From the evidence given before the Council by the Protector of the Aborigines (Mr. Clarke), it appears that, as I have already stated, there are numerous tribes who have not ceded their sovereign rights to the Queen, and who do not yet acknowledge her sovereign authority. For the reasons already given, I think it would be consistent neither with justice nor with the principles we professed, viz. that we came here to treat for and not to assume sovereignty, to treat those tribes in all respects as British subjects, and to impose upon them our penal code; in this opinion, also, the Protector's opinion coincides. I am also of opinion that so numerous are these tribes, and many of them so distant, that were we disposed to do so we have not the power. At the same time, I am persuaded that the benefits of British protection, and the laws administered by British judges, would far more than compensate the natives for the sacrifice of their independence. These benefits, however, I am equally persuaded, can only be obtained on the voluntary surrender by them of theirown sovereign rights, and on their "free and intelligent" submission to British authority. To subjugate them would require a large armed force; but by the employment of persuasion, the influence of example, and the general spread of civilisation among neighbouring tribes, there is ground to expect that they will gradually submit themselves to the operation of British laws. To constantly point out to them the benefits they will derive from doing so, and to impress upon them, to use the language of the Secretary of State, the impossibility of Her Majesty's extending to them an effectual protection unless the Queen be acknowledged as the Sovereign of their country, or at least of those districts within, or adjacent to which Her Majesty's subjects may acquire land or habitations "is the course, I believe, to be most calculated to effect the object of establishing an absolute sovereignty over the whole country."
From the evidence given before the Council by the Protector of the Aborigines (Mr. Clarke), it appears that, as I have already stated, there are numerous tribes who have not ceded their sovereign rights to the Queen, and who do not yet acknowledge her sovereign authority. For the reasons already given, I think it would be consistent neither with justice nor with the principles we professed, viz. that we came here to treat for and not to assume sovereignty, to treat those tribes in all respects as British subjects, and to impose upon them our penal code; in this opinion, also, the Protector's opinion coincides. I am also of opinion that so numerous are these tribes, and many of them so distant, that were we disposed to do so we have not the power. At the same time, I am persuaded that the benefits of British protection, and the laws administered by British judges, would far more than compensate the natives for the sacrifice of their independence. These benefits, however, I am equally persuaded, can only be obtained on the voluntary surrender by them of theirown sovereign rights, and on their "free and intelligent" submission to British authority. To subjugate them would require a large armed force; but by the employment of persuasion, the influence of example, and the general spread of civilisation among neighbouring tribes, there is ground to expect that they will gradually submit themselves to the operation of British laws. To constantly point out to them the benefits they will derive from doing so, and to impress upon them, to use the language of the Secretary of State, the impossibility of Her Majesty's extending to them an effectual protection unless the Queen be acknowledged as the Sovereign of their country, or at least of those districts within, or adjacent to which Her Majesty's subjects may acquire land or habitations "is the course, I believe, to be most calculated to effect the object of establishing an absolute sovereignty over the whole country."
Though doubtless giving to these expressions of opinion the respectful consideration which was their due, the Acting-Governor decided to assume the responsibility of setting them aside, and following the dictates of his own judgment. To him it seemed that it would be fatally weak to admit in the practical administration of the country the nice line of distinction drawn by the Attorney-General or subscribe to the opinion expressed by Mr. Clarke, "that every honourable and humane means should be used to prevail on tribes to cede the sovereignty where it has not been ceded," as in his judgment this would have been an over-ready admission that they were beyond the pale of the British Crown, and no more effectual means could have been adopted of disseminating the harmful acknowledgment. The troops were accordingly sent to Tauranga, but no arrests were made. Here prudence again prevailed and the officer in charge was instructed only to employ the soldiers "in the general preservation of peace." When these proceedings were reported in due course to Lord Stanley, he warmly endorsed the view adopted by Lieutenant Shortland[191]and as warmly censured Swainson, whowas told in the plainest terms that he could not be permitted to entertain the views to which he had given expression, and hold a public office at the same time.
As a matter of abstract reasoning, Lord Stanley was probably wrong, as a matter of practical administration he was probably right, but the correctness of his attitude depended for its success upon the tactfulness of its application. Fortunately New Zealand has, in the main, been blessed with administrators of wide sympathies, and a paternal parliament has generally, though not always given the native race the most indulgent exposition of the treaty. Mistakes may have been made, misapprehensions may have occurred, even technical breaches of the treaty may have been committed, but since the administration of native affairs was handed over to the Colonial Government in 1863 there have been but few instances of flagrant violation of native rights. Prior to this date the care and control of the Maori still vested in the Imperial authorities, even after representative institutions had been granted to the country; and while that condition lasted there was, unhappily, an all too frequent clashing of the two races. With one or two exceptions these conflicts had a common origin in an over-anxious desire on the part of the Europeans to become possessed of native land, as opposed to the deep-founded pertinacity with which the chiefs clung to their ancestral domains. The first of these exceptions was the insurrection of Hone Heke in 1845, which was not in its inception a dispute regarding land, but an undisguised protest against the exercise of the Queen's sovereignty. Land did ultimately play its complicating part in the disruption, but in its initial stages it was the revolt of a volatile man who felt the treaty had carried him further than he intended it should lead him; it was the protest of an ambitious chief who loved notoriety as much as he loved his independence. Heke fell upon what now appears to have been the weak point in Hobson's negotiations; that while he may have, and doubtless did, convey to the natives a clear enough idea of what was meant by the sovereignty of the Queen, he does not appearto have taken sufficient care to explain with any detail what its possible effects might be. Assuredly he was not endowed with such a mental vision as to foresee all that was to happen, nor to conjure up within his mind all the changes that were inevitable in evolving a State from a condition of barbarism to one of civilisation. One thing, however, must have been obvious both to him and to those who were associated with him, that no government could be organised and carried on in a new country without a revenue adequate for all its varied purposes. Under Lord Normanby's instructions funds were to be temporarily provided from New South Wales, but the permanent revenue was to be raised within New Zealand itself, of which a large part, it was hoped, would be derived from the sale of land. Other sources of income in the way of customs duties and taxation in varied forms must also have been in contemplation, but we have no evidence that Captain Hobson ever took occasion to explain to the people that sovereignty would cost them something; that revenue which had been falling into the hands of the chiefs would be diverted into the coffers of the State, and that with the surrender of their independence they must also surrender the levies which they had been making upon the whalers.
It is conceivable that had this surrender of a means to opulence been clearly contemplated by the chiefs as a part of the colonising scheme those at the Bay of Islands would have been the more easily reconciled to it by the natural expectation that even larger sums would be flowing in to them from the sales of land. If these anticipations ever existed they were doomed to disappointment, for instead of entering upon an active campaign of land-buying the Governor suspended the purchases he should have made, and wasted his money on a site for a town, while the rigid enforcement of the pre-emptive right acquired by the Crown closed the market against the buyers of open country lands. This restriction was felt to be not without its element of injustice; for upon a more critical examination of the terms of the treaty it was found that though the Crown claimed the exclusive right to extinguish thenative title, nothing had been determined as to the price to be paid or as to the time within which the purchase should be made. Thus, chiefs like Heke, who had been in receipt of substantial sums by way of anchorage money from the shipping found their perquisites appropriated by the State, while they derived no compensating benefit from the sale of land.
The first flush of disappointment which surged within the breast of Heke as he contemplated the unexpected effects of the new power was fed by the angry adventurers and thwarted speculators, who, in their chagrin at the interception of their schemes, had no compunction in inciting him to a course which ultimately led to a declaration of hostility against the Queen and to open war against the Crown.
Not so the Waitara war of 1860, which found its origin not so much in a desire to violate the treaty, as in a blundering endeavour to observe its most important provision. The taking up of arms by Wiremu Kingi was not in its spirit rebellion against the Queen's sovereignty, but a reply to the Governor's attempt to divest him of his rights by insisting upon purchasing land from one whom Wiremu contended could not by any application of native law be constituted the owner. There was on the part of the natives the greatest reluctance to resort to arms, their desire being to test the disputed point of ownership before a properly constituted Commission; but when these overtures were rejected and the Governor held on his headstrong way, they felt there was no course compatible with their high-strung sense of dignity, but to refer the momentous issue to the final arbitrament of war. The story of the Waitara campaign is too well known to need recapitulation here, but in the opinion of many of those skilled in the intricacies of Maori land tenure it was a blunder of the first magnitude, for which Governor Gore-Browne, and not the Colonial Parliament was wholly responsible. If, then, the war was unjust, the confiscation of native land which followed upon the suppression of what was called rebellion was branded with the same injustice.
And just as one wrong perpetuates itself in the form of others, this confiscation has ever since burned deep into the hearts of the Taranaki natives, and led in the early eighties to what is known as the Te Whiti movement. Like his predecessor, Wiremu Kingi, Te Whiti was a much-misunderstood man. For this state of misconception he may have himself been largely accountable, for as a concession to the Maori love of the mysterious he so combined religion with his politics, and dealt so freely in the mystic, that it was frequently difficult to separate intangible prophecy from the things that really mattered in his material policy. But shorn of all its grotesqueness the movement which centred round the Parihaka prophet and his uncle Tohu was not a repudiation of the Treaty of Waitangi, nor was it a revolt against the authority of the Queen. At its base lay the grievance, or the fancied grievance, which was before them every day in the shape of the confiscated lands. There upon the wide Waimate Plains they saw European homesteads whose occupancy was in their eyes a crime against Maori rights. Te Whiti felt he had two things to do. He had to assert his right to those lands, and he had to agitate for justice. He accordingly sent his faithfuls to plough up the fields of the farmers and the lawns of the settlers, in the mistaken hope that he would be able to force the issue before a competent tribunal and there determine who had broken the treaty—the Maori or thePakeha.
The Government of that day saw things differently. They had no desire to exhume the remains of past mistakes with a possibility of being called upon to repair them at a cost of much treasure and more dignity. They preferred to stand upon the settled policy of their predecessors, and instead of sending a Commission to discover what was at the back of the prophet's mind, they sent troops and took him prisoner. Te Whiti may have been a dreamer, he may have been a babbler of vain things, but he was never a rebel, nor the maker of rebels; but for saying "I love my land" he was legislated into rebellion, and made to appear as a criminal.
In the same way the King movement of 1857 only became rebellion when the Crown made it so. Two primary causes operated to call into existence this political power, the creation of Wiremu Tamihana's[192]genius, which for over fifty years was a potent influence in the Maori life of the Waikato. For upwards of fifteen years the colony had been following with more or less exactitude the terms of the treaty, and during this time the State had exercised its power of pre-emption in a manner which the more enlightened Maoris now began to regard with disfavour. When Lord Normanby despatched Captain Hobson to found the colony he anticipated no opposition to the practice of buying land from the natives at a low price and selling it again to the colonists at a large advance on what the Crown had paid. For a time these anticipations were confirmed by results, but now the fathers of the race, jealous of the rapid increase of the Europeans, and alarmed at the equally rapid diminution of their lands, began to adopt a different view. Rather than part for a few shillings with property which they knew would be sold for as many pounds, they determined to exercise their right under the treaty, and refuse any longer to sanction the large transactions in which they had been engaged with the Crown.
Their eyes, too, had been opened by the Waitara war. Here a single individual had embroiled the whole of the Ngati-Awa tribe in a sanguinary conflict with the Government, by insisting upon selling land to which his title was contested. These unauthorised sales, said the chiefs, must cease, and no individual should, by his avarice, have the power to involve the people in war. To crystallise this determination into a practical act of statesmanship Wiremu Tamihana conceived the idea of a Maori King, who was to be, not antagonistic to, nor a substitute for the Queen, but the arbiter and judge in all internal disputes, as well as the mouthpiece as to land which the tribes as a whole were or were not prepared to sell. "Ido not desire to cast the Queen from this Island, but from my piece of land. I am the person to overlook my piece" was how Wiremu Tamihana once publicly stated his attitude towards the Crown. The King movement was thus a Land League and not a rebellion, and as the Maoris had the right to withhold their land from sale if they so pleased, their adherence to this restrictive policy was no more illegal than the establishment of a Trades Union or a Political Association. The movement did not become militant until after the invasion of the Waitara by the British troops, when many of the Waikato natives rose in sympathy with Wiremu Kingi, and the battle followed them back to their gates. Then the authorities began to realise what a compelling truth there was in the maxim of Bishop Selwyn: "Nothing is easier than legally and peacefully to extinguish a native title; nothing is harder than to extinguish a native war."
Worsted, though not disgraced, in the field, the dissatisfied Maoris have since sought to secure the full measure of political justice to which they believe themselves entitled by more constitutional methods. Amongst their dreams has been a native Parliament sitting in the Treaty House, at Waitangi, to approve measures for the betterment of the race, which measures would be afterwards adopted by the Government and given the effect of law. This, however, has been nothing more than a dream. Little better was theKotahitanga, or union, in 1892, of all the tribes in the north, exclusive of the Kingites who still remained loyal to their monarchal authority. The policy upon which this new union was founded was that of inducing the Government to cease purchasing native lands, and to set aside as a reserve for the benefit of the present and all future Maori generations the considerable areas of native land still unsold. Nor was this all. Legislation had been passed, not specially directed against, but not excepting the native race, placing restrictive conditions upon the oyster fisheries of the country, and this the leaders of the movement held to be a breach of the second clause of the treaty, which guaranteed to them not onlythe free use and control of their lands and their forests, but of their fisheries also. The deprivation of their right to freely gather food from the sea and the sea-shore was, together with other grievances, sufficient to galvanise them into political activity, and theKotahitangawas formed with the meteoric Hone Heke[193]at its head. The Native Rights Bill was introduced by him and rejected by Parliament, but the movement was not without its fruits, for in 1900 part of their purpose was achieved in the concessions made by the Government in the Native Land Administration Act and the Maori Councils Act.
With the accomplishment of these aims, and the early death of Heke, theKotahitangahas failed to preserve its former vitality; but brief as was its career, it must be recorded of it that in its inception and activities it was, as most Maori movements have been, not an organisation designed to aid in the evasion of the treaty, but rather to insist upon the due observance of its contracts.
Few Legislatures in the world have had a more difficult task than has fallen to the lot of that of New Zealand in legislating for the Maori so as to preserve his nationality, his rights, his liberties, and yet not bar the progress of the European state. That it has been embarrassed times without number by the treaty is undoubted, and therefore it is the more to its credit that the diplomatic bargain which has now held good for the better part of a century should have been so little violated. The treaty has been the broad foundation upon which the intricate structure of native legislation has been reared through all these years; and if there has ever been as there must have been under changing conditions trespass upon the strict letter of the compact, it is safe to assert that this variation has only occurred when Parliament has been honestly satisfied that the wider interests of the State as a whole demanded the departure. At no time has the Legislature been callously unmindful of the true spirit of the treaty, or careless of the great trust imposed upon it as the guardianof native rights.[194]This commendable endeavour to observe that "justice which is the paramount interest of all men and all Commonwealths" has finally led to a universal acceptance of the treaty by the native race as the basis of their civil and political privileges. So far is this the fact, that to-day the Maori is more insistent upon a due observance of its covenants than is the European. The present generation of natives accept it unquestioningly; and long before the "Old Guard" of objectors had passed away they, too, were beginning to realise that the sacrifice of their independence was more than compensated for by the protection of the British flag. They felt the irresistible sweep of the white tide that had surged upon their shores, and much as they might regret the passing of their ancientmana, they were compelled to acknowledge the force of truth in the figurative statement of their diminishing power once propounded to them by Mr. Busby: "How can the little pebble dam the stream? how can the single tree stand against the storm?"
FOOTNOTES[156]"One cannot but laud the moderation of the English Puritans who first established themselves in New England. Although provided with a charter from their Sovereign, they purchased of the savages the land they required to occupy. This praiseworthy example was followed by William Penn, and the colony of Quakers which he conducted into Pennsylvania."—Vattel.[157]The real discoverer of New Zealand was probably a Polynesian.[158]Stowell in hisMaori-English Tutorthus definesmana:I speak of potency, the rightTo order things as I may deem;I, nothing wanting, have the mightWhich clothes authority supreme.Surely as much power as is possessed by any crowned head, and more than is possessed by some.[159]For some years after the treaty was signed the red blanket was considered amongst the Maoris the hall-mark of distinction, and no chief who had not received the "treaty blanket" was admitted to the select circle of their counsels.[160]The Kohimarama Conference was summoned at Auckland in July 1860, by Governor Gore Browne, "to afford an opportunity of discussing with him various matters connected with the welfare and advancement of the two races dwelling in New Zealand." It was attended on the opening day by 112 chiefs from all parts of the country, and next to the meeting at Waitangi in 1840 is the most important native conference ever held.[161]"When casuists afterwards strove to qualify the terms accorded to the Maoris, the wordstino rangatiratangafoiled them.Tinois an intense expression of fulness, comprehension, and precision, andrangatiratangaincluded all the rights of chieftainship."—Rusden.[162]In 1841 a Mrs. Robertson, her two children, and a half-caste were murdered at the Bay of Islands by a native named Maketu. The case was heard at the first Criminal sitting of the Supreme Court in New Zealand, presided over by Chief-Justice Martin, and was watched with the keenest interest by the natives.[163]Writing on this point to Lord Stanley in a letter dated Torquay, January 18, 1845, Lieutenant Shortland remarks: "I was present at the several meetings of the natives at Waitangi, Hokianga, and Kaitaia for the purpose of considering the treaty, and the impression on my mind at the time was, that the subject was fully understood by them, and they were quite aware of the nature of the transaction in which they were engaged. I was so impressed with this idea, and so struck with the shrewdness and intelligence of many of their remarks at the first meeting at Waitangi, that at the subsequent ones I noted down the speeches of the chiefs, which all serve to show that the natives not only understood the treaty, but that they were peculiarly sensitive with regard to every question affecting their lands."[164]The question of the title to the lands claimed by the Nantes-Bordelaise Company was not dealt with by the New Zealand Land Claims Commissioners, and became the subject of protracted diplomatic negotiations with the French Government. Finally, in 1845, Lord Stanley directed the issue of a grant for 30,000 acres. This area was afterwards sold to the New Zealand Company, and on the surrender of its charter the unsold portion became the property of the Crown.[165]These two vessels were crossing the line when Captain Hobson took possession of the North Island by virtue of the Treaty of Waitangi.[166]Videhis letter to Captain Lavaud, September 20, 1841.[167]In his judgment in the case, Reginav.Symonds, delivered in 1847, the late Mr. Justice Chapman laid it down that the pre-emptive right to buy was not limited to the "first refusal," but consisted in the right to buy before all others:i.e.that the Crown enjoyed the exclusive right of extinguishing the native title.[168]The Bill was passed on August 4. It enacted that all titles to land in New Zealand were to be absolutely null and void except such as were, or might be, allowed by the Queen. The Governor was to appoint commissioners to examine and report on all claims to grants of land which might be referred to them by him. They were to be guided by the real justice and good conscience of the case. Certain lands, those reserved for the site of a town or village, for purposes of defence, or any other public purpose, were not to be recommended by the Commissioners for grants, but compensation in the shape of other lands might be arranged. The claimant had to prove that he had made a purchase, and there was to be some relation between the quantity of land granted and the sum expended on its purchase, but as a general rule no claimant was to receive more than 2560 acres.[169]Mr. Busby laid off a portion of his property on the bank of the Waitangi River as a township, which he dignified by the name of Victoria. Here he marked off streets, squares, and reserves for public buildings, the lots being sold to Sydney speculators and settlers at Kororareka at the rate of from £100 to £400 per acre. Over seventy years have elapsed since then, but the great city which was to be is still unsubstantial, rude boulders are its cathedrals, and the cabbage palms wave over its empty market-place.[170]Despatch to Lord John Russell, August 16, 1840.[171]Amongst these was Tu Hawaiki, the Otago chief, who afterwards signed the treaty at the request of Major Bunbury.[172]"In consequence of the animadversions made by me in Council on this proceeding of Mr. Wentworth, and particularly of my having said that he had, in my opinion, exposed himself to a prosecution for a conspiracy, Mr. Wentworth has thought proper to resign his commission as a Magistrate, and (to use his own expression) to separate himself entirely from any official connection with my Government."—Videthe above Despatch, August 16, 1840.[173]"The more completely Lord Normanby admits the right of the chiefs to the sovereignty and soil of New Zealand the more fully must he rely on the third principle upon which I have said this Bill is founded, namely, that Englishmen cannot found colonies without the consent of the Crown, and can obtain no titles to lands in colonies but from the Crown."—Extract from Sir G. Gipps' speech.[174]For a further exposition of this point the reader is referred to what has been called the "classic" judgment of the late Mr. Justice Chapman in Reginav.Symonds, 1847.[175]In November 1840 Lord John Russell entered into an agreement with the Company, by which they were to become entitled to select out of the extensive domain claimed by them one acre for every 5s. they could prove they had expended upon colonisation in New Zealand. A Mr. Pennington, a London accountant, was appointed to discover what the Company's expenditure had been. He reported that they had expended, as far as could be ascertained, the sum of £200,000, which on the basis of the arrangement entered into would have entitled them to select, approximately, 1,000,000 acres. This the Company asserted to Lord Stanley was a final determination of their rights, and that they wereipso factoentitled to the land. Lord Stanley, however, held that the Company still had to show that they had lawfully and equitably extinguished the native title over this area, and that for this purpose their land must come under investigation by the Commission. The correspondence is embodied in the Parliamentary papers of the period.[176]Both sides of the Committee appear to have disregarded Major Bunbury's proceedings, not because they had no constitutional value, but probably because they were not sufficiently posted in the facts.[177]In October 1845, Governor Fitzroy wrote to Lord Stanley: "I cannot believe that those most dangerous resolutions of the House of Commons (Committee) in 1844 respecting unoccupied land, can be adopted by Her Majesty's Government, but if such should be the fatal case, the native population will unite against the settlers and the destruction of the colony as a field for emigration must result."[178]Videhis letter to Archdeacon Henry Williams, November 11, 1845.[179]Governor Hobson died at 12.15A.M.on September 10, 1842, at Auckland. Amongst a large section of the Northern Maoris the belief was current that he had beenmakutaed(bewitched) by an oldtohunga(priest) at a banquet, thetohungabeing instigated by the section of natives who were opposed to the treaty.[180]In the previous debate Sir Robert had said: "If ever there was a case where the stronger party was obliged by its position to respect the demands of the weaker it was the engagements contracted under such circumstances with these native chiefs."[181]Videhis Ordinance of March 26, 1844. For an able justification of this measure the reader is referred to Mr. George Clarke'sFinal Report, 1846, the manuscript of which is in the Hocken Collection at Dunedin. The pre-emptive right was finally abrogated in the Native Land Act of 1862.[182]Videhis Despatch to Lord Stanley, December 10, 1845.[183]In this he was further assisted by the fact that Mr. Hawes, who had been prominent with him in the interests of the New Zealand Company, became his Under-Secretary, and Mr. Buller became Lord-Advocate.[184]For a critical analysis of Earl Grey's policy at this period, the reader is referred to L. A. Chamerovzow's work,The New Zealand Question, 1848.[185]One writer declared that, "by Earl Grey's Constitution the humbug Treaty of Waitangi is very properly laid on the shelf." Another referred to it as "sweeping away all the Treaty of Waitangi nonsense."[186]Te Wherowhero, who had refused to sign the Treaty of Waitangi, was greatly influenced by Governor Grey, and this petition is interesting as showing that the chief was beginning to recognise the sovereignty of the Queen as the accepted order of things.[187]"As was anticipated, the chiefs would not enter into the treaty without the advice of their religious instructors. The Wesleyan chiefs said, in effect, to their Missionaries: 'We do not know the Queen of England, but we know you, and can trust you. If you say that the British Government speaks true about the land, we will believe you, for we know you will not deceive us.' The Society's Missionaries, understanding that the primary object of the British Government was to throw the shield of protection over the New Zealand people, and believing that the measure proposed was the best for preserving the natives from the evils by which they were threatened, could not hesitate to assure their people, that, when once the faith of the British Government was pledged, it would be maintained inviolate."—VideWesleyan Mission Committee's Letter to Earl Grey, 1848.[188]Correspondence between the Wesleyan Missionary Committee and the Right Hon. Earl Grey, 1848.[189]In a letter received at the Mission House after the Committee's Memorial had been prepared, the Rev. Thomas Buddle, writing from Auckland, on July 3, 1847, remarked in reference to lands having no native claimants: "No such lands have yet been discovered in this Island. I question much whether there is an acre that has no owner." The testimony of other Missionaries in the same direction, was, the Committee asserted, "clear and express."[190]It is instructive to observe that the treaty is no longer described as "what has been called the Treaty of Waitangi," as it was in Earl Grey's Despatch, but is now spoken of with respect by Mr. Merivale as "The Treaty of Waitangi."[191]"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 to say 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."—VideLord Stanley's Despatch to Acting-Governor Shortland.[192]William Thompson, son of Te Waharoa, known as the King-maker.[193]A grand-nephew of the chief who led the war of 1845.[194]The confiscation of Taranaki lands following upon the Waitara war might be held by some to be an exception to this rule, but that would depend upon the view taken of the justification for the war. The breaches of the treaty, real or alleged, which have occurred in connection with the Waitara war and since, have been vigorously stated by Mr. G. W. Rusden in hisAureretanga, published in 1888.
[156]"One cannot but laud the moderation of the English Puritans who first established themselves in New England. Although provided with a charter from their Sovereign, they purchased of the savages the land they required to occupy. This praiseworthy example was followed by William Penn, and the colony of Quakers which he conducted into Pennsylvania."—Vattel.
[157]The real discoverer of New Zealand was probably a Polynesian.
[158]Stowell in hisMaori-English Tutorthus definesmana:
Surely as much power as is possessed by any crowned head, and more than is possessed by some.
[159]For some years after the treaty was signed the red blanket was considered amongst the Maoris the hall-mark of distinction, and no chief who had not received the "treaty blanket" was admitted to the select circle of their counsels.
[160]The Kohimarama Conference was summoned at Auckland in July 1860, by Governor Gore Browne, "to afford an opportunity of discussing with him various matters connected with the welfare and advancement of the two races dwelling in New Zealand." It was attended on the opening day by 112 chiefs from all parts of the country, and next to the meeting at Waitangi in 1840 is the most important native conference ever held.
[161]"When casuists afterwards strove to qualify the terms accorded to the Maoris, the wordstino rangatiratangafoiled them.Tinois an intense expression of fulness, comprehension, and precision, andrangatiratangaincluded all the rights of chieftainship."—Rusden.
[162]In 1841 a Mrs. Robertson, her two children, and a half-caste were murdered at the Bay of Islands by a native named Maketu. The case was heard at the first Criminal sitting of the Supreme Court in New Zealand, presided over by Chief-Justice Martin, and was watched with the keenest interest by the natives.
[163]Writing on this point to Lord Stanley in a letter dated Torquay, January 18, 1845, Lieutenant Shortland remarks: "I was present at the several meetings of the natives at Waitangi, Hokianga, and Kaitaia for the purpose of considering the treaty, and the impression on my mind at the time was, that the subject was fully understood by them, and they were quite aware of the nature of the transaction in which they were engaged. I was so impressed with this idea, and so struck with the shrewdness and intelligence of many of their remarks at the first meeting at Waitangi, that at the subsequent ones I noted down the speeches of the chiefs, which all serve to show that the natives not only understood the treaty, but that they were peculiarly sensitive with regard to every question affecting their lands."
[164]The question of the title to the lands claimed by the Nantes-Bordelaise Company was not dealt with by the New Zealand Land Claims Commissioners, and became the subject of protracted diplomatic negotiations with the French Government. Finally, in 1845, Lord Stanley directed the issue of a grant for 30,000 acres. This area was afterwards sold to the New Zealand Company, and on the surrender of its charter the unsold portion became the property of the Crown.
[165]These two vessels were crossing the line when Captain Hobson took possession of the North Island by virtue of the Treaty of Waitangi.
[166]Videhis letter to Captain Lavaud, September 20, 1841.
[167]In his judgment in the case, Reginav.Symonds, delivered in 1847, the late Mr. Justice Chapman laid it down that the pre-emptive right to buy was not limited to the "first refusal," but consisted in the right to buy before all others:i.e.that the Crown enjoyed the exclusive right of extinguishing the native title.
[168]The Bill was passed on August 4. It enacted that all titles to land in New Zealand were to be absolutely null and void except such as were, or might be, allowed by the Queen. The Governor was to appoint commissioners to examine and report on all claims to grants of land which might be referred to them by him. They were to be guided by the real justice and good conscience of the case. Certain lands, those reserved for the site of a town or village, for purposes of defence, or any other public purpose, were not to be recommended by the Commissioners for grants, but compensation in the shape of other lands might be arranged. The claimant had to prove that he had made a purchase, and there was to be some relation between the quantity of land granted and the sum expended on its purchase, but as a general rule no claimant was to receive more than 2560 acres.
[169]Mr. Busby laid off a portion of his property on the bank of the Waitangi River as a township, which he dignified by the name of Victoria. Here he marked off streets, squares, and reserves for public buildings, the lots being sold to Sydney speculators and settlers at Kororareka at the rate of from £100 to £400 per acre. Over seventy years have elapsed since then, but the great city which was to be is still unsubstantial, rude boulders are its cathedrals, and the cabbage palms wave over its empty market-place.
[170]Despatch to Lord John Russell, August 16, 1840.
[171]Amongst these was Tu Hawaiki, the Otago chief, who afterwards signed the treaty at the request of Major Bunbury.
[172]"In consequence of the animadversions made by me in Council on this proceeding of Mr. Wentworth, and particularly of my having said that he had, in my opinion, exposed himself to a prosecution for a conspiracy, Mr. Wentworth has thought proper to resign his commission as a Magistrate, and (to use his own expression) to separate himself entirely from any official connection with my Government."—Videthe above Despatch, August 16, 1840.
[173]"The more completely Lord Normanby admits the right of the chiefs to the sovereignty and soil of New Zealand the more fully must he rely on the third principle upon which I have said this Bill is founded, namely, that Englishmen cannot found colonies without the consent of the Crown, and can obtain no titles to lands in colonies but from the Crown."—Extract from Sir G. Gipps' speech.
[174]For a further exposition of this point the reader is referred to what has been called the "classic" judgment of the late Mr. Justice Chapman in Reginav.Symonds, 1847.
[175]In November 1840 Lord John Russell entered into an agreement with the Company, by which they were to become entitled to select out of the extensive domain claimed by them one acre for every 5s. they could prove they had expended upon colonisation in New Zealand. A Mr. Pennington, a London accountant, was appointed to discover what the Company's expenditure had been. He reported that they had expended, as far as could be ascertained, the sum of £200,000, which on the basis of the arrangement entered into would have entitled them to select, approximately, 1,000,000 acres. This the Company asserted to Lord Stanley was a final determination of their rights, and that they wereipso factoentitled to the land. Lord Stanley, however, held that the Company still had to show that they had lawfully and equitably extinguished the native title over this area, and that for this purpose their land must come under investigation by the Commission. The correspondence is embodied in the Parliamentary papers of the period.
[176]Both sides of the Committee appear to have disregarded Major Bunbury's proceedings, not because they had no constitutional value, but probably because they were not sufficiently posted in the facts.
[177]In October 1845, Governor Fitzroy wrote to Lord Stanley: "I cannot believe that those most dangerous resolutions of the House of Commons (Committee) in 1844 respecting unoccupied land, can be adopted by Her Majesty's Government, but if such should be the fatal case, the native population will unite against the settlers and the destruction of the colony as a field for emigration must result."
[178]Videhis letter to Archdeacon Henry Williams, November 11, 1845.
[179]Governor Hobson died at 12.15A.M.on September 10, 1842, at Auckland. Amongst a large section of the Northern Maoris the belief was current that he had beenmakutaed(bewitched) by an oldtohunga(priest) at a banquet, thetohungabeing instigated by the section of natives who were opposed to the treaty.
[180]In the previous debate Sir Robert had said: "If ever there was a case where the stronger party was obliged by its position to respect the demands of the weaker it was the engagements contracted under such circumstances with these native chiefs."
[181]Videhis Ordinance of March 26, 1844. For an able justification of this measure the reader is referred to Mr. George Clarke'sFinal Report, 1846, the manuscript of which is in the Hocken Collection at Dunedin. The pre-emptive right was finally abrogated in the Native Land Act of 1862.
[182]Videhis Despatch to Lord Stanley, December 10, 1845.
[183]In this he was further assisted by the fact that Mr. Hawes, who had been prominent with him in the interests of the New Zealand Company, became his Under-Secretary, and Mr. Buller became Lord-Advocate.
[184]For a critical analysis of Earl Grey's policy at this period, the reader is referred to L. A. Chamerovzow's work,The New Zealand Question, 1848.
[185]One writer declared that, "by Earl Grey's Constitution the humbug Treaty of Waitangi is very properly laid on the shelf." Another referred to it as "sweeping away all the Treaty of Waitangi nonsense."
[186]Te Wherowhero, who had refused to sign the Treaty of Waitangi, was greatly influenced by Governor Grey, and this petition is interesting as showing that the chief was beginning to recognise the sovereignty of the Queen as the accepted order of things.
[187]"As was anticipated, the chiefs would not enter into the treaty without the advice of their religious instructors. The Wesleyan chiefs said, in effect, to their Missionaries: 'We do not know the Queen of England, but we know you, and can trust you. If you say that the British Government speaks true about the land, we will believe you, for we know you will not deceive us.' The Society's Missionaries, understanding that the primary object of the British Government was to throw the shield of protection over the New Zealand people, and believing that the measure proposed was the best for preserving the natives from the evils by which they were threatened, could not hesitate to assure their people, that, when once the faith of the British Government was pledged, it would be maintained inviolate."—VideWesleyan Mission Committee's Letter to Earl Grey, 1848.
[188]Correspondence between the Wesleyan Missionary Committee and the Right Hon. Earl Grey, 1848.
[189]In a letter received at the Mission House after the Committee's Memorial had been prepared, the Rev. Thomas Buddle, writing from Auckland, on July 3, 1847, remarked in reference to lands having no native claimants: "No such lands have yet been discovered in this Island. I question much whether there is an acre that has no owner." The testimony of other Missionaries in the same direction, was, the Committee asserted, "clear and express."
[190]It is instructive to observe that the treaty is no longer described as "what has been called the Treaty of Waitangi," as it was in Earl Grey's Despatch, but is now spoken of with respect by Mr. Merivale as "The Treaty of Waitangi."
[191]"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 to say 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."—VideLord Stanley's Despatch to Acting-Governor Shortland.
[192]William Thompson, son of Te Waharoa, known as the King-maker.
[193]A grand-nephew of the chief who led the war of 1845.
[194]The confiscation of Taranaki lands following upon the Waitara war might be held by some to be an exception to this rule, but that would depend upon the view taken of the justification for the war. The breaches of the treaty, real or alleged, which have occurred in connection with the Waitara war and since, have been vigorously stated by Mr. G. W. Rusden in hisAureretanga, published in 1888.