The Second Year of One of England's Little Wars
NOTES BY SIR WILLIAM MARTIN
NOTES BY SIR WILLIAM MARTIN.
The Debates in the House of Representatives, in August, 1860, made it notorious throughout the country, that there was a great difference of opinion amongst the Colonists themselves, as to proceedings of the Government. I believe that notoriety to have had a most wholsome effect in checking the spread of the war. The Natives were thereby encouraged to believe that what was done at the Waitara was not the doing of the Pakeha as a race, and would not be approved by the Queen.
There can be no clear understanding of the present state of affairs, unless we distinguish between two things which are confounded in official papers, the British Government, and the Colonial Government. Even yet the great mass of the Native population is disposed to trust to the justice of the British Government, but I fear there are few who are disposed to trust to the justice of the present Colonial Government.
Every one knows with how much caution it is necessary to regard statements made after the fact by persons concerned in justifying what has been done. The statements here cited from page 24 Mr. McLean, are no exception to the general rule. I do not wish to examine them narrowly. I only ask that the strong assertions here made be compared with the evidence set forth in my text. Beyond this, I confine myself to three particular points. 1st, Mr. McLean here justifies the proceedings of Mr. Parris in the most unqualified language, in the face of the fact that Mr. Parris had not obeyed the express injunctions of Mr. McLean himself, which required him to visit the absentee claimants personally: 2nd, the numerous and frivolous claims made by persons who seek to share in the purchase money—which claims are themselves the product and effect of the secret system of land purchasing—are urged as reasons against the employment of that open and legitimate mode of inquiry, which would prevent or destroy them: 3rd, the grave doubts affecting the transaction at Queen Charlotte's Sound are passed over without notice.
Here, on the subject of the “Investigation,” the same course is taken by Mr. Richmond as before, with reference to the “points in dispute.” Scraps and fragments of doubtful assertions, and unsifted evidence are produced by Mr. Richmond, and we are asked to accept them as a substitute for that proper inquiry which was demanded by every consideration of justice and expediency. Unproved allegations and uncertain inferences cannot be allowed to take its place. The defect of inquiry can only be supplied by a proper inquiry herafter. The web, which Mr. Richmond has woven, is too weak to bear the weight of a civil war. One passage only I think it necessary to notice: It is as follows (Par. 82); “Where unrepresented claimants are known, or believed, to exist, the Government makes inquiry on the spot; as was done in the present case at Queen Charlotte's Sound, and at Wellington. But where (as in the case of the Waikanae Natives) there is no reason to believe in the existence of valid claims, no local investigation is instituted. The Waikanae claimants (for whom the Rev. Riwai te Ahu acts as Secretary) ought to have come forward. They admit that they were aware of the negociation at the time when the first instalment was paid in November, 1859.” On the contrary, there was very good reason to believe in the existence of valid claims page 25 at Waikanae. It was notorious that people closely connected with the Waitara were still at Waikanae. At a distance of 200 miles, they received no notice at all from the Commissioner of his proceedings. They hear of them for the first time, when the inquiry was concluded, and the first instalment paid. This mode of dealing with absent owners is now justified: a Native Minister regards it as sufficient. If this be sufficient, what can be insufficient? Do we shew our superiority and our civilization by this contemptuous disregard of common justice?
I have asserted that the persons invited to the Kohimarama Conference were, with few exceptions, such as were known to be friendly to the Government. When Mr. Dillon Bell urged in the House of Representatives (August 17, 1860), the necessity of carefully considering the nature and constitution of the Conference proposed for 1861, he said that the Conference just held could not be regarded as of a representative character, for only those chiefs had been invited who were known to be friendly. No member questioned that statement. Mr. Richmond said it would be the object of the Government to give to the next Conference as much of a representative character as possible. Though I cite Mr. Bell as asserting the same thing, my knowledge of the fact is derived from independent sources.
Here is the main proposition on which Mr. Richmond relies: “In law, as well as in fact, their territorial rights and obligations are not subject to the interpretation of our Courts. These stand upon treaty, of which the Crown itself is rightfully the sole interpreter.” The practical consequence is drawn in Par. 121: “If the Governor had jurisdiction, he was justified in asserting it in the only practicable mode, viz. by force; in other words, the Governor being of right sole judge of questions respecting Native Territorial rights, was justified in enforcing his jurisdiction in the only practicable mode, viz. by military occupation.”
I have argued that the people of the Waitara, being subjects of the Crown, have not been dealt with as subjects of the Crown. Mr. Richmond answers by saying, they are not subjects of the Crown: they have had all they are entitled to.
The fallacy of Mr. Richmond's argument is obvious. A treaty page 26 in the ordinary sense is a compact between two independent nations, independent before the Treaty was made, and independent after it was made. Such a Treaty is not within the jurisdiction of the Courts of either nation. For an independent nation cannot be bound by the decision of the Courts of another nation. Disputes therefore between independent nations, respecting the meaning of a Treaty, must be decided by force or arbitration. Of late even Sovereign powers have inclined to the latter mode. But the Treaty of Waitangi is of a different kind. The parties thereto were independent before, but not after. It is an express article of the Treaty that one party shall thereby become subject to the other; that the Maories shall become subject to the Queen, and shall receive the protection due to subjects. “Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection, and imparts to them all the rights and privileges of British subjects.”
It may not be casy to find an exact counterpart to the Treaty of Waitangi; but there is a considerable analogy between it and the Charters and other instruments, by which Princes at various times have granted rights and franchises to their people. Whether the rights of the subject have been, as in Europe for the most part, doled out by Charters wrung from unwilling hands, or given freely and at once, as in this case, makes no difference as to the nature and effect of the compact; the only difference is one of degree, and not of kind. Now in such cases it has not been left to the Charter: but the franchises of the people have been expounded and maintained by tribunals independent of the Prince.
It is not meant that the whole complex body of English law was at once to be applied to the natives; but it is meant, that the plain and fundamental principles of English law became applicable at once: that the natives became at once entitled to the essential rights of British subjects. Amongst those rights surely are the following:—that life shall not be taken without a fair trial; that land shall not be taken without a fair trial. “The rights and privileges of British subjects” must mean at any rate the opposite to despotism. The proceedings of the Government at Waitara were pure despotism. Mr. Richmond page 27 has entirely overlooked the consequences of his theory: namely, that if the Treaty of Waitangi be (as his argument assumes it to be) a Treaty in the ordinary sense, then the right of interpreting and enforcing the Treaty must belong, not to one party, but to both equally; that the natives are at liberty to resort to force in support of their view, as much as the Governor in support of his; and that they cannot be charged with rebellion if they do so.
However little the theoretical value of Mr. Richmond's doctrine may be, it is a significant and remarkable fact that such a doctrine is put forth. It is remarkable as bearing on the position, which I have maintained, that the natives at the Waitara, being British subjects, have not been treated as British subjects. Had it been possible to shew that they have been treated as British subjects, Mr. Richmond would hardly have had recourse to a doctrine which denies them to be British subjects at all, which repudiates the assurances given by word and deed in a vast variety of ways during twenty years, and which puts the natives in the same position in which they would have stood had the Treaty never been made. It should be noticed also, what that is which is now clothed with the name and dignity of “the Crown.” “The Crown itself (says Mr. Richmond) is the sole interpreter of the Treaty.” (Par. 98.) It might be inferred then to be the duty of the Governor to provide for the Crown the means of interpreting, to ascertain all the facts, to submit them to the Home Government, and to act upon their decision. But Mr. Richmond requires nothing of the kind. In Par. 121 he applies the general principle to the particular case of the Waitara, and attempts thereby to justify the proceedings of the Government in this particular question. This enables us to understand what Mr. Richmond means, when he says that the Crown is the sole interpreter of the treaty, The Crown then, in Mr. Richmond's sense, does not mean the Queen or the Government of England. They had never authorized, they did not understand, they had no means of understanding, what the Colonial Government was doing at the Waitara. That which Mr. Richmond calls by the name of “the Crown,” is, in fact, the Governor of the Colony, acting in a matter vitally concerning page 28 the interests of the Natives and the honour of the Crown, without any special authority or instruction from the Crown, with the concurrence, and on the advice of persons who represent neither the Natives nor the Crown. Let us reduce the general proposition a little further. The Governor, judging in this particular case, is simply and in fact Mr. Parris. The largeness of the general proposition narrows itself down practically to these dimensions. The majesty of the Royal word and the largeness of the national undertaking issue in the decision of an Assistant Land Purchase Commissioner.
In May, 1857, the present Ministers recorded their opinion on the policy to be pursued in native matters: they said, “As to the ultimate end to which the British Government in these islands is bound to shape its native policy, there can be no difference of opinion. Successive Governors have promised, in the name of the British Crown, that the Colonists and the Maories should form but one people, under one equal law, and no effort must be spared to redeem this pledge.” (T. Q. p. 100.) In December, 1860, a theory is boldly put forward by one of those ministers, which, if England were capable of adopting it, would render the fulfilment of those promises absolutely and for ever impossible; a theory according to which the native population must submit to be aliens on their own soil; to bear the pressure of our dominion, but not receive the protection of the law or the privileges of English subjects. Thus, while professing to aim at raising and preserving this race, and bringing them into a peaceful union with ourselves, we uphold and prescribe a course of action which must provoke them to the most determined resistance to our authority, and can only end in the failure of our undertaking, in discredit to ourselves, and in ruin to them.