to his most eloquent effort, and in an address of considerable length
and subtlety he argued that before the proclamations issued by Sir
George Gipps and Captain Hobson, nullifying all titles to land not
derived from the Queen, could be binding upon British subjects, they
must be founded upon some law previously existing; and if they were so
founded then it was the duty of those who had issued them to satisfy
the Council what that law was. The principle contained in the preamble
of the Bill--that no chiefs, or other individuals of tribes of
uncivilised savages had any right to dispose of the lands occupied by
them--was, he contended, at variance with British law and with the Law
of Nations. Numerous authorities were marshalled in support of this
view, and also to prove that it mattered nothing whether the New
Zealanders were an independent nation or only a few errant tribes
scattered over the country; they still possessed the demesne of the
soil to do with as they pleased. This being so, those who purchased
land from them were only acting in accordance with the natural rights
of the natives and in compliance with the Law of Nations. According to
Vattel--one of the world's most eminent authorities upon the relation
of one nation to another--individuals landing in an uninhabited
country might not only establish colonies, but also erect a government
and an empire, and he argued that if such a proceeding was permissible
in an uninhabited country, it resulted _a fortiori_, that it
might be done in a country that was peopled, provided the natives of
that country gave their consent thereto. The story of the first New
England Settlement under Davenport and others, in 1620, was urged as
conclusive proof that British subjects, unsupported by a Royal
Charter, might form colonies and erect governments, as had been done
in Connecticut, where the government so established had lasted for
over two centuries. He denied that there was any merit in the official
assumption that the Crown had derived sovereignty over the Islands of
New Zealand by right of discovery. Discovery gave no right of
occupation in an inhabited country, nor would the Law of Nations
acknowledge the property and sovereignty of any nation unless its
possession were real, unless its settlements were actual, or it had in
some way made practical use of the soil. The Bill rested upon the
principle that the native was incompetent to sell his own land, and
the British subject was incompetent to buy--a principle which he
thought he had clearly disproved. Confiscation was the key-note of the
measure. It was a Bill designed to take away property, annul grants,
and to forfeit all landed possessions acquired by British subjects in
New Zealand. He condemned the Bill absolutely, because he claimed to
have established on incontestable grounds, and by the aid of
indisputable authorities, the right of British subjects to buy land
from the New Zealanders, a right which could not be taken away until
the Council passed an Act to restrain it. Under these circumstances it
was highly illegal to proceed to divest parties of their possessions
without adequate compensation, such as was given in England when land
was required for public purposes. The compensation to be given in such
cases must always be awarded by a jury; therefore the proposed Bill
was clearly repugnant to the laws of England. Only a few days
previously the Council had passed an Ordinance, making all the laws of
England and of the colony of New South Wales applicable to New
Zealand. Amongst these was the right of trial by jury of which the
proposed Bill was completely subversive; it took away the right of
trial by jury; and therefore, declared Mr. Wentworth, the Council
could not pass it, or if they did, the Judges could not certify to it.
These arguments were reiterated and amplified by the two barristers,
Messrs. A'Beckett and Darvell, and on July 9 their official refutation
was placed before the Council by Sir George Gipps, who on that day
delivered in reply a speech remarkable for its broad grasp of
constitutional history, as well as for its fearless declaration of the
attitude adopted by the Crown. It was during the development of this
smashing rebuttal that the objectors were enlightened as to the three
great principles of law upon which the second clause of the treaty was
founded; "principles, which, until I heard them here controverted,"
said Sir George, "I thought were fully admitted, and indeed received
as political maxims." Briefly these were:
1. That the uncivilised inhabitants of any country have but a
qualified domain over it, or a right of occupancy only; and that,
until they establish amongst themselves a settled form of government,
and subjudicate the ground to their own uses by the cultivation of
it, they cannot grant to individuals, not of their own tribe, any
portion of it, for the simple reason that they have not themselves
any individual property in it.
2. That if a settlement be made in any such country by a civilised
power, the right of pre-emption to the soil, or in other words, the
right of extinguishing the native title, is exclusively in the
Government of that power, and cannot be enjoyed by individuals
without the consent of the Government.
3. That neither individuals nor bodies of men belonging to any nation
can form colonies, except with the consent and under the direction
and control of their own Government, and that from any settlement
which they may form without the consent of their Government they may
be ousted. That is, so far as British subjects are concerned, they
cannot form colonies without the consent of the Crown.
It is not necessary to closely analyse the first of these declarations,
as whatever may be said of it as a principle of law it was not in any
sense applicable to New Zealand. Logicians may amuse themselves
discussing why a people who are capable of granting titles to
individuals of their own tribes are yet incapable of granting similar
rights or concessions to individuals of other nations; or how the
Government of another nation can acquire from those natives a title to
land which it has already declared the natives do not possess and have
no power to give. In other words, it may form sport to the mental
speculator to discover how a Government can extinguish a native title
which that Government has affirmed does not exist, for that is what
this declaration of principle means if it is to be invested with any
meaning at all.
Such reasoning is at this juncture foreign to our purpose, because,
however true it may be that the native lands of New Zealand being held
in common, it was not competent for individual natives to grant titles
to Europeans, seeing that no individual interests had been
ascertained, the right of the tribes of New Zealand to dispose of
their lands as they pleased was incontestable. As has already been
pointed out, they were by no means in such an uncivilised state as to
be devoid of a form of government adequate in all respects for their
primitive purposes. Especially was their occupancy and ownership of
land highly systematised. It may be true that they had not
"subjudicated the ground to their own uses by the cultivation of it,"
as the term cultivation is freely understood by us, but the waste
spaces were just as valuable, just as necessary to them as the garden
patches. Their forests, their open plains, their wild mountain sides
were as much the sources of their food-supply as were their _kumara_
fields, the streams, or the open sea, and so definitely was this
understood amongst them that every hill and valley was known, named,
and owned under one of their various tenures. There was, in fact, no
side of his tribal life about which the Maori held such clear
conceptions, or was so fixed and determined as the occupancy and
ownership of the soil, for which in olden days, as in _Pakeha_ days,
he was ever ready to fight and, if necessary, to die.
If then Sir George Gipps desired to convey to his Council the
impression that the New Zealanders were incompetent to deal with their
own lands, he was setting up an entirely false hypothesis, an error
into which he was no doubt led through not being clearly seized of all
that Maori land tenure implied, the full meaning of which was
afterwards to be debated on many a hard-fought field.
That the right of extinguishing the native title rested solely with
the Crown was a sounder contention, based upon principles deep set in
constitutional law, and supported by the practice of all colonising
nations. It was the endeavour of Mr. Wentworth, and those associated
with him, to depreciate the principle of pre-emption by casting at it
the cheap sneer that it was "American law," and so it was. But it was
British law before it was American law, and has only been heard of in
American courts more frequently than in English tribunals, because
questions incidental to the settlement of the New World have called it
more frequently into prominence there. Broadly put the principle rests
upon the assumption, dating from feudal times, that the King was the
original proprietor of all the land in the kingdom, and the true and
only source of title. Therefore all valid individual titles must be
derived from the Crown. With the development of constitutional
government the personality of the King has disappeared, but still no
nation will suffer either its own subjects or the subjects of another
nation to set up a title superior to its own. It has thus become a
right exclusively belonging to the Government in its sovereign
capacity, to extinguish the native title to a country which it may be
colonising, "to perfect its own domain over the soil, and to dispose
of it at its own good pleasure."
Once admitting that the natives of New Zealand had a valid title to
the soil of the country, and were competent to deal with that title,
the prerogative of the Crown in exercising the pre-emptive right to
extinguish it under the terms of an equitable treaty was not difficult
to maintain. But the buttress[173] behind the attitude which the
Government adopted towards the New Zealand land purchasers was to be
found in the third declaration of principle enunciated by Sir George
Gipps. Here it was laid down "that neither individuals nor bodies of
men belonging to any nation can form colonies, except with the
consent, and under the direction and control of their own Government."
The fundamental reason which induces nations to hedge its subjects
about with this restriction, was thus concisely stated by the Select
Committee of the House of Commons in 1844. Although this Committee
roundly condemned the Treaty of Waitangi as "a part of a series of
injudicious proceedings," it was yet as hostile to the New Zealand
Company in seeking to set up a settlement independent of Imperial
authority, thereby imperilling their own position and prejudicing that
of the Crown.
When large numbers of British subjects have established themselves in
distant regions, inhabited only by barbarous tribes, it is impossible
for Her Majesty's Government to leave them exposed without protection
to the dangers which their own rashness may draw down upon them, or
to allow them to exercise, without control, and perhaps to abuse the
power which their superior civilisation gives them over the rude
natives of the soil. Hence every new establishment of this kind
involves a new demand upon the naval and military resources of the
Empire, but the undue anticipation of such demands must occasion a
very heavy burden upon the nation, and it therefore follows that the
enterprises of colonisation should only be entered upon with the
sanction and under the authority of the Government.
On this ground and on this ground alone the British Government was
justified in calling a halt in the irregular settlement of New
Zealand, and if a mistake was made it was not in that the Government
now interposed their authority,[174] but in that they had not asserted
their rights at a much earlier period. In support of this portion of
his argument Sir George Gipps quoted the opinions of four of the most
eminent lawyers in England of that day, Mr. William Burgh, Mr. Thomas
Pemberton, Sir William Follett, and Dr. Lushington. He was even
uncharitable enough to use against the New Zealand Company the opinion
of their own legal adviser, Sergeant Wilde, the crushing nature of
these authorities completely breaking down the pretensions of his
opponents.
"I leave the Honourable Members of this Council," declared Sir George,
"to say whether they will take the law from the authorities which I
have produced or from the learned gentlemen who have been heard at
their table; remembering, moreover, that the former were giving their
opinions against their clients, the latter arguing, as they were bound
to do, in favour of them."
Sir George also claimed for the British Government the right to
intervene in New Zealand affairs, so far as land titles were
concerned, on the ground of its immediate contiguity to the colony of
New South Wales, in support of which claim he quoted an opinion
expressed by a Committee of the House of Commons in 1837, and in
further appeal he might have advanced the fact that in the previous
fifty years Great Britain had expended no less a sum than £8,000,000
upon colonisation in the South Pacific, a fact which was surely
substantial enough to create the peculiar rights which are inseparably
associated with those intimate relations which grow out of
neighbourhood. Finally, he thus summarised the powers which were
sought for in his measure and those which it did not seek:
The Bill, gentlemen, is not a Bill of spoliation as it has been
described; it is not a Bill to destroy titles, but rather to bestow
titles on persons who at present have none, and who cannot get any
but from the Crown. It is not a Bill to take away any man's
_tenementum_, but to give him a _tenementum_, provided he
can show that he has a fair and equitable claim to it, though not
indeed a _tenementum_ to any one in the lands which were
purchased, or pretended to be purchased, after the issue of my
proclamation and in defiance of it, for not one acre of such land
shall any one ever acquire under it. Nor is it, gentlemen, a Bill to
give Her Majesty any power that she does not already possess; for her
power to disallow these titles is vested in her by virtue of her
prerogative, and of that principle of English law which derives all
landed property from the gift of the Crown. Her Majesty's prerogative
in this matter is about to be exercised, not for the love of power,
not for the lust of patronage, but for the good of her subjects, for
which alone it is given to her; and the exercise of it in this case
will be an additional proof that the prerogative is what it was
elegantly described to be in the course of the pleadings in the
Grenada case, of which we have heard so much, the _decus et tutamen
regni_, the grace, the ornament, the safeguard, not _regis_,
of the King, but _regni_, of the realm. I have not heard one
reasonable and disinterested person object to the main purpose of
this Bill. Of all the witnesses examined before the Committee of the
House of Lords in 1838, no one was so wild as to say that all
purchases from the natives of New Zealand were to be acknowledged; no
one pretended, because the Narraganset Indians sold Connecticut, as
we have been told they did, for a certain number of old coats and
pairs of breeches, or because they sold Rhode Island (as I find they
did), for a pair of spectacles, that therefore Her Majesty is bound
to acknowledge as valid purchases of a similar nature in New Zealand.
The witnesses to whom I have alluded all considered the New
Zealanders as minors, or as wards of Chancery, incapable of managing
their own affairs, and therefore entitled to the same protection as
the law of England affords to persons under similar or analogous
circumstances. To set aside a bargain on the ground of fraud, or of
the incapacity of one of the parties to understand the nature of it,
or his legal inability to execute it, is a proceeding certainly not
unknown to the law of England; nor is it in any way contrary to the
spirit of equity. The injustice would be in confirming any such
bargain; there would indeed be no excuse for Her Majesty's advisers,
if, by the exercise of her prerogative, she were to confirm lands to
persons who pretend to have purchased them at the rate of 400 acres
for a penny; for that is, as near as I can calculate it, the price
paid by Mr. Wentworth and his associates for their twenty millions of
acres in the Middle Island. A great deal was said by this gentleman,
in the course of his address to the Council, of corruption and
jobbery, as well as the love which men in office have for patronage.
But, gentlemen, talk of corruption! talk of jobbery! Why, if all the
corruption which has defiled England since the expulsion of the
Stuarts was gathered into one heap, it would not make up such a sum
as this; if all the jobs which have been done since the days of Sir
Robert Walpole were collected into one job, they would not make so
big a job as the one which Mr. Wentworth asks me to lend a hand in
perpetrating; the job, that is to say, of making to him a grant of
twenty millions of acres at the rate of 100 acres for a farthing! The
Land Company of New South Wales has been said to be a job; one
million of acres at eighteen pence per acre has been thought to be a
pretty good job, but it absolutely vanishes into nothing by the side
of Mr. Wentworth's job. In the course of this gentleman's argument,
he quoted largely from Vattel and the Law of Nations to prove the
right of independent people to sell their lands; and he piteously
complained of the grievous injustice which we should do to the New
Zealanders if we were to deny them the same right; and the Council
may recollect that when I reminded him that he was here to maintain
his own rights and not those of the New Zealanders, he replied, not
unaptly, that as his was a derivative right, it was necessary for him
to show that it had previously existed in the persons from whom he
had derived it; it was, in fact, necessary for him to show that the
right existed in the nine savages, who were lately in Sydney, to sell
the Middle Island, in order to show his own right to purchase it from
them at the rate of 400 acres for a penny! Lastly, gentlemen, it has
been said that the principles on which this Bill is founded are
derived from the times of Cortez and Pizarro--times when not only the
rights of civilised nations, but the rights also of humanity, were
disregarded. To this I answer, that whatever changes (and thank
Heaven they are many) which the progress of religion and
enlightenment have produced amongst us, they are all in favour of the
savage, and not against him. It would be indeed the very height of
hypocrisy in Her Majesty's Government to abstain, or pretend to
abstain, for religion's sake, from despoiling these poor savages of
their lands, and yet to allow them to be despoiled by individuals
being subjects of Her Majesty. It is in the spirit of that
enlightenment which characterises the present age, that the British
Government is now about to interfere in the affairs of New Zealand.
That it interferes against its will, and only under the force of
circumstances, is evident from Lord Normanby's despatch; the objects
for which we go to New Zealand are clearly set forth in it, and
amongst the foremost is the noble one of rescuing a most interesting
race of men from that fate which contact with the nations of
Christendom has hitherto invariably and unhappily brought upon the
uncivilised tribes of the earth. One of the gentlemen who appeared
before you did not scruple to avow at this table, and before this
Council, that he can imagine no motive Her Majesty's Ministers can
have in desiring the acquisition of New Zealand but to increase their
own patronage. The same gentleman is very probably also unable to
imagine any other reason for the exercise of Her Majesty's
prerogative than the oppression of her subjects. These, gentlemen,
may be Mr. Wentworth's opinions. I will not insult you by supposing
they are yours. You, I hope, still believe that there is such a thing
as public virtue, and that integrity is not utterly banished from the
bosoms of men in office. To your hands, therefore, I commit this
Bill. You will, I am sure, deal with it according to your
consciences, and with that independence which you ought to exercise,
having due regard for the honour of the Crown and the interests of
the subject; whilst for myself, in respect to this occupation of New
Zealand by Her Majesty, I may, I trust, be permitted to exclaim, as
did the standard-bearer of the Tenth Legion when Caesar first took
possession of Great Britain, _Et ego certe officium meum Reipublicae
atque Imperatori praestitero_, fearlessly alike of what people may
say or think of me, I will perform my duty to the Queen and to the
public.
This forceful presentation of the case for the Crown left the Council
but one course open to it, and on the following August 4 the Bill had
passed through all its stages and became a colonial statute. Under
its provisions Commissioners in the persons of Messrs. Francis Fisher,
William Lee Godfrey, and Matthew Richmond were appointed and commenced
their investigation of land claims at the Bay of Islands. The
separation of New Zealand from the colony of New South Wales in April
1841, however, put an end to the functions of the Commissioners under
the measure, and it became necessary to revive their powers under a
New Zealand statute. In his instructions covering the granting of a
new Charter to New Zealand as an independent colony, Lord John
Russell, the new Chief Secretary, had sustained the attitude adopted
by his predecessor, Lord Normanby, on the land question. Accordingly,
on June 9, 1841, under advice from Lord John, an ordinance was passed
by the Legislative Council assembled at Auckland, repealing the
previous Act of New South Wales and furnishing Captain Hobson, the now
Governor of New Zealand, with the requisite power to appoint their
successors. Intelligence had also been received in the meantime that
Mr. Spain, an English lawyer, had been appointed Chief Commissioner of
land claims; and under the New Zealand statute only two of the
original Commissioners were reappointed, Mr. Fisher having accepted
the office of Attorney-General to the colony.
With the deliberations and adjustments of this Commission we are not
particularly concerned. What is of importance is that its proceedings
led to a voluminous, and at times acrimonious correspondence between
the New Zealand Company and Lord Stanley, who, in 1841, succeeded Lord
John Russell as Secretary of State for the Colonies in Sir Robert
Peel's cabinet. During the course of this correspondence the Company
boldly maintained that, under an arrangement made with his
predecessor,[175] they were so situated as to be beyond the pale of
the Commission's enquiries which they said would shake every title in
their settlements. They declared that the circumstances in which they
had acquired the land they were now claiming were such as could not be
affected by the Treaty of Waitangi, they even repudiated the validity
of the treaty itself. On January 24, 1843, Mr. Joseph Somes, as
Governor of the Company, despatched that celebrated letter to Lord
Stanley in which occurred this significant passage: "We have always
had very serious doubts whether the Treaty of Waitangi, made with
naked savages by a Consul invested with no plenipotentiary powers,
without ratification by the Crown, could be treated by lawyers as
anything but a praiseworthy device for amusing and pacifying savages
for the moment."
On the 15th of the following month a further letter was received from
Mr. Somes, in which he specifically denied the application of the
treaty to the particular possessions of the Company; and in order to
give a verisimilitude of truth to his argument deliberately made light
of the historical facts connected with the signing of the treaty:
"We have not," he wrote, "thought proper, hitherto, to advert to the
Treaty of Waitangi except incidentally. But as we observe that it has
occasionally been dwelt upon by your Lordship as being of some
importance to the view taken by you in opposition to our claims, it
is well that we should not quit the subject without remarking that
your Lordship appears always to speak of that treaty as bearing on
the entire claim of the Company. Now, your Lordship ought to be
apprised of the fact that the Treaty of Waitangi itself applies to no
part of the vast extent of country over which we claim the right of
selection. The chiefs who signed the treaty neither could, nor did,
pretend to cede anything but the northern corner of the Northern
Island. Subsequently, it is true, Captain Hobson procured the
accession to the treaty of chiefs further south. But the alleged
accession of the chiefs within the limits of the Company's
possessions in the Northern Island rests merely on evidence far too
slight and loose to be taken as establishing a fact of such grave
public character; at any rate, half at least of the 20,000,000
affected by our claim lie in the Middle (South) Island; and the
Middle and Stewart's Islands, it is obvious, cannot be affected by
the Treaty of Waitangi, inasmuch as Her Majesty's title to them was
'asserted' on the grounds of discovery without pretence to any treaty
or cession."
This attempt to mislead the Minister by a flagrant disregard for the
proceedings of Major Bunbury and all that those proceedings implied,
was unfortunately but too characteristic of the methods pursued by the
Company at this time, whose officers had now developed a dexterity in
conjuring with facts against the subtlety of which the Minister could
not too jealously guard the public interests.
To the equivocal attitude adopted by the Company Lord Stanley replied
through his Under-Secretary, Mr. Hope, in one of the noblest passages
ever penned by a British Minister,--a passage in which he sternly
refused to sacrifice official integrity to mere commercialism or
national honour to ambitious personal ends:
"Lord Stanley," wrote Mr. Hope, "is not prepared, as Her Majesty's
Secretary of State, to join with the New Zealand Company in setting
aside the Treaty of Waitangi, after obtaining the advantages
guaranteed by it, even though it might be made with 'naked savages,'
or though it might be treated by lawyers as 'a praiseworthy device
for amusing and pacifying savages for the moment.' Lord Stanley
entertains a different view of the respect due to the obligations
contracted by the Crown of England, and his final answer to the
demands of the New Zealand Company must be that, so long as he has
the honour of serving the Crown, he will not admit that any person,
or any Government acting in the name of Her Majesty, can contract a
legal, moral, or honorary obligation to despoil others of their
lawful and equitable rights."
Foiled in their efforts to induce the Colonial Minister to award them
the full measure of their enormous claim without question or enquiry,
the Company then preferred a claim for compensation against the State
on the grounds that the policy of the Colonial Office and the
proceedings of the Government in New Zealand had brought them to the
verge of financial ruin. Still powerful in the House of Commons they
were able to exert considerable influence there, and in April 1844 a
Select Committee was set up, with Lord Howick, now one of the
Company's warmest friends, as Chairman, and an order of reference
which authorised them "to enquire into the State of the Colony of New
Zealand, and into the proceedings of the New Zealand Company."
The Committee sat until July, taking voluminous evidence from many
persons who had some previous knowledge of the country, and when they
met to formulate their report it was found that they were sharply
divided on material points. A section of the Committee, led by Messrs.
Cardwell and Hope, Lord Stanley's Under-Secretary, endeavoured to so
frame the report as to make amongst others the following acknowledgments:
That from the time of the discovery by Captain Cook to the beginning
of the year 1840, the independence of New Zealand had never been
questioned by this country, and in 1832 was recognised by the British
Government in a very peculiar and formal manner.
That the urgent applications made by private individuals from time to
time to the Colonial Office for the adoption of these islands as a
British colony, were reluctantly acceded to by the British Government
in 1839, with a view to preventing the evils arising and apprehended
from irregular and unauthorised settlement.
That this adoption was effected in the early part of 1840 by an
agreement called the Treaty of Waitangi, made by Captain Hobson with
upwards of 500 chiefs and other natives, claiming and admitted on the
part of this country, to represent the whole population, so far as
regarded the Northern Island; while the other islands, which
contained no population capable of entering into anything resembling
a civil contract, were assumed to the British Crown by the right and
title of discovery.[176]
That this treaty was made by Captain Hobson in pursuance of
instructions previously received from Home, and that his proceedings
obtained the subsequent approbation of the Government.
That the natives ceded to the Queen the sovereignty of the Northern
Island, and the Crown secured, in return, to the chiefs and tribes of
New Zealand, and to the respective families and individuals thereof,
the full, exclusive, and undisturbed possession of their lands and
estates, forests, fisheries, and other properties, which they may
collectively and individually possess, so long as it is their wish
and desire to retain the same in their possession.
That this treaty is binding, in conscience and policy, on the British
Government and is highly valued by the native tribes.
That although the laws and usages of the natives with regard to the
possession of and title to land are very obscure and complicated, yet
evidence has been adduced to the Committee showing that these laws
and usages are in some sense recognised by the natives, as well among
themselves as in reference to European purchasers, and many instances
have been proved in which they have voluntarily and fully recognised
European titles.
That while it appears highly probable that much of the soil of New
Zealand will ultimately rest in the British Crown, as land to which
no proprietary title of any kind can be established by an individual,
or by any tribe, yet it is impossible, by any fair construction of
the treaty, to limit the native claims either to the _pas_ or to
the grounds in actual cultivation by the natives at any particular
time.
That any attempt to carry out in practice any such construction must
alienate the natives from every feeling either of confidence or
affection towards the British Government, and would probably lead to
conflicts of a sanguinary character, or even to an exterminating
warfare between the races, for which the British power in these
Islands is at present wholly inadequate and unprepared.
That it is not expedient to increase the military force in the
colony, at great expense, for a purpose unjust in itself, and tending
to retard the peaceful settlement of the colony and the civilisation
of the native race.
[Illustration: CAPTAIN HOBSON'S SIGNATURES TO THE TREATY.
These signatures to the various copies of the Treaty used indicate in
a pathetic way the progress of Captain Hobson's illness. The final
copy he was not able to sign, and it was signed by Lieut. Shortland on
his behalf.]
These recommendations of Mr. Cardwell, which also largely reflected
the opinions of the Government, were energetically opposed by Lord
Howick and his friends, who put forward a counter series of
suggestions, which just as strongly reflected the views and
aspirations of the New Zealand Company, particularly upon the crucial
point that no acknowledgment should be made of any proprietary rights
on the part of the natives in the unoccupied lands of New Zealand.
They affirmed amongst other things:
1. That the conclusion of the Treaty of Waitangi by Captain Hobson
with certain natives of New Zealand, was a part of a series of
injudicious proceedings which had commenced several years previous to
his assumption of the local Government.
2. That the acknowledgment by the local authorities of a right of
property on the part of the natives of New Zealand in all wild lands
in those Islands, after the sovereignty had been assumed by Her
Majesty, was not essential to the true construction of the "Treaty of
Waitangi," and was an error which has been productive of very
injurious consequences.
3. That means ought forthwith to be adopted for establishing the
exclusive title of the Crown to all land not actually occupied and
enjoyed by natives or held under grants from the Crown, such lands to
be considered as vested in the Crown for the purpose of being
employed in the manner most conducive to the welfare of the
inhabitants, whether natives or Europeans.
When the Committee was asked to determine which of these two rival
reports it would adopt, it was found that opinion was evenly divided,
but on a division being taken Lord Howick succeeded in defeating his
opponents by the narrow majority of one vote, the voting being as
follows upon the question proposed by Mr. Roebuck: "That the Committee
now proceed to the consideration of the resolutions proposed by the
chairman as the basis of the report."
Ayes--7.
Mr. Milnes.
Mr. Roebuck.
Mr. Hawes.
Mr. Aglionby.
Mr. Charteris.
Lord Francis Egerton.
Lord Ebrington.
Noes--6.
Mr. Hope.
Mr. R. Clive.
Mr. Cardwell.
Lord Jocelyn.
Sir Robert Inglis.
Mr. Wilson Patten.
In vain did Mr. Hope endeavour by moving amendments to induce the
Committee to adopt a view of the Treaty of Waitangi more favourable to
the natives, but through the divisions of several days the Company
held its majority, and on July 23 the Committee agreed to the draft
report proposed by Lord Howick, and which was based on the resolutions
previously approved. When this report was laid before the House of
Commons it was found that the Committee had traversed the policy
adhered to by the Melbourne and the Peel Governments in its
interpretation of the Treaty of Waitangi, and that they had taken the
responsibility of declaring that:
The evidence laid before your Committee has led them to the conclusion
that the step thus taken (the promotion of the Treaty of Waitangi),
though a natural consequence of previous errors of policy, was a
wrong one. It would have been much better if no formal treaty
whatever had been made, since it is clear that the natives were
incapable of comprehending the real force and meaning of such a
transaction, and it therefore amounted to little more than a legal
fiction, though it has already in practice proved to be a very
inconvenient one, and is likely to be still more so hereafter. The
sovereignty over the Northern Island might have been at once assumed
without this mere nominal treaty, on the ground of prior discovery,
and on that of the absolute necessity of establishing the authority
of the British Crown for the protection of the natives themselves,
when so large a number of British subjects had irregularly settled
themselves in these Islands, as to make it indispensable to provide
some means of maintaining good order amongst them. This was the
course actually pursued with respect to the Middle and Southern
Islands, to which the Treaty of Waitangi does not even nominally
extend, and there is every reason to presume that, owing to the
strong desire the natives are admitted to have entertained for the
security to be derived from the protection of the British Government
and for the advantages of a safe and well-regulated intercourse with
a civilised people, there would have been no greater difficulty in
obtaining their acquiescence in the assumption of sovereignty than in
gaining their consent to the conclusion of the treaty, while the
treaty has been attended with the double disadvantage: first, that
its terms are ambiguous, and in the sense in which they have been
understood highly inconvenient; and next, that it has created a doubt
which could not otherwise have existed, which, though not in the
opinion of your Committee well founded, has been felt and has
practically been attended with very injurious results, whether those
tribes which were not parties to it are even now subject to the
authority of the Crown.
Your Committee have observed that the terms of the treaty are
ambiguous, and in the sense in which they have been understood, have
been highly inconvenient; in this we refer principally to the
stipulations it contains with respect to the right of property in
land. The information that has been laid before us shows that these
stipulations, and the subsequent proceedings of the Governor,
founded upon them, have firmly established in the minds of the
natives notions which they had but then very recently been taught to
entertain, of their having a proprietary title of great value to land
not actually occupied, and there is every reason to believe that, if
a decided course had at that time been adopted, it would not have
then been difficult to have made the natives understand that, while
they were to be secured in the undisturbed enjoyment of the land they
actually occupied, and of whatever further quantity they might really
want for their own use, all the unoccupied territory of the Islands
was to vest in the Crown by virtue of the sovereignty that had been
assumed.
The findings of the Committee were thus so radically opposed to the
established views of Lord Stanley upon the construction to be placed
upon the treaty, that the Minister refused to countenance them in any
way, or to ask the House of Commons to become a party to a policy
which, had it been enforced, would inevitably have led Britain into
one of her little wars, as inglorious as it would have been unjust.[177]
In transmitting a copy of the Committee's report to Governor Fitzroy,
the Chief Secretary stressed in his Despatch of August 13 (1844) the
narrow margin of votes by which the report had been adopted, and
emphasised the high moral principle that it was still the duty of both
the Governor and himself to administer the affairs of the colony "with
a due regard to a state of things which we find, but did not create,
and to the expectations founded, not upon what might have been a right
theory of colonisation, but upon declarations and concessions made in
the name of the Sovereign of England." The power of Parliament was,
therefore, not invoked to aid the Company in evading its just
obligations to the natives. Their land claims were still to be the
subject of searching enquiry by the Chief Commissioner, Mr. Spain, and
for the moment the Treaty of Waitangi was vindicated by the
steadfastness of the Colonial Minister. But the battle was not
over, the scene of the conflict only was changed. On June 17, 1845,
Mr. Charles Buller, then representing Liskeard, and whose long
association with Lord Durham and Mr. Gibbon Wakefield had more than
once brought him into prominence in New Zealand affairs, sought to
induce the Commons again to discuss both the policy and administration
of the colony on the floor of the House. Then ensued the historic
debate, during which New Zealand achieved the distinction of claiming
the exclusive attention of Parliament for three consecutive nights.
It would be superfluous to recapitulate here the speeches delivered
during this memorable discussion, embodied as they are in the records
of the nation; it is, however, worthy of passing remark that for the
sake of some party advantage several prominent members, notably Lord
John Russell, chose to reverse all their previous professions on the
subject of the Treaty of Waitangi, and threw the weight of their
influence into the scale against the just recognition of the rights of
the New Zealand natives. Well might Rusden exclaim: "On what plea
could the Whigs abandon the construction put upon the treaty by their
own leaders who made it?"
A division being taken, Mr. Buller's motion was defeated, and on
receipt of this intelligence Governor Fitzroy[178] wrote with
perfectly natural elation to Henry Williams: "Let me congratulate you
on the result of the three nights' sharp debate in the House of
Commons on New Zealand. The Company were beaten by fifty-one votes,
the integrity of the Treaty of Waitangi being thus secured against all
their infamous endeavours, for _that_ was the point at issue."
While the events thus far narrated in this chapter had been evolving
from the lap of time, Governor Hobson had died,[179] and had been
buried at Auckland. Lieutenant Shortland's brief term of
administration had been darkened by the Wairau Massacre, the first
fruit of the contempt shown by the Wakefields for the landed rights of
the natives. His successor, Governor Fitzroy, had long since been
driven to distraction by the machinations of the Company and the
failure of the Home authorities to give him needful support in either
men or money. The crowning disaster of his administration was the
attack upon the town of Kororareka at daylight on March 11, 1845, by
Heke and Kawiti. The House of Commons had been ignorant of this
happening when it had debated Mr. Buller's motion in the previous
June, but when the ominous tidings reached England in July, that wary
gentleman sprang once more alertly to the attack by moving: "That this
House regards with regret and apprehension the state of affairs in New
Zealand; and that those feelings are greatly aggravated by the want of
any sufficient evidence of a change in the policy which has led to
such disastrous results."
This debate was not less acrimonious than its predecessor, for not
only was Lord Stanley attacked, but Mr. Stephen, the permanent head of
the Colonial Department, was assailed with equal virulence. Stanley
had ere this removed to the House of Lords, and Stephen was precluded
by virtue of his position from defending himself. But for these two
men, as well as for the honour of the nation, Sir Robert Peel stood in
stalwart defence. He told the House that he was not enamoured of the
policy which had resulted in the consummation of the Treaty of
Waitangi. For his part he candidly admitted that in his opinion it was
a mistake, but since the treaty was an indisputable political fact,
its obligations must not be violated. Lord Melbourne's Government, he
said, had with a full sense of their responsibility, entered into the
compact and England was unquestionably bound by it.[180]
In vindication of Lord Stanley he declared that the real purpose
behind Mr. Buller's motion was an insidious desire to unjustly censure
his Minister for avowing his determination to carry honourably into
effect the treaty made by his predecessor. Then reverting to the land
question he continued: "After all the volumes of controversy which
have appeared, the question really resolves itself into this: Shall
the Government undertake to guarantee in this country, within certain
limits in New Zealand, a certain amount of land without reference to
the rights to that land vesting in the natives? This I tell you
distinctly we will not do, and if the House entertains a different
opinion, it is but right that it should give expression to it. We will
not undertake, in the absence of surveys and local information as to
the claims of the natives, to assign to you a million, or any other
number of acres, and dispossess the natives by the sword."
In concluding he again entered upon a vigorous defence of his Colonial
Minister, declaring his continued confidence in Lord Stanley in the
following resolute words: "I will not do that which the New Zealand
Company seem to think I might do--undertake to supersede a Minister
who I believe has discharged his official duties with almost
unexampled ability, and with a sincere desire to promote the interests
of every colony over which he now presides."
Influenced by the Premier's strenuous advocacy, the House again
rejected Mr. Buller's motion on July 23, but the friends of the
Company derived some comfort from the knowledge that a despatch had
been sent recalling Governor Fitzroy, who, in his anxiety to restore
the bankrupt finances of the country, had disregarded the Royal
instructions, and instituted a local currency as well as having taken
the more serious responsibility of varying the inflexible policy of
the Government by waiving the pre-emptive right of the Crown[181] to
purchase land from the natives, in the hope of removing the growing
discontent and of enhancing the revenue from increasing sales.
Defeated in Parliament, the Company's next proceeding was almost
humorous in its hysteria. They procured an opinion from Mr. William
Burge, in which that gentleman averred, on his reputation as a lawyer,
that the British occupation of New Zealand was from the beginning
unlawful, and based upon no sound constitutional foundation. This
remarkable document they transmitted to Lord Stanley on July 7, in the
hope that he would be so awed by it as to cause him to considerably
modify the instructions which they were convinced he would, in his
normal frame of mind, most certainly tender to Captain Grey, whom he
had selected to succeed Governor Fitzroy. Lord Stanley was made of
different stuff. He suffered no particular trepidation from Mr.
Burge's startling discovery, but merely sent his opinion on to Fitzroy
Kelly, Attorney-General, Sir Frederick Thesiger, Solicitor-General,
and to Sir Thomas Wilde, who had been the Attorney-General in Lord
Melbourne's Cabinet when Captain Hobson was sent out to negotiate the
Treaty of Waitangi. These gentlemen averred with equal confidence that
neither the reasons advanced by Mr. Burge, nor any other considerations
which had occurred to them, furnished them with any well-founded doubt
upon the question of Britain's sovereignty in New Zealand.
Reinforced by the opinion of this eminent trio, Lord Stanley sent a
copy to the new Governor, telling him to be guided by it in his
conduct, at the same time instructing him that if the Company
attempted to make capital in the colony out of Mr. Burge's
pronouncement, he was to counter the move by giving equal publicity to
the joint opinion of the three legal advisers of the Crown.
When Captain Grey reached New Zealand on November 14, he found the
country seething with discontent. The European population now numbered
approximately 12,000, scattered over widely separated settlements, the
natives probably numbered not less than 110,000, many of whom were in
open revolt under Heke and Kawiti; many more were holding their
allegiance in the balance.
The mischievous resolutions passed by the Select Committee of the
House of Commons in the previous year had ere this percolated to the
colony, and fired the doubts of the natives as to the sincerity of the
Crown. Governor Fitzroy had used his best endeavours to reassure them,
and in offering terms of peace to Heke he made it the first stipulation
that the covenants of the Treaty of Waitangi should be binding upon
both parties. To these advances Heke had sullenly refused to reply.
With the rebels unyielding, obviously Grey's first duty was to
ascertain where he stood with the friendlies and the neutrals. For
this purpose he summoned a meeting at the Bay of Islands, and amidst
the ruins of the wrecked town of Kororareka he delivered to the
assembled chiefs one of his characteristic addresses, in which, after
warning the people against treacherously assisting the rebels, he said:
In the meantime, I assure the whole of the chiefs that it is the
intention of the Government, most punctually and scrupulously to
fulfil the terms and provisions of the treaty which was signed at
Waitangi on the arrival of Governor Hobson. I have heard that some
persons, evil disposed both towards the Queen of England and the
Chiefs of this country, have told you that by your signing that paper
you lost your lands. This I deny. By that treaty the protection of
the Queen and your possessions are made sure to you. Your lands shall
certainly not be taken from you without your consent. You can sell
your lands to the Crown, or not sell them, just as you think proper,
but, remember, that when once you do sell them, they must be promptly
and justly given up.
The professions of the Government's good-will to the natives were
renewed, they were told of the Queen's solicitation for their material,
moral, and religious welfare, and once more assurances were given that
equal justice would be meted out to both Maori and European, to which
Tamati Waaka Nēne replied: "It is just."
As the result of this conference Grey felt that he could rely upon the
loyalty of the friendly natives, and that this adhesion to the Crown
grew out of the fact that they were, as the Governor expressed it in
his Despatch, "Unanimous in desiring protection and support from the
Government; that they were quite aware of the advantages conferred
upon them by the annexation of New Zealand to the British Empire, and
that the large mass of the inhabitants sincerely desired to see peace
and tranquillity restored, so that the Government might be invested
with that weight and authority which is essentially necessary to
enable it properly to perform its functions."[182]
With the position of parties both in England and in the colony thus
firmly determined, it appeared that the Treaty of Waitangi would now
be accepted as the basis of a settlement of the colony's affairs; but
these sanguine expectations were speedily doomed to disappointment. By
one of those inexplicable revolutions which not infrequently occur in
the wheel of political fortune, Sir Robert Peel's Ministry was ousted
from office in the latter part of June. Lord John Russell came back to
power, and Lord Howick, who in the meantime had succeeded his father
as Earl Grey, became Chief Secretary for the Colonies in the new
administration.
As Lord John Russell had so recently modified his views upon the
subject of the Treaty of Waitangi as to admit of his saying that Maori
rights in land narrowed down to territory "in actual occupation by
them," the way had been cleared by which his Secretary for the
Colonies might put into operation his pet theories for the
nullification of the Treaty of Waitangi.[183] This opportunity came to
him when it fell to his lot to prepare a new Constitution for the
youngest of Britain's possessions.
New Zealand had now been a colony independent of New South Wales for
the better part of five years, during which time, under the advantages
of a more or less settled government, she had made phenomenal
progress. So rapid had been her development, so steadily had her
population increased, that in the opinion of many of her most
influential Colonists the time had arrived when they should be
invested with all the privileges of responsible government. With this
democratic movement the Governor was in entire sympathy and aided the
aspirations of the people by the weight of his influence. The implicit
confidence which the Home authorities at this period placed in Grey's
discretion doubtless led them to more readily acquiesce in the
liberalisation of the Charter granted in 1840, and in conveying to the
Governor the determination of Parliament, the Colonial Secretary
explained that the necessity of a fundamental change from the position
created when Captain Hobson was appointed had been insisted on by all
parties to the discussion, there being an almost equally unanimous
concurrence among them that the change should be in the direction of
calling the settlers to participate much more largely in the business
of legislation and local self-government. He accordingly enclosed on
December 23 (1846) the Imperial Act, and the Royal Instructions which
were to give effect to this determination.
The functions of a governor in a Crown Colony are many and various,
and Grey's receipt of this Despatch was perhaps as picturesque as any
event in his romantic life. There was insurrection at Whanganui--a
reflex of Heke's rebellion in the north--whither Grey had gone to aid
in its quelling, and he was watching from a hill-side a skirmish
between the troops and the insurgents when the Chief Secretary's
communication was handed to him. He sat down upon the grassy bank, and
with the crack of rifles and the hiss of bullets ringing in his ears
he calmly read the fateful document. What the Governor's feelings were
when he perused the Charter we need not stay to enquire. Fortunately
he had been given a discretionary power as to when it should take
effect, and he did not wait long before he determined that its
indefinite suspension was inevitable. Grey's brief experience in New
Zealand, as well as his innate love of justice, had taught him to
regard the Treaty of Waitangi as the sheet-anchor of the colony's
settlement, upon the faithful observance of which it was alone
possible to maintain peace with the Maori.
In two vital particulars the new Charter fatally traversed the treaty,
and one can only marvel, in the face of the obvious meaning which
attaches to the plain words of the compact, how any British Minister
could satisfy himself with the sophistry indulged in by the Colonial
Secretary. A cardinal omission was detected by the Governor in the
fact that no provision was made for the representation of the Maori
race in the contemplated Parliament, to which, as British subjects,
they were entitled; but worse than all, Earl Grey had again
promulgated his strangely perverted opinions upon the subject of
native ownership of lands. The Charter was covered by a lengthy
Despatch in which the Chief Secretary elaborated his views, and in
order that those views may not suffer by condensation they are here
quoted at length. After adverting to the manner in which the various
heads of his instructions had been classified, he proceeds:
Believing that the instructions, as thus prepared,[184] will be found
to convey their meaning perspicuously and completely, I abstain from
any attempt to recapitulate or explain their provisions. I turn to
other topics on which it seems indispensable that on the present
occasion I should convey to you explanations, for which, of course,
no appropriate place could be found in the legal instruments already
mentioned. I advert especially to what relates to the aborigines of
New Zealand and the settlement of the public lands in those Islands.
I cannot approach this topic without remarking that the protracted
correspondence to which it has given rise, the public debates and
resolutions which have sprung from it, and the enactments and
measures of your predecessors in the Government, have all contributed
to throw into almost inextricable confusion the respective rights and
claims of various classes of individuals amongst the inhabitants of
New Zealand, to render very embarrassing the enquiry in which you
must doubtless be engaged respecting the line of conduct which Her
Majesty's Government expect you to pursue, and at the same time to
make it almost impossible for us to determine with any confidence
what that conduct ought to be, and how far, in a state of affairs so
complicated, it is possible now to act upon the principles to which,
in the absence of these difficulties, I should have prescribed your
adherence. I will not attempt any retrospect of those documents and
proceedings; I should be but adding to the perplexity which I
acknowledge and regret. It will be my attempt rather to explain, as
briefly as the nature of the subject admits, what is the policy
which, if we were unembarrassed by past transactions, it would be
right to follow, and which (so far as any freedom of choice remains
to us) ought still to be adopted, regarding the right of property in
land which should be acknowledged or created, more especially as
affecting the aborigines of New Zealand.
I enter upon this topic by observing that the accompanying statute,
9th & 10th Vict., ch. 104, sec. 11, repeals the Australian Land Sales
Act, as far as relates to the lands situate in New Zealand. Thus
there is a complete absence of statutory regulation on the subject.
The Queen, as entitled in right of her Crown to any waste lands in
the colony, is free to make whatever rules Her Majesty may see fit on
the subject. The accompanying Charter accordingly authorises the
Governor to alienate such lands. The accompanying instructions direct
how that power is to be used. I proceed to explain the motives by
which those instructions have been dictated.
The opinion assumed, rather than advocated, by a large class of
writers on this and kindred subjects is, that the aboriginal
inhabitants of any country are the proprietors of every part of its
soil of which they have been accustomed to make any use, or to which
they have been accustomed to assert any title. This claim is
represented as sacred, however ignorant such natives may be of the
arts or of the habits of civilised life, however small the number of
their tribes, however unsettled their abodes, and however imperfect
or occasional the uses they make of the land. Whether they are
nomadic tribes depasturing cattle, or hunters living by the chase, or
fishermen frequenting the sea-coasts or the banks of rivers, the
proprietary title in question is alike ascribed to them all.
From this doctrine, whether it be maintained on the grounds of
religion or morality, or of expediency, I entirely dissent. What I
hold to be the true principle with regard to property in land is that
which I find laid down in the following passage from the works of Dr.
Arnold, which I think may safely be accepted as of authority on this
subject, not only on account of his high character, but also because
it was written, not with reference to passing events, or to any
controversy which was at that time going on, but as stating a
principle which he conceived to be of general application:
"Men were to subdue the earth: that is, to make it by their labour
what it would not have been by itself; and with the
labour so bestowed upon it came the right of property in it. Thus
every land which is inhabited at all belongs to somebody; that is,
there is either some one person, or family, or tribe, or nation who
have a greater right to it than any one else has; it does not and
cannot belong to anybody. But so much does the right of property go
along with labour that civilised nations have never scrupled to take
possession of countries inhabited by tribes of savages--countries
which have been hunted over, but never subdued or cultivated. It is
true, they have often gone further, and settled themselves in
countries which were cultivated, and then it becomes a robbery; but
when our fathers went to America, and took possession of the mere
hunting grounds of the Indians--of lands on which man had hitherto
bestowed no labour--they only exercised a right which God has
inseparably united with industry and knowledge."
The justness of this reasoning must, I think, be generally admitted,
and if so, it can hardly be denied that it is applicable to the case
of New Zealand, and is fatal to the right which has been claimed for
the aboriginal inhabitants of those islands to the exclusive
possession of the vast extent of fertile but unoccupied lands which
they contain. It is true the New Zealanders, when European settlement
commenced amongst them, were not a people of hunters: they lived, in
a great measure at least, upon the produce of the soil (chiefly
perhaps its spontaneous produce) and practised to a certain extent a
rude sort of agriculture. But the extent of land so occupied by them
was absolutely insignificant when compared with that of the country
they inhabited; the most trustworthy accounts agree in representing
the cultivated grounds as forming far less than one-hundredth part of
the available land, and in stating that millions of acres were to be
found where the naturally fertile soil was covered by primeval
forests or wastes of fern, in the midst of which a few patches
planted with potatoes were the only signs of human habitation or
industry. The islands of New Zealand are not much less extensive than
the British Isles, and capable probably of supporting as large a
population, while that which they actually supported has been
variously estimated, but never, I believe, as high as 200,000 souls.
To contend that under such circumstances civilised men had no right
to step in and take possession of the vacant territory, but were
bound to respect the proprietary title of the savage tribes who dwell
in but were utterly unable to occupy the land, is to mistake the
grounds upon which the right of property in land is founded. To that
portion of the soil, whatever it might be, which they really
occupied, the aboriginal inhabitants, barbarous as they were, had a
clear and undoubted claim; to have attempted to deprive them of their
patches of potato-ground, even so to have occupied the territory as
not to leave them ample space for shifting, as was their habit, their
cultivation from one spot to another, would have been in the highest
degree unjust; but so long as this injustice was avoided, I must
regard it as a vain and unfounded scruple which would have
acknowledged their rights of property in land which they did not
occupy; it is obvious that they could not convey to others what they
did not themselves possess, and that claims to vast tracts of waste
land, founded on pretended sales from them, are altogether untenable.
From the moment that British dominion was proclaimed in New Zealand,
all lands not actually occupied in the sense in which alone
occupation can give the right of possession, ought to have been
considered as the property of the Crown in its capacity of trustee
for the whole community, and it should thenceforward have been
regarded as the right, and at the same time the duty of those duly
authorised by the Crown, to determine in what manner and according to
what rules the land hitherto waste should be assigned and
appropriated to particular individuals. There is another
consideration which leads to the same conclusion. It has never been
pretended that the wide extent of unoccupied land, to which an
exclusive right of property has been asserted on behalf of the native
inhabitants of New Zealand, belonged to them as individuals, it was
only as tribes that they were supposed to possess it, and granting
their title as such to have been good and valid, it was obviously a
right which the tribes enjoyed as independent communities--an
attribute of sovereignty, which, with the sovereignty, naturally and
necessarily was transferred to the British Crown. Had the New
Zealanders been a civilised people this would have been the case--if
these islands, being inhabited by a civilised people, had been added
either by conquest or by voluntary cession to the dominions of the
Queen, it is clear, that according to the well-known principles of
public law, while the property of individuals would have been
respected, all public property, all rights of every description which
have appertained to the previous sovereigns, would have devolved, as
a matter of course, to the new sovereign who succeeded them. It can
hardly be contended that these tribes, as such, possessed rights
which civilised communities could not have claimed.
Such are the principles upon which, if the colonisation of New
Zealand were only now about to begin, it would be my duty to instruct
you to act; and though I am well aware that in point of fact you are
not in a position to do so, and that from past transactions a state
of things has arisen in which a strict application of these
principles is impracticable, I have thought it right that they should
be thus explicitly stated in this Despatch (as they are in the Royal
instructions to which it refers), in order that you may clearly
understand that, although you may in many respects be compelled to
depart from them, still you are to look to them as the foundation of
the policy which, so far as it is in your power, you are to pursue.
The imperfect information which alone at this distance I can hope to
obtain as to the actual state of affairs in New Zealand, renders it
impossible for me to venture to prescribe to you how far you are to
go in attempting practically to act upon the principles I have laid
down. I should infer from your own Despatches, as well as from those
of your predecessors, that the right of the Crown could not now be
asserted to large tracts of waste land which particular tribes have
been taught to regard as their own. It appears that you have found it
expedient to admit these pretentions to a considerable extent; and
having done so, no apparent advantage could be suffered to weigh
against the evil of acting in a manner either really or even
apparently inconsistent with good faith. While, however, you
scrupulously fulfil whatever engagements you have contracted, and
maintain those rights on the part of the native tribes to land which
you have already recognised, you will avoid as much as possible any
further surrender of the property of the Crown. I trust also that the
evil which would otherwise arise from the concessions already made,
may to a great degree be neutralised by your strictly maintaining the
exclusive right of the Crown to purchase land from the native tribes
to which it has been assumed that it belongs. This right, resting as
it does not only upon what has been called the "Treaty of Waitangi,"
but also upon the general and long-recognised principles of national
law, is one so important that it ought almost at all hazards to be
strictly enforced. To suffer it to be set aside would be to acquiesce
in the ruin of the colony, since it would be fatal to the progressive
and systematic settlement of the country. It is by the sale of land
at more than a nominal price that its appropriation to individuals in
allotments in proportion to their power of making use of it can alone
be secured. It is the mode by which, with least inconvenience and
difficulty, funds can be raised for emigration and for executing
those public works which are necessary for the profitable occupation
of the soil; in short, it is the very foundation on which systematic
colonisation must be based. But if the native tribes are permitted to
sell large tracts of land to individuals for a mere nominal
consideration, it is obvious that so much land will be thrown upon
the market as entirely to defeat the attempt to sell such lands as
the Crown may still retain, at a price sufficient to answer the
objects of the policy I have described.
The first and most important step which you will have to take with
the view of introducing a regular system with respect to the disposal
of land, will be to ascertain distinctly the ownership of all the
land in the colony. The extent and limits of all which is to be
considered as the property either of individuals, of bodies politic
or corporate, or of the native tribes, must in the first instance be
determined, and the whole of the remainder of the territory will then
be declared to be the Royal demesne. The results of this enquiry
must be carefully registered, and a regular record henceforth
preserved, showing to whom all lands in New Zealand belong. This
measure has been repeatedly and earnestly inculcated on your
predecessors, and I cannot too strongly repeat the same injunction.