at the places which they alleged to be tabooed and no warning given. Besides, the reasons for their taboo are quite frivolous. One place in particular... was tabooed, because some natives had encamped there one night with the bones of some slaves, whose bodies they had eaten at the heads of Whangarei River; and this affair was a long time ago. For this they plundered him of £44 worth.... The truth is, the taboos are only a pretext for exacting payment from the Europeans, and for committing robberies; for it universally happens, that there is a tabooed place near where they are settled. The Governor ought to do away with the taboos altogether, or compel the natives to fence the places.' A deputation had waited on the Governor who 'received them courteously, but gave them no satisfaction. He said the matter would be handed over for investigation to Mr Clarke, Aborigines Protector.'

Hobson, of course, could not risk a serious flare-up, and perhaps the deputation was not tactful in hinting at writing to the Home Government. He minuted their resolutions thus: 'The resolutions of the deputation are not couched in language which could induce the Governor to interest himself very deeply for the parties concerned. He will however represent the case to the Secretary of State and apply such present remedy as may be in his power.'

From the plentiful documents of this case 6 - the protector's investigations, letters from the missionary James Buller, of Kaipara, and from Gilbert Mair, an old settler of Whangarei, plus the representations of the robbed settlers, there emerges a very fair example of the difficulties of Maori-pakeha relations at this period. At the base of it all was the Maoris' inability to accept the fact that having once sold their lands they had no more right to them. The blankets and guns they had received were worn out and they wanted more; and when land had been resold to new settlers they would have payment from these men. This was con-

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fused and overlaid with the question of sacred places for which there was some basis - Mair wrote that a settler had built his house on a sacred place and thrown the bones into the sea. This man had since gone to Auckland but the Maoris demanded payment from the innocent man occupying the place. It also appeared that some settlers had bribed local natives to lie about boundaries to the land commissioners, but omitted to pay the bribe. To the settlers it was simply extortion which the government should put down with exemplary firmness. Certainly there was a good deal of 'trying it on' in the Maoris' actions. Buller, who would usually perceive the Maoris' case in such a wrangle, had written to the settlers warning that the Maoris were in a boisterous and excited state and intended to plunder if they were not given what they wanted, but he thought they would be satisfied with some inconsiderable payment, if the settlers showed no fear. Mair himself was away at the time and his man amiably gave a few pipes, shirts and trousers, a pair of blankets, and two hatchets, which were politely received; but the newcomers were mulcted of far more, though Clarke suspected they exaggerated in giving their loss as £266.

Clarke finally wrote, in December 1842, that he pitied and blamed both parties. The Maoris had been very reprehensible; they should be asked to make compensation and warned against repeating such behaviour. The settlers had handled the matter badly - they should have given a little readily and resisted any larger taking, but at least they had now fully paid for the land and their title was secured according to native custom. In this last opinion he was too hopeful - further 'payments' were taken in 1847 and in 1849 - see Internal Affairs file 49/302.

Appendix 15

THE DUEL

New Zealand Herald and Auckland Gazette, 19 March 1842. Advertisement.

'A meeting of the Officers of the Garrison of Auckland was called by Captain Lockhart, 80th Regiment, during the temporary Absence of Major Bunbury commanding the Detachment, at the request of Captain Best, 80th Regiment, in consequence of the appearance of certain Placards, signed Wm. Cormack and Dr. Martin - posting Capt. Best and his second, E. Shortland, Esq., as Cowards.

'Captain Best states to the Officers assembled:-- Wm. Cormack sent me a verbal challenge by Dr. Martin, at about one o'clock yesterday, 17th instant, which I accepted, naming Mr. Edward Shortland as my Second - who, in conjunction with Dr. Martin, arranged a Meeting to take place at 6 o'clock this Morning (18th March). I went to the appointed ground and remained there for half an hour, till withdrawn by Mr. Edward Shortland, without exchanging shots.

'I have further to state that I have since received a letter, which I returned unopened, as I observed the signature to be that of Wm. Cormack.

'Mr Edw. Shortland states to the assembled Officers:
The ground having been selected by myself and Dr. Martin, and the Pistols loaded - I remarked that it now merely remained to toss for the

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choice of Positions, and to agree who should give the Signal for Firing. Dr Martin observed, that he thought it necessary to determine, by toss also, whether Capt. Best's or Wm. Cormack's pistols should be used. To this I objected, on the ground that Mr Cormack's pistols were short, and not regular duelling pistols as were Capt. Best's, and observed casually, that I considered it child's play to use such pistols; and further, that Capt. Best had an absolute right to use his own pistols; but, to avoid any difficulties, I agreed that Mr Cormack should have the use of one of Capt. Best's pistols, the choice to be determined by toss.

'This Dr Martin objected to, and the following Notes, embodying the Conversation, were exchanged:--

Dr. Martin's Note.

Mr. Edward Shortland's Note.

'Dr Martin then refusing to accede to the offer of using one of Captain Best's pistols, and seeing no hope of prevailing on him to do so, I withdrew Captain Best, having been on the ground for half an hour.

'About an hour subsequent to my leaving the ground I was waited on by Dr. Martin, who stated, that he had discovered that he was in error in respect of his proceedings with regard to the pistols and that he was prepared to re-open the business. I said that, Capt. Best having once been made a fool of, I declined placing him again in the same position. He said "he should communicate with me again": to which I answered, "you may communicate what you please, good Morning, Sir."

'About an hour after this, Mr. Campbell, the Auctioneer, brought me a letter, which he told me was from Dr Martin. This I refused to receive.

'The assembled officers having examined Captain Best's pistols, are unanimously of opinion that they are correct duelling pistols, and that, from the statement of the facts laid before them, they entirely approve of the line of conduct adopted by Captain Best and Mr. Edward Shortland; and are further of opinion that Captain Best and Mr. Edward Shortland should take no notice of any placards or observations arising out of the transaction.

'R. A. Lockhart, Captain 80th Regt.; P. Gammie, Assist. Surgeon, 80th Regt.; W. Richmond, Capt., 96th Regt.; G. A. Bennett, Lieut., R. E.; H. D. Smart, Lieut., 28th Regt.'

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No doubt Best followed this advice, though he may have been annoyed by the comment of the new Auckland Standard (copied in the Bay of Islands Observer, 7 April, and the New Zealand Journal, 20 August 1842):

The unquenchable Dr Martin, whom the directors of the New Zealand Herald..., after the Fitzgerald affair, prevented from expressing himself further in that paper, fired his last bullet from the Bay of Islands Observer, which on 12 May printed a letter that Martin had addressed to Sir Maurice O'Connell, commanding the forces in New South Wales.

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Appendix 16

FROM EDWARD SHORTLAND'S JOURNAL

A. Edward Shortland's journal at Pehiakura, 4 April 1842.

'In the evening Captain B--- and I roamed about the Pa - In front of one of the huts were several men women and children sitting, some smoking some eating boiled corn on the corn stalk. They offered us some and we sat down among them. The natural politeness of a well bred native is perhaps the most striking of the sharp features which present themselves to a European traveller as he has never heard anything to make him expect it - We neither of us possessed much knowledge of the language and may be supposed to have committed many laughable blunders in trying to render ourselves intelligible - yet they shewed the greatest patience and pains to make themselves intelligible to us - Eventually we were invited indoors where we all sat round the fire - smoking is a never failing resource - and a cigar wh. I was smoking drew several longing eyes - when our familiar acquaintance was sufficiently established - It was very delicately put to me by an elderly gentleman that a cigar was preferable to the pipe. I imprudently gave him one, when I was immediately appealed to by others, till all my cigars were consumed. With [word blurred] I here sort [sic] a game plaid by the young women similar to that wh. the children in England call cat's cradle.'

B. Edward Shortland's journal at Whatawhata, 11 to 12 April 1842.

'We found a hut with 2 rooms and a large porch in front like that of a native hut.... a fire is lit in its centre round wh. the natives assemble to smoke and talk. Here B--- [word blurred] lit our fire and proceeded to cook our kai with great energy; our clothes being thoroughly wet or damp I and Mr Martin were glad to make use of our blankets which we put on in true Native style with the assistance of one of our good natured friends who laughed exceedingly at our Metamorphosis and congratulated us on our being now in truth their Brethren, tangata Maori. We ate and smoked and slept securely wrapped in our blankets and stretched on the floor altho' strewed with damp fern. Martin nearly suffocated by nightmare which turned out to be an enormous cat.

'12. Woke to another rainy day which cleared up rather about 11 o'clock - Governor and Mr Martin impatient to proceed. Our Maori friends not inclined for a start - proceeded to dry clothes in porch, 2 or 3 pretty looking girls drying stockings and shirts at the fire in the porch - An old chief who had been very polite and courteous to me probably from the fact of my having given him a fig of tobacco - points to the damsel drying my clothes, putting on a very significant Expression of countenance which could not be mistaken - I asked him who she was to which he replied My girl for you take wahine man - he made a sign to the young lady who immediately came to his side looking very demure. As I saw matters were now coming rather to a crisis altho in open divan I patted the maiden's pouting lips and looking gravely at my aged friend said we were soon going on our journey.

'The Governor being very anxious to get on, I and Capt. Best and Mr Martin went with Meurant across the water to discover what chance there was of our proceeding any farther that night. On approaching the

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Pa we heard the wailing sounds of the tangi. The friends of old Te Wherowhero had taken the opportunity of the 1st break in the weather to greet him in the usual way and were ranged about him in groups, just as at Kaitotehe. It was clear that to move was not contemplated - nor did we at that time venture to propose it. Mr M. returned - while Capt. B. and I amused ourselves among the natives. It was long ere the tangi concluded. I believe it might have continued to any limit had not the sight of the uncovered hangis excited other feelings - So their grief or joy gave place to hunger stimulated by the savory smell of the pork and potatoes. I and Capt. B--- joined them and were well content to take the world as it was - we then retired with old Te Wherowhero to smoke - The subject of going on that day was started but did not meet with any encouragement altho' no direct refusal was offered - One old chief pointed to the black clouds, Look he said they are only waiting to see if we are fools enough to leave our shelter to pounce on us. All of a sudden the Governor made his appearance, he had been unable to wait with any patience the motion of the natives; - He desired Meurant to urge them to proceed - They said that they would go if he wished but that it would be foolish to go, as they could not reach a good place to rest that night. Te Wherowhero said if we were travelling with you, you would call us fools if we wished to travel otherwise than according to your customs. But now you will not be guided by our advice. His brother Kati then got up and soon put the canoes in motion. The natives are always fond of a joke even in their more serious moods - and as they understood Mr Martin was the chief cause of our disturbing their comfort they turned their wit against him - one of the lads pointing to some black clouds asked him if he knew what is that, he said rain - No he replied only tears - and when we got into the canoe and the rain came down thick they laughed and sang to the tune of their boat song "plenty of food for Mr Martin". Having paddled for about 3 or 4 hours in thick heavy rain with a few intermissions we halted towards the close of the day at an old deserted settlement Kaiparara - The place looked most dreary and desolate - 4 or 5 half ruined huts - We were inclined to think that we had been brought there for our folly as a punishment. The tent was pitched.'

C. Edward Shortland's journal at Otawhao, 15 April 1842.

'After the tangi was concluded the Governor rode on with Mr Morgan to his house. B and I with the assistance of Titipa went in search of a spot on which to pitch our tent, and selected a very snug berth at a short distance from the pa in a little hollow. The tent was soon up and the floor made soft with fern - a trench dug round the whole to carry away any rain, our bundles placed within, and preparations making for a fire opposite the door.

'Mr Morgan sent a note to invite us to dine and bring our tents. We could not refuse the former clause of the request, but preferred leaving our tent in the charge of our Maori allies - we were very loth indeed to separate from them, our acquaintance with each other had only strengthened our aroha for each other, besides, we sought every opportunity to increase our knowledge of the language.

'When we returned to our tent we found 2 pigs tied by the leg, a present for Best.'

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Appendix 17

MAORI TRANSLATIONS

A. Our translators declare this song virtually untranslatable, principally because they are unable to consider the Maori, as written, to be a correct record of the original song. Three possible translations, however, have been extracted. Two, taken from the words as recorded, with minor amendments, have directly opposed meanings, which could well be intentional; indeed, the consistency of the duality of meaning is such that it seems to have been intended, containing both a superficial pleasantness and a hidden strong hatred. Thus the friendly one:

The hostile one:

The third translation is based on a rearrangement of the words and phases, supposing considerable mutilation by Best of the correct Maori words, and taking as obscure place names several words that cannot otherwise be accounted for. The first six lines farewell the Governor, the seventh asks about the 'fruits of Waitere', and the last lines refer to the dress uniform of the British soldier, worn for an evening function in the schoolhouse, comparing it to wicker-work - this conclusion is not unusual, being the kind of ditty Maoris customarily made up on the spur

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of the moment when a particular observation had been made. This reformed version is:

B.

2nd (a chant used for the treatment of pain)

3rd

4th

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C. Taraia sent to Te Mutu a present of shirts, breeches, a coat, and cartouche box, and it appears that a chief, Wakaraka, sent with it a letter proffering to Te Mutu his claim to land at Katikati, with an equivocal reference to Te Whanake.

The letter of Wakaraka which accompanied Taraia's present to Te Mutu:

To this Te Mutu sent a verbal answer by Taraia's slave, Mahuhi - an answer, as Willoughby Shortland commented (note No. 448), of highly ambiguous character. The words in brackets are what the translators think Best should have written; his 'h' and 'k' can look identical.

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Appendix 18

THE HORSE MONOPS

This accident resulted in a court case, Best v. Hargreaves, in September 1843, Best suing for £79 4s. 6d., being £73 10s. for the horse, and the rest expenses of treatment. Best's witnesses, privates and grooms of the 80th, said Monops was a spirited horse and that Hargreaves was riding carelessly, with a loose rein. One of the defence witnesses said Monops was a brute of a horse and spoke of an occasion when 'had not Captain Best been a superior rider he would have been thrown'. The veterinary-surgeon had not seen the horse till a week after the accident, when he found the knee shattered and having no hope of saving him, he had shot him.

Perceval Berrey, solicitor, witness for the defence, said he was in Best's stables when the wounded horse was brought in. 'Captain Best remarked it was a bad job. Mr Hargreaves remarked that it was - that he would take the horse and pay for it. Captain Best said, "Oh nonsense, it is an accident, we will wait and see what can be done for it."... Mr Hargreaves said "I would rather you would name the price." Captain Best avoided the subject; I cannot say that Mr Hargreaves has ever paid for the horse.'

Monops's value was assessed by various witnesses, ranging from £60 to £70, to £30 or £40; the jury awarded Best £40. - Auckland Chronicle and New Zealand Colonist, 6 September 1843.

Appendix 19

FIGHT AT BARRIER ISLAND

S. P. Smith, in Maori Wars of the Nineteenth Century, p. 459, wrote that he knew of no Maori account of this incident, but gave one from Reverend J. D. Lang, an 1839 visitor; 100 men from the Bay of Islands went on a predatory excursion to Great Barrier Island, whose people sent to the Thames for help. Twenty chiefs of the Thames were shot, and the Bay of Islands party reduced to about 30, who were glad to be taken off in a coasting vessel bound for the Bay of Islands, where they arrived on 2 February 1838.

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A. N. Brown ('Journal', 18 January 1838) wrote that a party from the northward on their way to East Cape called at Barrier Island and while resting there were attacked by Thames natives. The latter lost 40 men and 40 wounded also, while the Ngapuhi loss was said to be still more severe.

In the Journal of the Polynesian Society, 1945, Vol. 54, pp. 192-3, George Graham published an account from the manuscripts of the late Tukumana Te Taniwha. A travelling party of Ngati Porou and Ngati Kahungungu was returning to East Cape from the Bay of Islands, with some Ngapuhi people in company. Stopping at Aotea they ate the food of the inhabitants, killed their pigs, and interfered with the women. The people of Aotea sent a canoe to Waiau (Coromandel Harbour) to Te Horeta Te Taniwha, 10 who gathered men from the Thames tribes and crossed over to the island to help. When they arrived the invaders were inland and it was a Saturday. Te Horeta said they should wait till Sunday was over, then attack; but some of his party would not wait and gave battle on the sabbath. When at last Monday dawned, Te Horeta ordered those who had obeyed him in waiting to attack; his party divided in two, surprised the invaders in their rear, and overwhelmed them. Then a European vessel appeared, which took off those who survived.

Appendix 20

SOVEREIGNTY QUESTIONED

Swainson's doubts about British sovereignty existing over the whole of New Zealand arose from considering how it was established. It was clear that Britain had recognised the Maori tribes as possessors of both soil and sovereignty, and had sent Hobson to obtain sovereignty for the Queen by cession, disclaiming seizure of the islands, or governing them as part of the British dominions, except by the free and intelligent consent of the natives. Swainson reviewed the process whereby Hobson himself and his agents had negotiated with principal chiefs in various parts of the country, and remarked that on 17 February 1840 Hobson had declared that Her Majesty's dominion in New Zealand then extended from North Cape to 36° south latitude, and that he would extend these limits southward by proclamation as the consent of the chiefs was obtained. 11 Soon after this Hobson was ill for over a month, and on 21 May, while Bunbury was still visiting the South Island and some missionary agents were still at work, on hearing that the settlers at Port Nicholson had formed themselves into a government, he immediately issued two proclamations declaring the Queen's sovereignty over the North Island by virtue of the universal adherence of the native chiefs to the Treaty of Waitangi, and over the South Island by virtue of discovery, plus his own knowledge of the uncivilised state of the natives. The Colonial Office published these proclamations in the London Gazette of 2 October 1840 and wrote to Hobson that so far as it had been possible to form a judgment his proceedings had the entire approbation of Her Majesty's Government.

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Swainson, reading the reports of the various agents, found that, although in most cases the chiefs had signed, 'many influential chiefs in various districts' had refused, 12 and he believed also that many important districts had never yet been visited with the treaty; so that he heard repeatedly of powerful chiefs in the most indignant manner disclaiming any acknowledgment of the Queen's authority. He also remarked on the conclusion of Bunbury's report on the South Island - 'I am certain that the intelligence and enterprising character of the natives as well as the extent of its population have been equally misunderstood' - an opinion endorsed by subsequent experience.

Swainson therefore thought that the British government's approval had been given to actions contrary to its own instructions and intentions. He held that, as against all other nations and as to British subjects, Britain had a title to sovereignty over the whole of New Zealand, based partly on discovery, partly on cession, partly on assertion, and partly on occupation; but as to those tribes who had not acknowledged the Queen's authority he held that Britain had not the right, nor would it be consistent with good faith, to impose upon them her penal code. 13

Over the legal force of the Treaty of Waitangi a good deal has been written, most of which was reviewed by J. Rutherford, The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand (Auckland, 1949), with the conclusion that it is not recognised as a treaty in international law, nor is it part of municipal law; New Zealand was acquired by Acts of State (Hobson's proclamations of 21 May 1840 and their publication in London on 2 October), and falls into the category of colonies acquired by occupation.

In 1843 the Colonial Office, like Best, found Swainson's distinctions inadmissible. Stephens, the permanent under-secretary, wrote on 19 May: 'The local Attorney-Genl wholly omits to notice that by three separate Commissions under the Great Seal of the United Kingdom, and by every other formal and solemn act, the Queen has now publicly asserted Her Sovereignty over the whole of the New Zealand Islands. Admit, if it must be so, that this was ill advised, unjust, a breach of faith, and so on, yet who can gainsay the fact that such are the claims of the Queen and of the Nation for whom H. M. acts. That a subordinate Officer should attempt to set such claims aside on his private judgment of what is prudent, or of what is right, seems to me utterly inadmissible. My opinion is that this is a controversy to be repressed with a strong hand, and that it shd, if necessary, be made known to the Queen's Officers in N. Zealand that among the indispensible conditions on which they serve their Sovereign there, one is, and must be, that of deferring implicitly to the definitions which it has pleased H. M. to make of the limits of Her own Sovereignty.' 14

It was with a strong hand certainly that Stanley wrote his instructions: '[Mr Swainson] appears to hold that the Queen's sovereignty over the New Zealand islands cannot be controverted on behalf of any foreign country, or by Her Majesty's subjects of British birth, but that it is

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impossible to assert that sovereignty against any chief who has not acknowledged it.... I cannot say that this distinction is perfectly intelligible to me. But it is my duty to deny, in the most unequivocal terms, the accuracy of any opinion, whoever may be the author of it, which may deny Her Majesty's sovereign title to any part of the territories comprised within the terms of the commissions issued under the Great Seal of the United Kingdom for the government of New Zealand.

'... Mr Swainson makes no allusion to the terms of those instruments. The omission is very remarkable. If accidental and inadvertent, it is not creditable to Mr Swainson's accuracy. If he omitted all allusion to those commissions as being irrelevant or unimportant to the question in debate, then the omission is hardly reconcileable with his possession of a just view of the history and constitution of the British colonial settlements.

'I regard the Royal Commissions for the government of New Zealand as ascertaining beyond all controversy the limits of Her Majesty's sovereignty in that part of the world....

'I do not think it necessary or convenient to discuss with Mr Swainson the justice or the policy of the course which the Queen has been advised to pursue. For the present purpose, it is sufficient that Her Majesty has pursued it. All the territories comprised within the commissions for the government of New Zealand, and all persons inhabiting those territories, are and must be considered as being to all intents and purposes within the dominions of the British Crown. Mr Swainson must be apprized, that neither he, nor any other person who shall oppose this fundamental principle of your Government, can be permitted to act any longer as a public officer under the Queen's commission.'

With sovereignty secured and Swainson rebuked, Stanley went on to support the views of Taraia and sullen Tupaea - 'there is no apparent reason why the aborigines should not be exempted from any responsibility to English law or to English courts of justice, as far as respects their relations and their dealings with each other. The native law might be maintained, and the native customs tolerated, in all cases in which no person of European birth or origin had any concern or interest. An exception should indeed be made of such customs as are in conflict with the universal laws of morality, such, for example, as the customs of cannibalism and human sacrifice. But, with this exception I know not why the native New Zealanders might not be permitted to live among themselves according to their national laws and usages, as is the case with the aboriginals in other British colonies.

'I am aware, indeed, that theoretical difficulties may be suggested to this solution of the problem which Mr Swainson has raised; but the same thing is true of every other possible solution of it, and I believe that the difficulties of the course I have suggested will be less numerous and less considerable than that of any other which could be taken.'

The Colonial Secretary may have been aware of theoretical difficulties in this answer to the question of how much British governance should be put upon these new subjects, but he was clearly quite ignorant of the practical difficulties of co-existence in New Zealand. Perhaps in London it was not possible to share the knowledge of George Clarke or Edward Shortland; nor could Lord Stanley foresee that the policy of laissez faire which he recommended would lead towards the King movement and contribute to the wars.

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Appendix 21

SELWYN AND BEST

Copies of both these letters are among the notes at the back of Selwyn's journal 1 January 1843 to 23 March 1844, typescript, Alexander Turnbull Library, pp. 96-7 and 123-4.

Letter to Captain Best (undated - between a note on flax and one on Kaitaia, which Selwyn visited from 22 to 27 August 1843).

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