Other formats

    TEI XML file   ePub eBook file  


    mail icontwitter iconBlogspot iconrss icon

The Pamphlet Collection of Sir Robert Stout: Rare Volume

Section II.—Principles

page 20

Section II.—Principles.

It will be necessary now to pass from facts to the consideration of the far more difficult questions concerning principles; and we may enquire,

I. First, Whether the Governor acted rightly in his mode of instituting an enquiry concerning the rights of the respective claimants in this question of property.

II. Secondly, Whether those, to whom he committed the enquiry, decided on legal and equitable grounds.

I. First, it is perfectly clear, that a Governor sent out from this country, whose whole term of office seldom if ever exceeds six years, cannot of his own knowledge be a competent judge of all the intricacies of native customs and rights. The most experienced of the settlers, those best skilled in the Maori traditions, acknowledge that the difficulties are great. It cannot be doubted then that, in order to form a sound judgment on native matters, a Governor needs able counsellors.

The first question then to be considered is this. Did Col. Browne act wisely in taking counsel with his responsible ministers1? He was placed in a position, in which

1 Strong testimony is borne by Mr Stafford, the Colonial Secretary, to the Governor's industry in making himself acquainted with native questions. "One of his Excellency's first acts on his arrival was to address letters to men of all professions inviting information on native questions...This correspondence was maintained to the present day, and occupied great part of the Governor's time. It was most incorrect to suppose that His Excellency relied on the Native Department only for his opinion on native matters, or even for his knowledge of facts. He did not do so, though he very properly consulted them." New Zealander, Aug. 11, p. 6, col. 3.

page 21 none of his predecessors could have been placed. Responsible government was not in existence before. Sir George Grey delayed to introduce it, but left it a legacy to his successor1. It was not inaugurated till Sir George Grey left the Colony, and it first saw the light under General Wynyard, who acted as provisional Governor during the interval which elapsed between Sir George Grey's departure and Col. Browne's arrival in New Zealand. The question is, no doubt, one of difficulty. The responsible ministers are responsible to the Colonial Parliament. That Parliament represents the settlers, not the natives. The rights of natives may not always be respected by settlers. Accordingly Col. Browne felt it his duty, when first negotiating with his ministers as to their respective powers, whilst yielding the entire management of the affairs of the colonists to the ministers, to reserve to himself, as representing the Home Government, the right of dealing with native affairs. This he did, with some little difficulty as regarded the Colonial Ministers and Parliament, but with full approbation of Her Majesty's Ministers in England, for the sake of protecting the natives from encroachments on the part of the colonists.

The position of the ministers then as regards the natives was this. They could not enforce their counsels on the Governor. In Colonial affairs indeed he was bound to take their advice, for they only were responsible to the Colonial Parliament. But in native affairs he was independent of their controul, for he only was responsible to the Government at home. Yet, even in native affairs, the ministers were not only privileged, but bound, to give him their best advice, though he might refuse it if he chose.

Moreover, if war was imminent, and if any part of the burden of war was to be borne by the colony, it became necessary for the Governor to consult the minis-

1 New Zealander, Aug. 15, p. 6, col. 2.

page 22 ters. If they approved the Governor's policy, they would assist him in the expenditure, and go to Parliament for indemnity. But, if they disapproved of his proceedings, of course, both they and the Parliament would refuse to tax the colony for the maintenance of the war.

But once more, if the Governor did not consult his ministers, he had no one else to consult. Seeing how divided are the interests of the natives, and the colonists, the present Governor, with the concurrence of the Bishop of New Zealand, Sir W. Martin, the late Chief Justice, and Mr Swainson, late Attorney-General, proposed to the Colonial Office, that a special council should be formed, composed of persons of independent position and disinterested character, to advise with the Governor on all matters of native interest. The Duke of Newcastle approved of the proposal, and brought it before Parliament; and it seems much to be regretted, that Parliament should have rejected it. At present, the Governor has no advisers on such questions at all, or he is thrown upon the advice of his responsible ministers, who, as representing the colonists, may not be wholly impartial when the respective interests of colonists and natives are at stake. Still, in the present instance, if the Governor had refused the counsel of his ministers, in a matter of great delicacy and difficulty, with the honour of Her Majesty's Government and the peace of the whole colony at stake, he would surely have incurred the censure of most men, very likely of those very men who now censure him for not acting alone1.

1 "By the arrangement of 1856 ministers were placed in the special position as to native affairs, that, while they could offer advice with respect to them, that advice might be rejected by the Governor, subject to the ultimate decision of the Secretary of State for the Colonies. It was most incorrect to suppose that ministers were debarred from advising the Governor on native matters, on the contrary, they were not only not so debarred from advising His Excellency, but they were required to advise, both as responsible ministers, and as members of the Executive Council of New Zealand."—Speech of Mr Stafford, Colonial Secretary (i.e. Prime Minister of New Zealand), Aug. 7, 1860, reported in the New Zealander, Aug. 11, p. 6, col. 2. See also the statement of Mr Sewell (a former Prime Minister) to the same effect. N. Zealander, Aug. 15, p. 8, col. 1. Tho counsel actually given to the Governor by the Executive Council is recorded, E, No. 3, p. 11.

page 23

The second question is, Did the Governor do rightly in submitting the question of title to Mr McLean, chief Land Commissioner?

It has been already seen, in the case of Mr Spain, that the chief Land Commissioner bears her Majesty's commission "to investigate and determine titles and claims to land in New Zealand." All former disputes about the purchase of land had been referred to him. Mr McLean is represented on all sides as a man of singular knowledge and experience in questions of native title and rights. Within the last twenty years he has investigated the title to, and conducted the negotiations for the sale of, from 20,000,000 to 25,000,000 of acres, and in no important respect has the validity of those purchases ever been disputed1. Mr Sewell, an ex-prime minister, states his own conclusion thus: "The claims of the native sellers had been investigated in the usual way, through the proper officers of the Government, and there seemed no ground for impugning their proceedings. They had decided the question of title as was always done in similar cases, and he (Mr Sewell) was satisfied to accept their authority. He dismissed the attempt to cast a slur upon the Commissioners. Something had been said as to the Native Land Purchase Commissioner

1 Papers, E, No. 4, p. 24. Mr Dillon Bell, a member of the House of Representatives, and a very high authority on native affairs says: "It is all very well to sneer at Mr McLean, and to call him ignorant on native matters. I tell you he has never been equalled, and never will be equalled for the authority he possesses among the chiefs of every tribe in the islands, and for the confidence he has inspired among them during a period in which we have bought 30,000,000 of acres."—Debate, Aug. 3, N. Zealander, Aug. 8, p. 7, cols. 6, 7. See also Mr Domett's Speech to the same effect, N. Zealander, Aug. 11, p. 5, col. 6.

page 24 not being a competent tribunal to try such a question. All he would say was, that from the earliest period of the Colony tribunals or courts of this nature had been the ordinary modes of investigating and determining questions of the kind. He reminded the House that these officers were distinctly recognized by the statute law of the Colony. The Native Preserves Acts, 1856, treated them as persons authorized finally to hear and determine those cases. As to any supposed jurisdiction of the Supreme Court, that was out of the question. It was clear that the Supreme Court had no jurisdiction over questions of native title1."
Surely then, when the Governor had committed the dicision of claims to the chief Land Commissioner, when he, with the aid of his deputy Commissioner, had for

1 Speech of Mr Sewell in House of Representatives, Aug. 7, 1860, N. Zealander, Aug. 11, p. 7, col. 2.—The Bishop of N. Zealand, the Bp. of Wellington, and Archdeacon Hadfield have all complained that a more competent tribunal did not sit on this question. The Ministers replied, first, the constant custom had always been to refer these questions to the tribunal of the Land Commissioner; 2ndly, that the natives could never have been induced to submit their claims to a more regular court, as they would have accepted its decision? if favourable to them, and rejected them, if adverse; 3rdly, that from the habits of the natives, the truth was more easily elicited by such an officer as a Land Commissioner, than by any formal procedure of a court of law; 4thly, that the flexible practice of the Land Purchase Commission admits of concession to the natives, not justifiable on any ground of strict principle, and so is far more beneficial to the interest of the natives than the practice of the Court of Law could be. See Papers, E, No. 1, B, p. 3. Still the Ministers observe that the Bishop's anxiety to see a tribunal established for judicial investigation of questions affecting native titles cannot exceed that of the Governor and his Ministers: but all persons at all acquainted with the affairs of New Zealand are aware, that the difficulty in the way of the establishment of such a tribunal lies with the natives, and that a chief reason why the Royal Assent was refused to the "Native Territorial Rights Bill," in 1858, was the likelihood that awards would not be acquiesced in by the contracting parties (ibid). The Chief Justice complains that the English Government has left the natives without the power of having their grievances redressed in any court. (N. Zealander, Sept. 5, 1860, p. 6.)

page 25 eight or nine months patiently investigated the question, when he had decided that the title of Teira and his associates was clear, that King's title Avas worthless, and that his interference was that of a chief determined to oppose her Majesty's authority as head of the Land-league; surely it must be admitted that the Governor was justified in concluding that King's resistance to the sale was an act of insubordination, not a legitimate defence of his own personal or tribal rights.

II. When we pass from the consideration of the principles, on which the Governor acted, to that of those on which the Commissioner judged, we at once embark in a most perplexing enquiry. Questions of native title are confessedly difficult; and their difficulty is very greatly increased by the tendency of the European mind to judge on European principles. All notions of property among savages are lax and vague: among Englishmen they are singularly exact. An inexperienced Englishman is therefore peculiarly unfitted to deal with Maori rights. If, for instance, he learns that individual title, title of an individual proprietor, is seldom, if ever, recognized in New Zealand, he may readily conclude that there is a definite recognition of tribal titles, that the title is vested in a tribe, not in a single owner. If he hears of a chief exercising a power of veto over the sale of lands, he falls back on notions of feudal superiority and seignorial rights. But the truth is, that such definite principles are principles, which have grown up with our European civilization, and that they do not belong to the peculiarly wild condition of society, in which New Zealand was forty years ago. We shall find this illustrated if we proceed with our enquiry.

We have seen, that Teira offered his land to the Governor, claiming it as belonging to him and to others joined with him in the proposition of sale. We have seen, that Wiremu Kingi declared that he would not page 26 allow Teira to sell. Now there are four distinct claims, on any or all of which he may have grounded his opposition to the sale.

1. He may have claimed to have a proprietary right to part of the property. 2. He may have asserted a tribal claim, and therefore a right as a chief of the tribe to veto the sale. .3. He may have asserted mana or superior authority, as a paramount chief, and so a right of veto. 4. He may have acted, as a leader of the great Land-league, the object of which is to prohibit all future sale of Maori lands, even by the legitimate and undoubted owners.

1. Did Wiremu Kingi claim a proprietary right in the 600 acres offered for sale, and if so was his claim good?

At the time that Teira first offered his land for sale, the Governor having accepted his offer, conditionally on his making good his title, King did not deny the title, but said, "Governor, there is no land for you; Waitara is in my hands, I will not give it up; I will not, I will not, I will not;" and with an air of defiance withdrew. No one present understood this as a proprietary claim1, but as a threat, that he would use his power as an influential chief to prevent the sale. After this offer of the land for sale, Teira associated with W. King and his people as before. He frequently called them together and entreated them to give up their foolish opposition; assuring them that the small piece of land which he and his supporters had offered to Government was but a fraction of that to which they had claims, and that if they were opposed they should offer more. The opposition endeavoured to gain him over by kind words and acts, but in vain. After an absence of Teira from his home, he found that his

1 It is specially to be observed, that before this speech of W. King's other proprietary claims were urged and immediately attended to, so that King must have known that his would not be repudiated, if he had any to urge.

page 27 opponents had put some fencing on his land, which he cut down. They thereupon threatened to burn a canoe of his; and he in reply said, that, if they did so, he would burn down all the pas which they had built there, as they very well knew they were on his land. Accordingly the canoe was untouched, and nothing further occurred. In Sept. 1859 Mr Parris, the District Land Commissioner, strove to induce King and his party to meet Teira and discuss their claims. To this King would never consent, and Mr Parris was forced to obtain all the information he could from the neighbours, which entirely corroborated the statements of the selling party. It was stated that the land was occupied by the people of Tamati Raru1 and Rawiri Raupongo (the sellers), before the Ngatiawi migra-

1 The following is one of the strangest and most instructive parts of this controversy. Archd. Hadfield writes to the Duke of Newcastle:

"With regard to Teira's right to sell, which is so positively asserted, and on the supposed validity of which a war has been commenced at Taranaki, can I expect to be believed in England, when I assert, as I do unequivocally, that Teira's father, Tamati Raru, through whom alone the son could lay claim to any land, as inherited by him from his ancestors, is still alive and opposed to its alienation? ....... he refused to sell, and co-operated with Wm. King up to the very commencement of hostilities. I feel that nothing I could add to this fact, would tend to strengthen the assertion I make, that the claim set up on behalf of Teira to alienate the whole block of land is altogether untenable."

Now compare with this "unequivocal" and triumphant assertion, not only the fact that Tamati's name is affixed to letters of Teira's, urging the Governor to complete the purchase (see E, No. 7, pp. 9, 10), but also with the following uncontradictcd statement of the Colonial Prime Minister: "There had been rumours that Teira's father, Tamati Raru, was fighting on King's side; the fact being that Tamati Raru had assisted to cut the boundary lines for the surveyor of the very block in dispute. Tamati Ram's only objection to the proceedings of the government was, that they had not at once given him a gun to enable him to fight on the government side. They had received letters from him, not declaring that the land should not be sold, not desiring that the survey should be stopped, or the military occupation of the land be abandoned, but asking for a gun to fight for them."—Speech of Mr Stafford, Aug. 7, N. Zealander, Aug. 11, p. 6, col. 3.

page 28 tion to Port Nicholson, &c.; that they had their pas on this land, on the south of the river, whilst W. King and his people lived on the north of the river; but that on returning from Cook's Straits in 1848, King and his people asked permission of Teira and his father to be allowed to build their pas on the south side, as safer than the north in case of an invasion from the Waikato; that, however, none of the land sold by Teira and his party was ever cultivated by King's people1. At length, in November, 1859, after it had been settled that the land should be bought, Mr Parris gave W. King notice of the determination; and he came accordingly with about thirty followers to oppose it. King having been persuaded to meet Teira's party and discuss the question, the following dialogue took place between Mr Parris and King:

Q. Does the land belong to Teira and party?

A. Yes, the land is theirs; but I will not let them sell it.

Q. Why will you oppose their selling what is their own?

A. Because I do not wish that the land should be disturbed; though they have floated it, I will not let it go to sea.

Q. Shew me the justice of your opposition.

A. It is enough, Parris. Their bellies are full with the sight of the money you have promised them; but do not you give it to them. If you do, I will not let you take the land, but will take it myself and cultivate it6.

It is said by Archdeacon Hadfield and his friends, that when King said, "Yes, the land is theirs," he only meant, according to Maori mode of speech, "It is partly theirs."

1 Papers, E, No. 3, A, pp. 3, 4. Mr McLean says in evidence, that he had it from King' s own brother that King's cultivations were wholly or almost wholly on the North side of the river. E, No. 4, p. 15. And Archdeacon Hadfield admits that he believes this to be true. E, No. 4, p. 12, near foot of page.

6 E, No. 3, p. 21.

page 29

No doubt, Maori language, like Maori ideas of property, is vague and indefinite, and it may not be right to press it too strictly1. But at all events, King made no proprietary claim for himself on any of these occasions. He threatened to veto the sale, but never set up a personal claim to the property. He wrote more than one letter to the Governor, but, as will be seen presently, these letters did not exhibit a personal claim, but at most a tribal claim; and one appears distinctly to have been written by King not as a claimant, but as head of the Land-league.

Archdeacon Hadfield has stated in evidence that a block of 600 acres could not be sold without at least 100

1 Yet the following comment by the Chief Justice is worth considering : "I am aware that I shall be told that these words in Maori have a profound and hidden meaning, not intelligible to the unlearned. And, when we have applied our simple faculties to apparently plain expressions, some recondite Maori scholar will tell us, 'Oh ! if you knew the habits of thought of the native mind, you would discover a meaning very different from the plain meaning of the words themselves. To be sure, these scholars themselves may differ upon their interpretation. But His Excellency is compelled to act upon the light offered to his understanding. Was it too much to expect, that Wiremu Kingi, lofty and proud chief he may be, should have condescended, during the interval between March 1859 and March 1860, to state the meaning of his conduct? But no! after twelvemonths of sulky defiance, he treated the interview proffered by her Majesty's representative with scorn. Mr Parris, Mr Kogan, and Mr Whitely (a Wesleyan missionary), were bandied from place to place, and when at last Mr Whitely found and prevailed on the proud chief to admit a conference with Mr Pams, the utmost of his condescension was that he would send his decision to H. E. next day. When to the above facts I add this one, viz. the ready supply of powder and ball-cartridge in the hands of the natives round Taranaki, I cannot resist the conclusion, that the enemy had long been preparing for the issue of peace or war On the present occasion, it is enough to say, that if Wiremu Kingi had any title, tribal or otherwise, ho owes it to himself that his title was not recognized; seeing that the purchase from Teira was not hastily concluded, and that while H. E.'s conduct was marked by a patient and thoughtful reserve, he met only with defiance and contempt."—Speech of Chief Justice in Legislative Council, N. Zealander, Sept. 5, p. 6.

page 30 persons having claims1, and that he himself knew of some eighty claimants. The Chief Commissioner, in his evidence, says, "If I were to say that no other claims were adduced, I should be wrong; but I mean no substantial claims, no claims that could be recognised by the Government, or which would be regarded by the natives as valid. Certainly one man told me that his grandfather had once lived a short time on the land, and that therefore he expected compensation; another told me that in one of their fights he was wounded and suffered great inconvenience there, and therefore thought it right that he should have some consideration now that the land was to be sold. By compensating this class of claimants, the real owners would be deprived of what they were fairly entitled to2." Mr McLean goes on to state that, after investigation made at Taranaki and public notice given inviting all claimants to come forward, he himself went over to Queen Charlotte's Sound, where the principal claimants had settled, and after a careful enquiry into rival claims, the whole of the natives there agreed to sell their interest in the land. "1 knew," he says, "that these were the real claimants, and I found a great deal of unanimity about the sale of the land3." Mr McLean afterwards went to Wellington, and made similar arrangements there4. After the sale of the land and the beginning of hostilities, in June, 1860, letters were written by a native from Otaki and from other natives at Waikanae denying the validity of Teira's title, and asserting that King had undoubted claims to portions of the 600 acres; and Archdeacon Hadfield gives the highest character for veracity to the writer of the letter from Otaki5. These letters, however, do not

1 E, No. 4, p. 3.

2 E, No. 4, p. 18.

3 Ibid.

4 Ibid. One of Archdeacon Hadfield's positive statements, in his Letter to the Duke of Newcastle (p. 18), is, "that the Chief Commissioner, Mr McLean, took no part in the investigation, but that it was wholly committed to a deputy, Mr Parris."

5 E, No. 4, pp. 6, 7, 9,

page 31 appear to invalidate the statements of the Commissioners, viz. that to their knowledge King never made any proprietary claim to the land1. It deserves too to be carefully remembered, that constant and repeated invitations were given to King and to every other claimant to come forward and state their claims; and that even when the boundaries of the purchased block were marked off", the inland boundary was left uncut, in order that any valid claim might hereafter be substantiated, and that then these lands might be reserved.

2. Tribal Title.

It is, however, on the whole apparent, that both W. King and his supporters ground his claim rather on a tribal than on a personal proprietary right. And this, unhappily, is a question of peculiar obscurity. There can be no doubt but that the Maories generally hold their lands by a common, rather than by an individual title, and that, though individuals have a personal right to their own cultivations, yet they have not in general a right to alienate without the concurrence of their tribe or of a portion of their tribe. Moreover, where any particular chief is the acknowledged head of a body, to whom the land belongs in common, he would have a right to veto the sale of any portion of such common property.

1 E, No. 4, p. 20. E, No. 3, A, p. 3. These letters appear to be the strongest evidence alleged against the care and diligence of the Commissioner in his investigations. The letters deny that enquiries were made of the writers, who had themselves claims, and though they confess to having heard of the discussion about the sale, they say, that knowing that King was moving in the matter, they trusted to him as their chief to oppose it, and to the justice of Government not to enforce the purchase, when the title was disputed. Mr McLean's general explanation is, that he made constant appeals to claimants to come forward, and that to Otaki especially he had sent several copies of the Governor's speech, inviting claims, but that none were made. The particular claim since made in these letters he denies to be just. E, No. 4, p. 21.

page 32

It seems very much as if King had asserted his rights in this way. His statement at first, that "Waitara was in his hand," may have meant that he was the chief of the tribe, or only that his power and influence (mana) was such that he could prevent its sale. In a letter written to the Governor, April 25, 1859, he says, "Friend, salutation to you. Your letter has reached me about To Teira's and Ratimana's thoughts. I will not agree to our bedroom being sold (I mean Waitara here), for this bed belongs to the whole of us. Do not you be in haste to give the money. Do you hearken to my word. If you give the money secretly, you will get no land for it. You may insist, but I will never agree to it. Do not suppose that this is nonsense on my part: no, it is true; for it is a n old word. I have no new proposal to make either as regards selling or anything else. All I have to say to you, O Governor, is, that none of this land shall be given to you, never, never, not till I die. I have heard it said that I am to be imprisoned because of this land. I am very sorry because of this word. Why is it? You should remember that Maories and Pakehas are living quietly on their pieces of land; and therefore do not you disturb them. Do not say also that there is no one so bad as myself. This is another word to you, O Governor The land will never, never be given to you, not till I die. Do not be anxious for men's thoughts. This is all I have to say to you. I am your loving friend, William King1.

The words, "I will not agree to our bedroom being sold; for this bed belongs to the whole of us," is the one distinct public assertion of a tribal claim. It is true, that in July 1859 King wrote two letters to Archdeacon Hadfield, in which he more plainly asserted the same; and earnestly besought Mr Hadfield to bring his case before the Governor2. The Archdeacon contented himself

1 Quoted at length by Mr Forsaith, Aug. 3, 1860. New Zealander, Aug. 8, p. 6, col. 2.

2 Ibid., Aug. 8, p. 3, col. 2.

page 33 with writing to King, that "his forcible ejection from this land was utterly impossible1." Yet two months later, in Sept. 1859, he writes to the Governor, that all things are quiet in his part of New Zealand, and that he will "not fail to communicate to him anything which he thinks it desirable that he should know2." Again, in December 1859 King wrote a pathetic letter to the Archdeacon, in which the following passage occurs: "They say, that to Te Teira only belongs this piece of land. No ! it belongs to us all, to the orphan and the widow belongs that piece of land. If the Governor goes to where you are, you speak a word to him, and if he does not listen, it will be well, for I have often heard of the talk relative to death3." Now here is by far the strongest assertion ever made of a tribal claim. It is King's only distinct denial of Teira's title. There is entreaty that the Governor may be spoken to. Yet none of these letters were ever shewn to the Governor. They were never produced till the meeting of the Houses of Assembly to discuss the equity and policy of the war. They were then put into the hands of the leading opponents to the Government, in order to prove that definite claims had been made by King on behalf of himself and his whole tribe, in order to shew that the Commissioner had decided wrongly when he decided against King, in order to convict the Governor of injustice in not yielding to King's pretensions and giving up the purchase of the ground. Is it wonderful that, whilst in the House of Representatives many condemned the conduct of the Archdeacon, and even charged him with being responsible for all the horrors of the war, not one of his supporters could maintain that he did right4?

1 New Zealander, Aug. 11, p. 6, col. 6.

2 Ibid. p. 6, col. 4.

3 Ibid. Aug. 8, p. 3, col. 2.

4 See admissions to this effect by Mr Forsaith in the House of Representatives, New Zealander, Aug. 8, p. 7, col. 4; and by Mr Swainson, in the Legislative Council, New Zealand, Sept. 5. Considering the high esteem in which the Governor held Archdeacon Hadfield shewn publicly by his recommending him to the Bishopric of Wellington, and the influence which the Archdeacon had over Wiremu Kingi, his disciple in the Christian faith, if, instead of confirming King in his resistance to authority by saying it was impossible that he should be deprived of his undoubted rights, and at the same time maintaining a dogged silence to the Governor, he had come forward, as both parties had requested him, and had acted the part of a mediator, is it not in the highest degree probable that much might have been done to prevent the outbreak? He could not but have known of the danger of that outbreak from King's own letters; and the Governor had written to ask for information from him. It is but fair to give his own explanation of his conduct. The reason which he assigns for not informing the Governor is, that he had had an assurance from him that he would never use force to obtain possession of disputed lands, even if his ministers urged him to do so, that accordingly he never entertained a suspicion that King and his people would be ejected from land, "to which they had an undoubted title;" that he therefore thought it more likely to uphold the dignity of the Governor to write only to King, saying that his forcible ejection from his land was impossible. Then, having reproached the Governor for not acting without consultation with his ministers, he continues, "But when I am told that a grave responsibility rests on me, I deny it: I repudiate the charge. The Government are responsible for the direction of public affairs. They have undertaken it. I have always supplied to the best of my ability any information that has been asked of me. I cannot be charged with having ever failed to reply by return of post to any letter addressed to me by any official person in this colony during the twenty years of its existence. But I will not lay myself open to the charge of 'wishing to intrude into the Governor's privy chamber.' Had the Government desired information of me, they very well knew they could have obtained it" (New Zealander, Aug. 11, p. 5, col. 1).

page 34

In considering this question of tribal title, we find ourselves in the midst of a conflict of statements. Archdeacon Hadfield, an unquestionably high authority on native affairs, Mr Forsaith, Dr Feathers tone, and those who echo the Archdeacon's opinions in the House of Representatives, say, that lands, whether inherited from ancestors or obtained by conquest, are the property of a tribe, lands actually cultivated by individuals are not absolutely their own, but they are their own as against all individual claimants, not as against the tribe. An page 35 absolute title does not exist: that is, no individual could sell without the consent of the tribe. Moreover, the chief is said to be the representative, protector and guardian of this tribal right; and hence no land can be alienated without the chiefs consent. Moreover, the same persons say, that W. King is the undoubted head of the Ngatiawa tribe. Lastly, it is said that Teira was not a chief at all, but a mere tutua, a freeman of the tribe, a simple proprietor1.

The extreme simplicity of this statement commends it to our acceptance. But, if all were so clear, and native usage so unquestionable, it is difficult to know how it should happen, that the whole body of the natives, before whom the subject has been fully brought, should not at once conclude for King and against Teira. Yet it is a fact which cannot be doubted, that the natives both of the Ngatiawa and of other tribes are divided in their sentiments. It is stated by a member of the House of Representatives that he attended the great Waikato2 meeting in May 1860, where the question was mooted, whether aid should be sent to King or not. Many old chiefs were present, many speeches made, but not one of the speakers ventured to assert that King had, on his own account, any right to interfere to prevent the sale of Teira's land. Doubts were expressed by all who touched the point. William Thompson, the great Kingmaker said, "William Kang says the land is his, Teira says it is his. Let us find out the owner. Do not make haste, lest we mistake. I do not condemn the Governor, for I am not informed." Another speaker recommended two deputations, one to the Governor, another to King, and said, "If the land be Teira's all will be easy." It

1 Dr Featherstone's Speech, Aug. 7, reported New Zealander, Aug. 15, p. 8, col. 3 seq.; Archdeacon Hadfield's Evidence. Papers, E, No. 4, pp. 2, 3.

2 The Waikato is the tribe in which the great movement for making a native king originated, and from them W. King sought aid and countenance in his contest with Government.

page 36 is said by the same member, that all the support received by King from other tribes was given from no belief in his right as regards the land, but because they regarded him as engaged in the Land-league policy1. It is also quite certain, that the great meeting of chiefs assembled in conference at Auckland in August last decided by an overwhelming majority against King's claim. All this shakes our faith in the extreme simplicity of the case, as stated by Archdeacon Hadfield and those who side with him.
It seems pretty generally admitted, that two of the highest authorities in native affairs are Archdeacon Hadfield, who has been for twenty-two years a missionary among the Maori, most active and most intelligent, and Mr McLean, the chief Commissioner, who for nearly twenty years has investigated the titles and regulated the conditions of sale in every transaction between natives and Europeans. The former has great knowledge from his general intercourse with the natives. The whole time and attention of the latter has been devoted to the one subject of settling claims to land. He is represented as having special knowledge of titles in Taranaki, from long experience and much intercourse there. It is remarkable how his evidence given before the House directly contradicts Archdeacon Hadfield's in every particular2. On being asked to "describe tribal right in

1 Speech of Mr Williamson, New Zealander, Aug. 11, 1860, p. 7, col. 5. A report of the meeting of the chiefs at Waikato is given at length, New Zealander, June 27, 1860.

2 It was said in the Legislative Council, that "the Archdeacon's statements were vague, loose, and indefinite, full of confessions of ignorance on some points, and on others, where he did make a distinct assertion on matters of fact, he fell into what had since been proved to be the grossest blunders. On the other hand, Mr McLean's testimony was precise, consistent, and definite. His statements were distinct and unmistakeable. They were open to be impugned, but as yet no one had ventured to impugn them." Mr Tancred's Speech, New Zealander, Sept. 3, p. 5, col. 5. This judgment is that of one opposed to the Archdeacon, and must be taken with allowance; but what may be called the cross examination of the Archdeacon (see E, No. 4, pp. 12—14) does appear very much to warrant the language here quoted.

page 37 regard to the transfer of land," he says, "it varies much in different parts of the country. The custom which prevails in one part, does not in another. What is the general rule? There are very wide exceptions. Is the rule or exception wider? The exception is the wider. When a hapu (i.e. a subdivision of a tribe, or family) alienates, who represents it, and is the consent of all its members necessary? In some tribes the different hapus must be consulted, in others the chiefs; much depends on the personal character of the latter. The various hapus or families which compose a tribe most frequently have the right of disposal, but not always; the custom varies. * * * * * The natives have no fixed rules, the custom varies in different districts. What are the rules of alienation in the Ngatiawa tribe? Iu the Ngatiawa a family of three or four people have been regarded as empowered to dispose of its common property1." Mr McLean, moreover, distinctly asserts that Teira is a chief, not merely a tutua2. He denies King's right as a chief to interfere, ascribing his authority simply to his ambition and turbulence as a land-leaguer3. He says that the land entirely belonged to two hapus of the Ngatiawa, the head of which is not King, but Ropoama, and that Ropoama was altogether consenting to the sale4.

1 E, No. 4, pp. 22, 23.

2 Ib. p. 24.

3 Ib. pp. 19, 20.

4 Ib. pp. 18, 20, 22. Archdeacon Hadfield differs from Mr McLean here. He says, Te Patukakariki, not Ropoama, is the head of the two hapus, to which King belongs. E, No. 4, p. 3. Mr McLean says he knows that Patukakariki is not the head of these hapus, though he is a chief of some importance. He distinctly asserts Ropoama to be the head. He thinks Patukakariki may have claims to part of the disputed block, but, though a letter addressed to him, to W. King and to all the people of Waitara, was written inviting them to come forward and prove their claim if they had any, he has never made such claims, nor opposed Te Teira's offer. E, No. 4, pp. 20, 22, 23.

page 38

Another most important fact elicited from Mr McLean's evidence is that, whereas this present purchase is only one of several, which have been effected in the same neighbourhood, Taranaki, all the preceding purchases have been effected on the same principle as this, viz. that of acquiring the land from the different clans and subdivisions of those clans, which came to offer them39. Never has any similar interference by a chief been recognized in Taranaki, either in favour of King or of any one else40. On former occasions, as in the purchase of the piece of land known as "the Bell Block," King asserted a claim, but did not receive any compensation41. It does not appear that any complaints were made in these former sales.

Once more, it is stated in the same evidence, that various changes in the condition of a tribe cause changes in the native tenure of land. In the case of Taranaki, the original tenure was materially changed by the Waikato conquest; the right of the original proprietors became vested in the conquerors. This right, however, the Waikato title, had been extinguished, as Government purchased it from them, though after that the Government readmitted the claims of the individual Ngatiawa proprietors42. Separate proprietary rights were respected, and the rights of the subdivisions, or different hapus of each tribe, have been recognized; but no general tribal rights or right of chieftainship has been acknowledged within the block comprized in Mr Spain's award5. It










page 39 will be borne in mind that the conceding of any native rights within that block was an act of grace on the part of the past and present Governors.

It is a significant fact, that, when it was supposed that a certain Rawiri Raupongo was not a consenting party to the sale (the said Rawiri being withheld by fear from openly joining Teira), one of William King's principal men (named Komene Patumoe) acknowledged to Archdeacon Govett, that if Rawiri Raupongo had been a consenting party to the sale, they could have had nothing to say against it. By which Archdeacon Govett understood him to mean, that the natives generally at the Waitara could not reasonably have opposed it1. Now Rawiri Raupongo is openly one of the sellers, his name is affixed to the agreement. The above admission to Archdeacon Govett looks very much as if King's party was aware that King had no just title, either personal or tribal, to interfere in the sale of the disputed land.

3. Mana.

Some stress was laid in New Zealand, and much has been said in England, on this subject. A notion has prevailed, that mana resembles the right of a feudal superior in the middle ages, a manorial or seignorial authority. According to such a notion of it, King has been supposed to be Teira's feudal superior, and that, when Teira's land was sold, King's rights were violated, because his mana was not respected. Now we have seen something of the passing of the mana over Taranaki by conquest to the Waikatos, and of its being sold by them to the Crown. But to waive this, it was repeatedly stated in the houses of Assembly, in August, during the debates on this subject, and without contradiction or dissent, that mana is simply the right of the strongest. If a chief by warlike prowess or any other means acquires great personal power and influence, that

1 Letter from Archdeacon Govett. Papers E, No. 3, A, p. 3.

page 40 is his mana. The mana does not extend to land only, but to all interests whatever, and in time of war it seems to amount to an absolute dictatorship. Hongi in a former war is said to have exercised it by prohibiting the people from selling the produce of their lands for anything except guns and powder; and that so strictly, that the mission had great difficulty in obtaining provisions1. Mr Bell, a high authority, says, "In former times, before the establishment of British Sovereignty, the power of the chiefs depended on the law of the strong arm. What you call mana was just this, that what a great chief could hold he held, and what he could not hold was taken from him by some one else. Mr Busby, writing in 1837, says, 'To those unacquainted with the status of a New Zealand chief it may appear improbable, that he Mould give up his rank and authority; but in truth the chief has neither rank nor authority, but what every person above the condition of a slave, and indeed most of them, may despise or resist with impunity.' I heard Mr McLean the other day, at the Conference at Kohamarama, ask what other right of mere chieftainship, independent of tribal title, existed anciently, but the right of the strong arm, and there was no dissent, for the assembled chiefs knew that he spoke the truth2." So entirely arbitrary does all pertaining to mana and chieftainship appear to be, that Archdeacon Hadfield tells us, "A man of good descent, even of the best blood in the tribe, may lose all rank in the tribe, and be treated simply as a tutua. The law of primogeniture does not exist in reference to chieftainship. But a chief would not lose his claim to land by becoming a tutua, his title would not be affected by it3."

1 Southern Cross, Sept. 1, 1860.

2 Debate, Aug. 3. New Zealander, Aug. 8, p. 7, col. 5.

3 Evidence, E, No. 4, 13. As regards birth, it is proved by their respective pedigrees, that Teira's is superior to King's, for his descent is strictly in the male line, whilst King's is from the marriage of a female with an unknown adventurer. The pedigrees are given in the Maori Messenger, April, 1860, and in the New Zealander, Aug. 8, p. 5, col. 3.

page 41

It appears, however, that the claim of mana is one on which King's friends in New Zealand lay but little stress. And as it is clearly not of a manorial or feudal character, but simply one of personal power and influence, it can hardly be of that nature that the English law would acknowledge it.

4. Land-league.

It has been constantly maintained by the Chief Commissioner, Mr McLean, and by the supporters of Government, that King's influence, or mana, was really as a great leader of the Land-league. It should be understood that two great movements have been going on among the natives for some years. 1. The Maori-King movement; the object of which is to have a native King to govern the Maories, as the Queen of England and her representative, the Governor of New Zealand, rule over the Europeans. This movement sprang up about A.D. 1854, chiefly among the Waikato tribe, hereditary foes of the Ngatiawa, and William King was not at first connected with it. 2. The Land-league originated in a natural feeling among the natives and their friends, that the constant alienation of property was impoverishing the natives and giving more and more strength to the encroachments of the Europeans; for whereas the Maories parted with their land and so were losers, they speedily spent the purchase-money, and so were not proportionately gainers1. The following

1 It has been singularly stated by the Bishop of Wellington, that the natives have been indisposed to sell their land in consequence of the Governor giving assent to a bill in 1858, forbidding the natives to endow native ministers of religion with their own lands. This, he has "no hesitation in saying," has tended as much as anything to alienate the affections of the natives, and to drive them to join the Maori-King movement.—(Memorial of the Bishop of Wellington and Archdeacon Hadfield to the Duke of Newcastle, P. S. by the Bishop of Wellington. E, No. 1, A, p. 17). The answer by the Governor and his ministers to this serious charge is, that no such act ever passed the Assembly, and so none such could have received the Governor's assent (Ibid. p. 16). The only change during this Governor's term of office has been by the New Zealand Reserves Act, 1856, which gives facilities for the endowment, by natives, of schools and other eleemosynary institutions, and for empowering them to grant sites for churches and burial-grounds (Ibid. p. 18). Every one who knows Bishop Abraham will acquit him of intentional misrepresentation, but these unhesitating charges sent home against a Governor, ought not to be made without fuller investigation of their truth. The higher the station and character of the accuser, the more cautious should he be in his statements.

page 42 account of the origin of the League is given in evidence by Mr McLean:

"This League I first heard of as having commenced at Otaki. The natives of that place assured me that they had very good advice on the subject, and that they had resolved not to dispose of any more land to the Government. This League kept gaining ground for some years, until a general meeting took place in the Ngatiruanui country, where the natives pledged themselves, not only to sell no more land, but to take the life of any one who should attempt to do so. This meeting took place about seven years ago" (i.e. about two years before Colonel Browne's government). " It was also resolved at this meeting of the natives, that they should entirely repossess themselves of land already alienated by them, and drive the European settlers into the sea. The subsequent murders, involving the death of Rawiri, Kotatore, and others, that have taken place at Taranaki, have been the result of that league and confederacy at Manawapo; and there is very little doubt that the settlement of New Plymouth, since the foundation of this Land-league, has been in a very perilous position1."

Now, in Feb. 11, 1859, W. King, who for many years had actively opposed the sale of lands, wrote a letter to the Governor and Mr McLean, which, however, reached Auckland when the Governor was absent, in which he tells

1 E, No. 4, p. 19.

page 43 him that no laud should be sold to the Europeans within certain boundaries. He continues, addressing Mr McLean: "I have therefore written to the Governor and to you to tell you of the Runanga of the new year, which is for withholding the land, because some of the Maories still desire to sell land, which causes the approach of death. It is said I am the cause; but it is not so. It is the men who persist. They have heard, yet they still persist. If you hear of any one desiring to sell land within these boundaries which we have pointed out to you, do not pay attention to it, because that land-selling system is not approved of. This is all1."
On this letter Mr Richmond, the Minister of Native Affairs, makes the following remarks:
"Now the House will observe that Waitaha" (one of the boundaries mentioned in King's letter) "is a small stream just beyond the Bell Block, which is the extreme northward boundary of the English settlement. Waitaha is the Land-league's boundary agreed to at Manawapo. King's is the boundary I have just read. It begins at Waitaha, and runs inland straight along the English line, and he says, 'You shall have nothing beyond Waitaha, nothing between that and Makau.' Now, is this a claim of title? Is this the boundary of a Maori proprietor? Why he includes all the Puketapu country" (i.e. the country of another independent tribe). "Is it not plain that this is over again the same thing: 'The Europeans shall not advance one step. They shall neither have my land, nor that of any one else.' This tyranny is the grievance of Makau, the present head of the Puketapu country. Look at his letter to the Governor in the Maori Messenger of the 30th of April: This is the grievance of Huia, of Nikorima, of Te Teira. This is what has filled Taranaki with strife and bloodshed2. Here in this letter you have the

1 B, No. 3, A, p. 5.

2 Speech, Aug. 3, New Zealander, Aug. 8, p. 5, col. 2. See also Ibid. Aug. 11, p. 5, col. 1, foot of page, concerning origin and boundaries of Land-leaguc.

page 44 Land-league confirmed. King has been gradually consolidating his influence in New Plymouth since his return, till his mana has reached the Waitaha. His right is that negation of right, the strong arm. He is defying Governor Browne as he defied Governor Grey1."

What makes it more apparent that King's was really a political move, rather than a personal claim of right, is, that immediately after Teira's offer of land to the Governor, King fell back upon the support of the Waikato, invoking the co-operation of the Maori king; and a letter was sent to the Maori king offering the land from the European border to him2. Moreover, before any movement of our troops to Waitara, King had prepared two strongly fortified pas, well stored with provisions, and had sent letters to all parts of the country requesting support3.

King's Character.

It is strongly urged by Archdeacon Hadfield and his friends, that W. King is a chief who has always been friendly to the Europeans, and that in the collision that occurred between the natives and Europeans in 1843, and again in 1846, he rendered most signal services to the Government. "What," asks the Archdeacon, "are the loyal natives to think of a Governor, who, without the least provocation singles out this chief distinguished through a long course of years for his loyalty to H.M.'s Government and friendship to the English, for a hostile attack4?"

It is scarcely worth while to notice the perversion in this statement, as though the Governor had attacked King, whereas King first defied and then attacked the

1 Ibid. See to the same effect, Evidence, E, No. 4, p. 24. See also New Zealander, Aug. 11, p. 7, col. 4, near foot of page.

2 E, No. 1, B, p. 4.

3 E, No. 3, p. 6. E, No. 3, H, p. 4.

4 Letter to the Duke of Newcastle, p. 23.

page 45 Governor1. But, as to the question of King's loyalty, it is not denied that King is a high-spirited and in many points noble Maori chief, and it is a subject of regret, that necessity should lead to collision with such a man. It is admitted, that formerly he was loyal. But even in 1846 the ministers assert that his services have been greatly magnified. His fidelity was doubtful. His attitude was little, if at all, more favourable to the British Government than that of an armed neutrality2. But it is added, that, since 1848, when in spite of Sir George Grey he returned to Waitara, his conduct has been that of a turbulent chief, ever the head of the anti-land-selling party, by which so much violence and bloodshed has been caused in Taranaki, though he is wholly acquitted of any personal share in the murders3.

Governor's Statements.

It has been much objected, that the Governor had said that he would not purchase land with a disputed

1 The words of Mr Dillon Bell are to the purpose. "It has been said that the Governor meant and wished to make war. Nothing can be more utterly untrue. The Governor's main objects in his declaration of March, 1859, were, first, to put an end to the dreadful scenes of bloodshed that for years had been enacted among the natives, and that threatened at any moment to involve the settlers, and secondly, to free the natives from the oppression of the land-leaguers. It was a natural consequence of those declarations that he should accept Teira's offer of the Waitara land; and when, upon his attempting peaceably to lay out upon the ground the position and extent of Teira's claims, Wiremu Kingi resisted the survey by force, and prohibited him from even ascertaining what those claims were, it was a further natural consequence that the Governor should repel such an assumption, and oppose force to force. It was not the Governor who made war on Wiremu Kingi, it was that chief who made war on the Governor, by erecting armed pas, by performing war-dances, by refusing the safe conduct and rejecting the merciful summons that was sent to him."—New Zealander, Aug. 8, p. 7.

2 E, No. 1, B, p. 4.

3 Ibid. See also New Zealander, Aug. 11, p. 6, col. 6, also p.7, col. 2, foot of page.

page 46 title; and it is added, that the title in this case was at least disputed, whether rightly or not, that therefore he ought to have fallen back on his own declaration and have yielded to King's opposition. It may be that the word "disputed" was an ill-chosen word. What the Governor obviously meant was a clear and valid title. If an undisputed title be one to which no objection, however frivolous, be urged, it is plain enough that, whilst the Land-league exists, no land can ever be purchased, for members of the Land-league can always urge some objection. And it is to be remembered, that the Governor added, that he would never allow one chief to prevent another from selling that which was his own. Teira offered land to which he asserted an unquestionable title, King forbade the sale. The Chief Commissioner, having the Queen's special authority for that purpose, and having for twenty years performed the office, is desired to investigate the title. After eight or nine months' patient enquiry, he reports that Teira's title is undoubted, King's right of interference none at all. Teira is the weaker, King the stronger. On what principles of justice or of policy could the Governor yield to the stronger and repel the weaker, repudiate the judgment of the Commissioner, and, when the title was declared to be good, refuse to fulfil his promise and to purchase the land? Would such a course have vindicated the majesty of English Law, or have inspired the natives with a sense of our justice, our truth, or our power?
page 47
Note 1.

The severity of Archdeacon Hadfield's condemnation of the Governor will plead my excuse for extracting the following testimony to his character from the recent debates.

Mr Stafford, the Colonial Secretary, said: "I have had many opportunities of knowing His Excellency. I have not concurred in all his opinions nor in all his acts; but I will say this, that I never once doubted the entire honesty of his motives (cheers). Sir, Her Majesty, and the British Nation, never had a more upright representative than Governor Gore Browne (loud cheers). One desire, conscientiously to do his duty, governed all his actions. No greater proof of this could have been afforded than his conduct as to the Taranaki question (hear, hear). Had he not been an honest man, nothing could have been simpler than to have smoothed over and patched up this question. He might have avoided any declaration of policy, or have failed to act up to it when opposed by a contumacious native. He might have really degraded the dignity of the crown in the native mind, but he might not have gone to war. He might have left that for his successor, and have left the colony with the character at home of having held a most peaceful reign, of being a 'model Governor.' But he preferred to do his duty (loud cheers)."—See New Zealander, Aug. 11, p. 6, col. 4.

Note 2.

The Bishop of Wellington has complained, and that repeatedly, that the Governor did not give public notice to the Colony of his intention to call in the aid of the military, has said that he and others had "no idea of the sudden coup de main that was planning," and has excused Archdeacon Hadfield's suppression of King's letters by pleading, that ho could not have expected such decided action on the part of the Governor. How this excuses the Archdeacon it is hard to see. But as to the so-called coup de main, is it strange in any country that, when a mob resists and overawes the civil authority, the executive should call in the aid of the military? The Governor had given abundant and most public notice, that he would not allow unlawful interference. Was he bound to proclaim through the Colony that he meant by this that, if the civil powers failed, he would support them by the page 48 military? Could any one suppose that he would yield as soon as the police were overpowered?

On the other hand, the Governor has been blamed for imposing restrictions on the Commander of the Forces, because he forbade him to attack W. King, until it was proved that the civil authorities were insufficient, and until King committed some overt act of aggression. What should we have said in England as to the mercy or the justice of any severer proceeding?

The Governor's actual instructions to Col. Gold were in the following words:

"I have still to request you to refrain from attacking W. King, unless he commences hostilities against you. Should he do so, however, you would, of course, inflict as severe a chastisement as possible without hesitation or delay. If you can effectually punish the Taranaki and Ngatiruanui tribes, such an example would have an excellent effect." This was in May 28. It surely cannot be said, that Col. Gold's hands were tied by such language. The injunction to refrain from attacking W. King first was both humane and politic. It was obviously humane; but it was politic also, for if any act of apparent injustice or intemperate haste had been committed, the neighbouring tribes, especially the Waikato, would have been certainly induced by it to join King's standard and to aid in the rebellion.