The Treaty of Waitangi; or, how New Zealand became a British Colony

by Thomas Lindsay Buick

FOOTNOTES

[94] Although the Hokianga chiefs as a body were the most determined in their opposition to the treaty, it is worthy of note that they were afterwards the most faithful in their adherence to the Government, and fought gallantly under Waaka Nēne, Aperahama Taonui, and Mohi Tawhai against Heke and Kawiti, during the Northern war of 1845.

[95] These speeches are reported from notes made at the time by Lieutenant Shortland. In Captain Hobson's despatch he makes it appear that it was Papa Haiga (Papahia) who made this statement, but from Mr. Shortland's notes it would appear to have been Taonui.

[96] Afterwards Judge Manning of the Native Land Court, and author of that classic Old New Zealand.

[97] Meaning one who has been favourable to the introduction of Europeans.

[98] Altogether 120 signatures were obtained in the Hokianga district.

[99] Captain Nias conducted the meeting at the Waitemata, and secured eight or ten signatures.

[100] It is more than likely that at this date Captain Nias did not know the real nature of Captain Hobson's illness. Some correspondence which took place later in the month seems to suggest that there was a little friction between Dr. Lane, the ship's surgeon, and himself on the subject. On the arrival of the Herald in Sydney, towards the end of March, Dr. Lane was sent for by Sir George Gipps, who requested that he be furnished with a written report on the state of Captain Hobson's health. Dr. Lane replied, ascribing the illness to an attack of paralysis hemiplegica. In forwarding this report to the Governor, Captain Nias stated that "it is in total contradiction of everything he has stated before to me on the subject."

[101] The attitude of the Missionaries toward the treaty was well expressed by the Rev. Mr. Maunsell in a letter to the Colonial Secretary, Mr. Shortland, dated April 14, 1840.

[102] These services were acknowledged in the most generous terms by Captain Hobson.

[103] "The appointment of Police Magistrates was one of the first acts under the new order of things. Mr. Robert (?) Shortland, the first Police Magistrate, after the illness of Governor Hobson, styled himself Acting-Governor, and a more ridiculously pompous functionary could scarcely be imagined."—Commander Wilkes.

[104] "A report prevails and not without foundation that a conspiracy against the Government and Military exists amongst many of the chiefs of this neighbourhood. I know the persons implicated and I will have them closely watched. If there really is any truth in the matter it may be ascribed to the mischievous stories that have been circulated by low, abandoned Europeans who try to persuade the natives that we only wait until we are strong enough, to take possession of the land, and sell it, irrespective of Native claims."—Vide Captain Hobson's Letter to Sir G. Gipps, May 5, 1840.

[105] In many cases Mr. Shortland has used the baptismal name of the men who spoke, and in some instances, such as Forde and Marsden, it is now impossible to identify the men from their signatures on the treaty.

[106] A reference to the misrepresentations of the Europeans.

[107] "Our chief Noble has become quite a European in his habits. He has a neat little weather-boarded cottage, which is furnished with table and chairs like our own, and his food is much the same. He has purchased tea, sugar, and rice from the European settlers, and is as cleanly with his wife as any white person, and in all respects as comfortable. He assembles his servants and people about him, morning and evening for prayer, and all his concerns are conducted with the utmost order. His Excellency Governor Hobson has just visited this place. He, with his suite, supped at Noble's, and was vastly pleased with him."—Report of Mr. Puckey in Missionary Register, 1841.

[108] The meeting concluded with a war dance, and general discharge of musketry, and a feast provided entirely at Nopera's expense. Not only did he refuse to accept any payment, but he added to his generosity by sending to the Governor a present of pigs and potatoes.

[109] Captain William Cornwallis Symonds was the son of Sir William Symonds, Surveyor of the Navy, and was Deputy Surveyor of New Zealand. He accompanied Dr. Dieffenbach on some of his exploring expeditions, and made maps of his observations. He was also an enthusiastic student of the native language, and collected a vocabulary of 3000 Maori words. He lost his life in 1841 through his canoe capsizing while crossing the Manakau Harbour.

[110] Rewa had said at Waitangi that his opposition there had been inspired by the Bishop.

[111] The Rev. Robert Maunsell (afterwards Archdeacon Maunsell) arrived in New Zealand in 1835. He was a "ripe and trained scholar," and after he had mastered the native language became, next to Mr. Henry Williams, the leader of the Missionary movement. He rendered an invaluable service to the cause of Christianity by his translations of the scriptures and prayer-book into the Maori tongue. In July 1843 his house was destroyed by fire, and with it were lost the MSS. of his dictionary, and his revisions of the translated Psalms and Old Testament. He however courageously set to work again almost before the burns upon his hands had healed. A fund of £200 subscribed in England provided him again with a library.

[112] Afterwards massacred at the White Cliffs.

[113] Neither Te Wherowhero nor his brother, Kati, appear to have signed the treaty.

In the appendix to Kerry Nicholls' King Country appears the following as a portion of the late King Tawhiao's autobiographical narrative: "I remember a European coming to ask Te Wherowhero (Tawhiao's father) to sign the treaty of Waitangi. That European was Mr. Maunsell. The Maori he had with him was Tipene Tahatika. Te Wherowhero said he would not sign. Mr. Maunsell remarked to Tipene, 'This ignorant old man, if he had signed, I would have given him a blanket.' Te Wherowhero was then at Awhitu. Te Wherowhero's name was afterwards put to the treaty, but it was written by Te Kahawai, and not by himself."

[114] Mr. Hamlin, though laying no great pretensions to scholarship, was considered by the Maoris to be the most perfect speaker of their language in New Zealand.

[115] "Here I may remark that it is impossible to view with unconcern the injurious tendency of religious dissensions among a people just emerging from paganism. Between the disciples of the Bishop and those who have embraced the doctrines of Protestantism there already exists a feeling which borders on hostility, and it is not unusual to hear the former taunted by their adversaries as worshippers of wood and stone, misguided unbelievers, devils, etc. To express sentiments of severe censure against the Roman Catholic Church and its followers is not the most efficient means of advancing the interests of the Protestant Church, and in reply to the illiberal language which is dealt forth so unsparingly on this subject, we may cite among innumerable other facts, the life and actions of Fénélon, the most blameless and virtuous of men, in proof that a Roman Catholic clergyman is not of necessity either a Jesuit or a hypocrite. But holding in view the admitted tendency of religious dissensions to unsettle and weaken the impression of Christianity in the minds of the natives of New Zealand, and at the same time to foster dissension and angry feeling it is certainly to be regretted that an attempt has been made to introduce the doctrines of Rome into a field already preoccupied by the active and zealous emissaries of the reformed Church."—Jameson.

[116] "During my residence at the Bay of Islands, on this occasion, I derived much pleasure from the acquaintance and conversation of M. de Pompallier, the chief of the French Catholic Mission to the South Seas, and Bishop of Oceania, who was held in high esteem by every individual in the settlement, not only on account of his polished and courteous demeanour, but from his more important merits of learning, professional zeal, and practical benevolence. Whatever may be said of his persuasion, it is at least evident that no motives of a worldly or ambitious nature could have thus induced a man of rank and wealth to devote himself to the arduous and hazardous duties of a missionary in the Pacific."—Jameson.

[117] Captain Lavaud mentions that during this interview he had always addressed the Lieutenant-Governor as "Captain," and not as His "Excellency." He explains, however, that he did so "more by instinct than with any intention of being discourteous."

[118] The treaty is here transcribed in the Captain's Despatch.

[119] The Rev. William Williams does not appear to have obtained the signatures of Te Kani-a-Takirau or Houkamau amongst the chiefs of Waiapu. It is unlikely that men of importance such as these were overlooked, and we may therefore conclude that they objected to sign. Mr. Williams reported that he would require sixty more blankets to complete the gifts to the chiefs in his district. Mr. Williams was afterwards first Bishop of Waiapu.

[120] The district now surrounding Napier.

[121] "I desire to impress upon you the anxious wish of the Directors that you, and all the servants of the Company, should do whatever may be in your power to promote the success of Captain Hobson's mission, and to accelerate as much as possible the time when it is to be hoped that he, as Her Majesty's representative may establish a British authority and the regular application of English law, not only in the Company's settlements, but throughout the Islands of New Zealand."—Extract from a letter written by Mr. John Ward, Secretary to the Company, to Colonel Wakefield, after the Company had been advised that its proceedings were illegal.

[122] "On the Wednesday following, while preparing to take my departure—not being able to obtain the signatures required owing to the opposition of Colonel Wakefield and others, to the treaty between the chiefs and Her Majesty—Colonel Wakefield came to me, making a most ample apology, and expressed his regret that he should have given way to his hasty feelings on the previous Saturday, and hoped that I should not leave the port with unfavourable feelings, and that he was ready, if I wished, to make a public apology. The fact was that Colonel Wakefield wanted the land, and was willing to make any sacrifice confined to words."—Carleton's Life of Henry Williams.

[123] This letter, written subsequent to the Colonel's apology, was first made public through the columns of the London Times, and it was not for months afterwards that Mr. Williams heard of it. The history of the land transaction referred to, which excited the indignation (righteous or otherwise) of Colonel Wakefield, is fully told in that interesting book, Hugh Carleton's Life of Henry Williams, vol. i. pp. 237-243, and should be read by all impartial students of the question.

[124] Amongst others, by Te Rauparaha and his niece Topeora, the poetess, on May 14.

[125] Immediately after his seizure, Captain Hobson had dispensed with the services of the Herald, on account of his personal differences with her Captain. She then returned to Sydney, but Sir George Gipps sent her back again, telling Captain Nias that "naval co-operation was essential to the enterprise at New Zealand, as the Queen's sovereignty was established over only a small portion of the Northern Island."

[126] Major Bunbury, K.T.S., and a portion of his regiment (the 80th) were sent to New Zealand by Sir George Gipps in H.M.S. Buffalo, as the result of a request from Captain Hobson for some military support. They left Sydney just as the news of Captain Hobson's illness reached the seat of Government, and Major Bunbury was given a commission to act as Lieutenant-Governor in the event of Hobson's death or resignation.

In his Reminiscences the Major states that Captain Hobson begged him to undertake this Southern mission in order to relieve him (Hobson) from the necessity of again sailing with Captain Nias, with whom he had several violent quarrels about the salutes he was to receive and other similar details. "It was," says the Major, "a grievous sacrifice to make, the troops not having yet landed or arrangements been made for their accommodation, but I could not prevail upon myself to refuse him."

[127] Horeta te Taniwha, the celebrated chief known as "Hook-nose," who remembered Cook's visit to New Zealand.

[128] This was what the natives called "making their hearts good." "Pay us first and we will write afterwards." "Put money in my left hand and I will write with my right hand," was how they often expressed it.

[129] Taihoa = delay, postpone, put off, reserve for further consideration.

[130] Meaning that he was the representative of the central district.

[131] The writing of the treaty.

[132] Major Bunbury left eight blankets with Mr. Stack for distribution amongst future signatories, but the Missionary mentions in a subsequent letter: "Several more may be wanting if Tupaea and his friends sign." Tupaea would not sign, either when approached by Mr. Stack, or later when he paid a visit to Manakau. The above discussion explains why.

[133] The dialect spoken by the natives of the South Island of New Zealand differs in some important respects from that spoken in the North Island.

[134] Major Bunbury was so impressed with the fertile appearance of Banks's Peninsula that he recommended it be surveyed as soon as possible and thrown open for settlement in allotments of convenient size, in order to put a stop to the "preposterous claims" which were being urged by the Sydney land speculators. Most of these claims of "doubtful origin" originated in sales contracted with Taiaroa, the Otago chief, who had an equally "doubtful" right to sell. Taiaroa went to Sydney in the Dublin Packet in 1839.

[135] "In some excursions I made I was much pleased with the fertile appearance of this beautiful island, and although the winter was so far advanced it was not so cold as I had anticipated from its being so far south. Indeed the number of parrakeets seen flying about give it rather the appearance of a tropical island.... The soil appears in general good, with plenty of timber. There are several varieties of pine. All the trees, however, appear to be evergreens."—Major Bunbury's Despatch.

[136] Major Bunbury mentions that by this time he had become ashamed of this sobriquet, which was given to him by the whalers, and disowned it, preferring to be called by his native name.

[137] Tu Hawaiki had only returned in the previous month of March from Sydney, where he had been presented with these uniforms by Sir George Gipps. Shortly after this chief's repulse of Te Rauparaha at Lake Grassmere, on the coast of Marlborough, he boarded a British man-of-war, and on being asked who he was, proudly replied: "Me all the same the Duke of Wellington, Te Rauparaha all the same Napoleon."

[138] Another chief named Taiaroa is also credited with signing. It is difficult to determine which chief this was, as the great Taiaroa was at Moeraki at the time. Possibly it was one of his sons.

[139] These were Kaikoura and Taiaroa. The identity of this Taiaroa is not clear.

[140] There were two American and two French whalers at the anchorage here at the time.

[141] Major Bunbury mentions that some of these speculators had already sent a number of cattle over, but the natives resisted the occupation of their alleged purchases, and the persons who were placed in charge of the cattle "find themselves in rather an awkward predicament."

[142] Popularly known amongst the whalers as "Jordy Bolts."

[143] Major Bunbury mentions the eagerness manifested by the natives of Cloudy Bay for spelling-books and Testaments. On the table in his cabin was lying a Testament printed in the native language which had been given to him by Bishop Broughton. This was seen by some of the Maoris visiting the ship, who importuned him for it, with the result, he feared, that his refusal gave serious offence.

[144] As the Herald left Cloudy Bay, the Kaikouras, clad in their winter snow, loomed up in the distance, and Major Bunbury was deeply impressed with what he calls their "bleak and savage appearance." The Major took his departure from the Middle Island fully convinced that it had been greatly underrated by the authorities both in regard to the fertility of its soil and the intelligence of its natives.

[145] Te Rauparaha may have laid himself open to this charge of insincerity by afterwards making light of the fact that he had signed the treaty, and offering to sign again if they gave him another blanket. With Te Rangihaeata it was different. Savage that he was, he had the keenest sense of honour, and he would not have signed the treaty had he not approved it so far as he understood it. His subsequent rebellion was not a protest against the establishment of civil authority so much as it was active resistance towards what he believed to be the unfair if not the dishonest methods of land dealing adopted by the New Zealand Company, in whom he lost all confidence after their attempt to seize the Wairau Valley.

[146] Before the first batch of the Company's emigrants sailed from the Thames, they were induced by the Directors to sign an agreement binding themselves to "submit in all things needful to peace and order until the establishment of a regular Government." This meant that if any of them committed a breach of the law of England, he should be punished according to the law of England. This agreement was brought under the notice of Lord John Russell who challenged the right of the Company to enforce such a provision. The Company took the opinion of Serjeant Wilde upon the point, and his advice, given on November 14, 1839, was that (1) the parties will not be justified by law in acting under the agreement, (2) that those acting under it were liable to prosecution for so doing, and (3) the agreement should be abandoned.

[147] "Captain Pearson of the brig Integrity was arrested to-day (April 14) under a warrant issued for illegal conduct towards his charterer, Mr. Wade, of Hobart Town, and brought before the District Magistrate, Major Baker. The prisoner refused to recognise the Court, and was accordingly committed. The ensuing day Captain Pearson made his escape, and an escape Warrant has accordingly been issued against him."—Extract from New Zealand Gazette (the first newspaper published in the Colony), April 18, 1840.

[148] The proclamation itself does not make it clear on what grounds Hobson took possession of the "Island." Indeed it is so ambiguously worded that he seems to imply that he claimed it by right of cession. In his despatch to the Secretary for State, however, he made it clear that he intended to claim it "by right of discovery," a course which he had recommended to Lord Normanby before he left England.

[149] "Captain" Cole as he was sometimes called, because he had been sailing in an East Indiaman, had been one of the early Wellington settlers, having come out in the Aurora. On the arrival of Captain Hobson he removed to the Bay of Islands, and had succeeded in getting himself appointed chief constable at Port Nicholson, in which capacity he now appeared in the Southern settlement.

[150] As sovereignty over only a small portion of the Colony had at this time been ceded to the Queen, Hobson was claiming a wider jurisdiction than he was entitled to in describing himself as "Lieutenant-Governor of New Zealand." He was only Lieutenant-Governor in New Zealand.

[151] This also was a mistake. It should have been South, not North. On this error Sir George Grey once based the argument that New Zealand included New Guinea, and was entitled to claim control over it. The error was corrected and the boundaries so amended as to include the Chatham Islands.—Vide Letters Patent issued to Captain Hobson, April 4, 1842.

[152] It had been reported that the settlers were starving, which was quite untrue.

[153] While H.M.S. Britomart (Captain Stanley) was returning from her historic visit to Bank's Peninsula she put in to Port Nicholson and took Mr. Shortland on board, leaving Mr. Murphy to supply his place as the representative of the Government at the Southern settlement.

[154] This number was subsequently increased to 546.

[155] Mr. Fredarb, who was trading master of the schooner Mercury, added the following note to his copy of the treaty: "The chiefs at Opotiki expressed a wish to have it signified who were Pikopos (i.e. Roman Catholics) and who were not, the which I did by placing a crucifix † preceding the names of those who are, as above, and at which they seemed perfectly satisfied."

CHAPTER VI
THE TREATY

Captain Hobson having now by his own efforts and the agency of those who were associated with him completed his negotiations with the native chiefs, it remains for us to examine briefly the nature of the compact into which the Maori and Pakeha had thus solemnly entered. The Treaty of Waitangi is a document of few clauses and precise terms. Yet under the conflicting interests which it was designed to harmonise few documents have been more generally misunderstood or more persistently misinterpreted. More than once in high places its utility has been denied, its simple contracts have been repudiated, and its existence has been ignored. Lawyers have repeatedly questioned its legality, courts have discussed its constitutional force, parliaments have debated its wisdom, but still it stands to-day—unaltered in text or spirit—the great charter of Maori rights. Its most virulent enemies have ever been the land speculators, and there are not wanting signs in these times of unsatisfied land hunger—of never-ceasing speculation—that the treaty has either been forgotten by those whose duty it is to remember it, or that its obligations have ceased to have their old-time moral value. Lest we forget that the treaty is still in force, and that native lands are not common plunder for the avaricious Pakeha, let us briefly review the circumstances which made the compact between the two nations a political virtue, if not a political necessity.

It is a principle recognised by the civilised nations of the Earth that the discovery of a waste and uninhabited land by a pioneering country confers on that country a right, as against all other civilised countries, to colonise its new discovery. In such a case the discovering nation may in fact go further, by immediately taking possession of the new-found territory, and assuming sovereignty over it. In this way Norfolk Island being found devoid of inhabitants by Captain Cook, his discovery of the sea-girt isle not only entitled Britain to colonise it, but automatically added it to the possessions of the Empire. This principle has thus been concisely stated by Vattel: "All men have an equal right to the things which have not yet fallen into the possession of any one; and these things appertain to the first occupant. Wherefore, when a nation finds a country uninhabited and without a master, it may lawfully seize upon the same, and after it has adequately denoted its will in this respect another cannot thereof despoil it. Thus navigators going on their voyages of discovery, provided with a commission from their sovereign, and falling in with desert islands, or other desert lands, have taken possession of them in the name of their nation, and commonly this title has been respected, provided that thereupon a real possession has closely followed."

It is equally an acknowledged maxim of the Law of Nations that should the newly discovered land not prove to be "waste and without a master," but that it should be inhabited and under government of any kind, then the mere fact of its discovery by a civilised nation confers upon the discoverer no title to the soil, but only the prior right to colonise as against other colonising nations. This is but the natural reward which belongs to the enterprise displayed in fitting out ships and expeditions destined to navigate unknown seas or to travel in unknown lands. Such prior right to colonise is, however, strictly limited by the important consideration that colonisation can only take place with the free will and consent of the savage or semi-civilised inhabitants of the newly discovered country. In no sense does the act of discovery confer the right of property in the land, or the right of sovereignty over its people. That is to say, in the abstract, no nation whatever can under any pretext violate the rights of any other independent nation. This was clearly the principle which guided those British Governments to whose lot fell the establishment of the first colonies in America. In all these cases was the property of the Indian tribes respected, and no land was acquired save by purchase, or by some other equitable arrangement made with the aboriginal owners.[156] Hence in the celebrated case of the Cherokee tribe against the State of Georgia, tried in 1832, before the late Chief-Justice Marshall, that eminent judge was able to declare that as the United States had only inherited its rights from Great Britain after the War of Independence, the individual States could not assume rights greater than Britain had claimed to possess prior to that event. No right in Cherokee lands therefore vested in the State until the Indian title had been honourably extinguished.

This equitable principle has not always been observed between so-called civilised nations and semi-barbarous peoples, but that it has long held a place amongst the ideals of men is suggested to us by the Phoenician legend, that when the merchant princes of Tyre and Sidon resolved to establish a trading factory on the site upon which subsequently rose the city of Carthage, they fairly bought the land from the natives of Northern Africa, the area being determined by the length of the thongs cut from a bullock's hide. Such a story, coming down to us as it does through the hoary mists of time, may or may not appeal to our practical present-day minds, but the fact that it was commonly told and commonly accepted amongst the ancients is at least an indication that the principles which govern the conduct of modern nations towards their less fortunate brethren are founded upon and have the sanction of great antiquity.

When we come to apply these principles to New Zealand it is of course necessary to remember that the first European discoverer[157] of this Dominion was not Cook, but Abel Tasman. The Dutchman's association with the country was, however, so cursory, and his nation's subsequent interest in it so nominal, that to the sailor it appeared only as "a great land uplifted high," while to his countrymen it was known only as a vague scrawl upon the chart. That Tasman's discovery of 1642 gave the Dutch a right to colonise in New Zealand had they been so disposed is undoubted; but whatever rights they had thus acquired, such were clearly exhausted by Holland's failure to assert them during the long period of 135 years that elapsed before Cook came to make a reality of what to Tasman had only been a shadow.

With his characteristic thoroughness Cook left no weak link in the claim which he made on behalf of his nation. He landed on our shores, held intercourse with the natives, he surveyed our coasts, he took formal possession of both Islands "in the name, and for the use of His Majesty King George III."

"A philosopher perhaps might enquire on what ground Lieutenant Cook could take formal possession of this part of New Zealand in the name and for the use of the King of Great Britain, when the country was already inhabited, and of course belonged to those by whom it was inhabited, and whose ancestors might have resided in it for many preceding ages. To this the best answer seems to be that the Lieutenant in the ceremony performed by him had no reference to the original inhabitants, or any intention to deprive them of their national rights, but only to preclude the claims of further European navigators, who under the auspices and for the benefit of their respective States, or Kingdoms, might form pretensions to which they were not entitled by prior discovery."

So wrote one of the great explorer's most friendly biographers, and in his dispassionate review of the facts we have a correct summation of the rights which Cook's discoveries did and did not confer upon our nation. Clearly New Zealand was not a country in which, or over which, Britain could, by Cook's act, acquire a bona fide possession, for it was inhabited by a strong and virile people, living under a system of government adequate in all respects for their social and military purposes.

In conferring upon New Zealand her charter of severance from New South Wales in 1840 Lord John Russell thus conveyed to Captain Hobson his view of the governmental state to which the Maori had risen: "They are not mere wanderers over an extended surface in search of a precarious existence; nor tribes of hunters, or of herdsmen, but a people among whom the arts of government have made some progress; who have established by their own customs a division and appropriation of the soil; who are not without some measure of agricultural skill, and a certain subordination of ranks, with usages having the character and authority of law." New Zealand then being an inhabited country and a country under a system of government at least so efficient as to subsequently induce the British authorities to recognise the Maori nation as an independent State, it becomes obvious that this could not be designated a land which could be lawfully seized upon by circumnavigators.

But such rights as Cook's discoveries did confer upon the nation, the Government of that day sought to conserve. Following upon his return to England with the accounts of his travels in strange waters, his contact with strange peoples, his finding of new lands, proclamations were issued which were not contested by other Powers. The Dutch title to these islands was thereby lawfully extinguished, and New Zealand, Van Dieman's Land, and Australia became for geographical and colonising purposes portions of the British Empire.

A laudable effort was made to render the claims of Britain even more explicit when in 1787 Captain Philip was appointed by Royal Commission Captain-General and Governor-in-Chief in and over the colony of New South Wales and its dependencies, which were claimed to include all the discoveries of Cook in the Southern Pacific. The territory over which the new Governor was authorised to exercise jurisdiction was described in his Commission as extending "from Cape York, the extremity of the coast to the northward in the latitude of 11° 37´ south, to the South Cape, the southern extremity of the coast in the latitude of 43° 30´ south, and inland to the westward as far as 135° of east longitude, comprehending all the islands adjacent in the Pacific Ocean within the latitudes of the above-mentioned capes."

Unfortunately, owing doubtless to imperfect geographical knowledge on the part of those responsible, these boundaries were but loosely defined, for if they had been strictly adhered to, then Britain was setting up a claim not only to Cook's valuable discoveries, but to all the islands eastward of Australia, as far as the western coast of South America, embracing many Spanish discoveries; while on the other hand they excluded not only Stewart's Island, but all that part of the Southern Island of New Zealand south of Bank's Peninsula. Governor Philip's Commission was therefore faulty, because it asserted excessive rights in the one direction and made insufficient claims on the other.

It is true that in later years these boundaries were abandoned and the position made even more anomalous. During the Governorship of Sir Thomas Brisbane it was deemed expedient to separate Van Dieman's Land from New South Wales, and more circumscribed limits were assigned to the Mother State. In this readjustment, whether by accident or design it is impossible now to say, not only Van Dieman's Land but New Zealand were excluded from amongst the dependencies of New South Wales. Then it became an arguable point whether the word "adjacent" had ever covered Islands so far distant from the parent colony, and much legal acumen was expended in the effort to justify the contention that New Zealand had always been beyond the pale of the dependencies.

Up to this point, however, the official mind had never been troubled by doubts as to the extent of its jurisdiction. Governor Philip not only believed that his authority extended to New Zealand, but far beyond it, and under this belief he actually colonised Norfolk Island as a part of the territory he had been commissioned to govern. In like manner the British Government believed it had a right to all that it claimed in Philip's Commission; and at the Congress of Vienna at the close of the Napoleonic wars in 1814, when the map of Europe was recast, it had its claims allowed, New Zealand being acknowledged by the Great Powers to be a portion of our then infant Empire. Even earlier in the century Ministers had seriously discussed a representation made by Lieutenant-Colonel Foveaux, of the New South Wales Corps, to appoint a Lieutenant-Governor in New Zealand, which under his scheme was to become a penal settlement subordinate to New South Wales. Fortunately for New Zealand that baneful suggestion was not entertained; but Governor Macquarie appointed Justices of the Peace and exercised the functions of Government within the Islands, as did his successor, Sir Thomas Brisbane, down to the time of his proclamation which excluded New Zealand from amongst the dependencies of New South Wales.

Thus far Britain would seem prima facie to have kept alive her right to colonise in these Islands as against any other nation, except, perhaps, in the important particular that she had not systematically occupied the land. It is not sufficient that discovery should take place, or that the free will and consent of the native inhabitants should be obtained to the introduction of colonisation. It is an essential factor in the acquisition of new territory that the sanction thus secured should be followed up by speedy emigration and effective settlement, for obviously no nation could be permitted to hold idle for an indefinite period vast tracts of waste country to the exclusion of another nation to whom the inhabitants might also be willing to concede the right to colonise. The principle upon which this view is based has thus been stated: "The Law of Nations, then, will recognise the proprietary rights, and the sovereignty of a nation over only uninhabited countries which it shall have occupied really and in fact, in which it shall have formed a settlement, or from which it shall be deriving an actual use."

In the case of inhabited countries the condition of occupation is no less exacting. It is, however, hedged about by the additional restriction that before occupation can take place the right to settle must be ceded by the inhabitants. Had the point ever become one of national importance as between ourselves and France, Britain might have pleaded that her occupation was at least as far advanced as that of her rival. She might have pointed to her Missionaries, her traders, and her whalers as evidences of an irregular settlement by no means inconsiderable. But whatever importance British jurists may have attached to such a form of occupation in the settlement of an international dispute, it cannot be denied that it loses much of its value from the fact that the settlement was irregular, and that British Ministers would have been put in the anomalous position of calling to their aid a condition of society which had arisen, not with the sanction of the Crown, but in spite of the Crown.

If these views be founded on the principles of justice, it will be seen that it is a popular fallacy to suppose that Britain acquired any rights of sovereignty in, or over New Zealand by virtue of Cook's discovery. Her position in 1770 was much less absolute than that, and whatever rights she had then acquired she subsequently proceeded to abrogate. In 1817 commenced a period of renunciation during which successive British Governments appeared only too anxious to absolve themselves from all further colonial responsibilities. Not only by neglect, but by direct Act and Ordinance did they repudiate the claim to New Zealand which their predecessors had been laboriously building up through all these years. These Acts of repudiation were specifically enumerated by Lord John Russell in the memorandum which he prepared for Lord Palmerston in reply to the protest of the New Zealand Company against the views on sovereignty adopted by Lord Normanby in his instructions to Captain Hobson, and it was the known abrogation in these statutes of whatever claim Britain may have had to New Zealand that led to the Declaration of Maori Independence in 1835.

It cannot be said that this Declaration of Independence was a serious bar to Britain's colonising scheme, for under the Confederation of Chiefs which grew out of it, no Government was founded stable enough to merit recognition by other established administrations. Indeed its own members were the first to acknowledge its failure in the face of the difficulties by which it was confronted. As useless and as harmless as the "paper pellet" to which it has been compared by the sarcastic Gipps, it was neither government for the Maori nor a controlling influence for the Europeans. It was therefore not that which the Maori had done which created difficulty for the Melbourne Cabinet when they had seriously to face the question of assuming responsibility in New Zealand—the obstacles to be overcome had, curiously enough, been raised by the acts of the British Parliament itself. This was why, at the critical hour, Britain stood in no better position towards New Zealand than did any of the other nations; why she had to run the gauntlet of their competition for sovereignty, and why more astute statesmanship on the part of France or the United States might have robbed her of "the fairest flower in all the field."

In bidding for the sovereignty of the country two courses were open to the British Government—force of arms, or honourable negotiation with the chiefs. It is not to be doubted that had Britain chosen to invade the country, she might, by pouring her battalions into it, in course of time have overcome the tribes by the slaughter of the sword. But who can estimate at what a cost the country would thus have been won?—while the crime of it would have been even more awful to contemplate than the sacrifice of blood and treasure. Happily it can never be suggested that Lord Melbourne's Ministers had ever contemplated such a mode of securing sovereignty. Their personal view was that it must be ceded if it was to be acquired at all, while the House of Commons had made it abundantly clear that it would accept it on no other terms.

Here then we have the genesis of the treaty. Discovery gave us no right of sovereignty. Force of arms was incompatible with the spirit of the times; possibly beyond the resources of the nation. Negotiation on the other hand had been made easy by the labours of the Missionaries, and the repeated expressions of good-will which had passed between the British Sovereigns and the chiefs. It was the line of least resistance; a mode agreeable to the national conscience, and approved by the laws of civilisation. For these all-sufficient reasons then Captain Hobson was despatched to New Zealand, charged with the mission of securing for the British Crown the sovereignty of the country by the "free and intelligent consent of the natives, according to their established usages."

In proceeding to an analysis of the treaty itself it will not be necessary to refer to the preamble, which is but an abridged recital of all that has appeared in the previous chapters of this work. It asserts no principle, and is remarkable only for the fact that it reflects in dignified terms the spirit of justice and equity in which its promoters desired to approach the Maori people.

In the first clause the chiefs both within and without the Confederation were invited to "cede to Her Majesty Queen Victoria absolutely and without reservation all the rights and powers of sovereignty which the said Confederation or individual chiefs respectively exercise or possess, or may be supposed to exercise or possess, over their respective territories as the sole sovereigns thereof."

It has been said that this was a condition which the natives never did, and could not possibly understand, seeing that they had neither sovereignty amongst themselves, nor any word in their language to express the idea of sovereignty. Their tribal system, it is true, was fatal to the principle of sovereignty in its broadest sense, and until the formation of the Confederation of Chiefs there was no force amongst them capable of exercising absolute authority over any great number of the people, the sovereignty of each chief being limited to his own tribe. No real sovereignty, however, vested even in the Confederation. From the first it was impotent as a national Government, because it lacked the requisite cohesion. Mutual tribal jealousies still prevailed, making it a Confederation only in name; and so far as is known it did not pretend to exercise any sort of dominion over the people after the excitement consequent upon the advent of Baron de Thierry had subsided. The native mind had therefore learned nothing of what was meant by sovereignty as we understand it, from the union of their chiefs. All that they knew of a paramount authority which it was their duty habitually to obey was the mana[158] of their personal chiefs. That they understood perfectly, and that conveyed to them all that they required to understand. Each chief was a sovereign over his own people, and the people were not so lacking in intelligence as not to perceive that the treaty meant the passing of this mana from the chief to the Queen. It would, of course, be radically unsound to pretend that every native who signed the treaty had perfectly grasped its provisions, and knew with even moderate certainty what he was retaining and what he was conceding. In many instances, particularly where the land had already been sold, it might not be incorrect to say that some of the chiefs did not even attempt to comprehend it. The red blanket[159] or the juicy plug of tobacco was an irresistible bait to many who felt they had no longer a "name," and so far as they were concerned, sovereignty and all else might fly to the four winds so long as their personal wants and their love of colour were gratified. The predicament in which those natives found themselves who afterwards alleged they had signed the treaty without a full appreciation of its terms and its obligations was poignantly put by Paora (Paul) Tuahaere, who, speaking at the Kohimarama Conference[160] in 1860, said the treaty had come "in a time of ignorance," and upbraided the elder chiefs for being caught thus unwarily. "Blankets were brought by Mr. Williams. These I call the bait. The fish did not know there was a hook within. He took the bait and was caught. When he came to a chief Mr. Williams presented his hook and drew out a subject for the Queen."

In less figurative, but not less pointed speech, Paora was supported by Heme Parae, who declared that the only law he heard of in 1840 was the law of God. "As to what is called the Treaty of Waitangi, I have heard nothing about it. It is true I received one blanket from Mr. Williams, but I did not understand what was meant by it. It was given to me without explanation by Mr. Williams and Reihana."

Twenty-three years after the event, when discussing the mental attitude of the Maori towards the treaty, the Rev. John Warren, one of the Wesleyan Missionaries, wrote: "I was present at the great meeting at Waitangi when the celebrated treaty was signed, and also at a meeting which took place subsequently on the same subject at Hokianga. There was a great deal of talk by the natives, principally on the subject of securing their proprietary right in the land, and their personal liberty. Everything else they were only too happy to yield to the Queen, as they said repeatedly, because they knew they could only be saved from the rule of other nations by sitting under the shadow of the Queen of England. In my hearing they frequently remarked, "Let us be one people. We had the Gospel from England, let us have the law from England." My impression at the time was that the natives perfectly understood that by signing the treaty they became British subjects, and though I lived among them more than fifteen years after that event, and often conversed with them on the subject, I never saw the slightest reason to change my opinion. The natives were at that time in mortal fear of the French, and justly thought they had done a pretty good stroke of business when they had placed the British lion between themselves and the French eagle. We have heard indignation expressed at the way in which the natives were, in the treaty, overreached by the Government, especially in the matter of securing to the Queen the right of pre-emption in the purchase of their lands. There is a native proverb which says, with reference to a man of great keenness and sagacity, 'He was born with his teeth,' and in the matter of making bargains the New Zealanders may be said to be a people who were born with their teeth. I believe it is a very long time since it was possible to overreach the natives much in a bargain. I know that their particular clause of the treaty was there by their own urgent request, and that it met with the universal and unqualified approbation of the chiefs."

In adopting this view Mr. Warren is not singular, for we find that his impression is confirmed by many equally competent authorities. It would therefore be an undeserved reflection upon the well-established intelligence of the Maori race to suppose that these indifferents constituted any large section of the people, there being amongst them a wide comprehension of the two great principles embodied in the treaty—that they were surrendering the magisterial control of the country to the Queen, and retaining the possession of the land to themselves.[161] The speeches of its opponents were eloquent of this fact. This was what Te Kemara meant when he exclaimed, "If thou stayest as Governor then perhaps Te Kemara will be judged and condemned. Yes, indeed and more than that—even hung by the neck." This surely was what the great Te Heuheu of Taupo meant when, addressing some natives who had signed the treaty, he said: "You are all slaves now. Your dignity and power are gone, but mine is not. Just as there is one man in Europe, King George, so do I stand alone in New Zealand; the chief over all others; the only free man left. Look at me, for I do not hide when I say I am Te Heuheu. I rule over you all just as my ancestor Tonga-Riro, the mountain of snow, stands over all this land."

The forms by which our sovereignty was exercised were doubtless new and strange to them, as witness their amazement at the pains the Crown took to prove a crime against a prisoner who had already confessed his guilt.[162] In some instances the degree of authority parted with may also have exceeded their anticipations, for we are told that it came as a shock to some of the chiefs when they discovered that they were not free to kill their slaves under the new regime as they had been under the old. Failure to comprehend such details is understandable in the peculiarity of the circumstances. Indeed complete clarity of mental vision could not have been expected, and would not have been attained in all particulars had civilised men instead of savages been concerned. The natives, however, understood clearly enough that for the advantages they hoped to reap from the treaty they were yielding much of their existing power to the Pakeha Governor, and whether it was much or little they were the more willing to surrender it because they realised that the advent of the European had so altered their social conditions that rule by the old method was no longer possible.

To these convictions must be added the indispensable persuasions of the Missionaries, in whose word and advice the Maoris placed implicit trust; but the thing which proved the determining influence in the negotiations—more than the inducements offered by the Crown, or the persuasions of the Missionaries—was that the chiefs had acquired a clear grip of the primal fact that whatever it took from them, the treaty left them in secure possession of their lands.

The sovereignty was the shadow, the land was the substance; and since the shadow was already passing from them by force of circumstances over which they were powerless to exercise control, they consented to its surrender with all the less regret. Once having determined upon this course, and given effect to their determination, there was no wavering, even though in its early stages the rule of the Pakeha must have clashed harshly with their ideas of individual authority. The Maori people were a people capable of delegating their sovereign rights, and they did so delegate them. The Treaty of Waitangi therefore became what it professed to be, a yielding of the supreme political power in the country to the British Crown,[163] and when the last signature had been put to it, Britain's right to colonise and govern in New Zealand was incontestable before all the world.

That is why it has always appeared to the writer that there was at the time, and has been for many years since, much beating of the air by the importance given to the so-called race to Akaroa, between the British sloop Britomart and the French frigate L'Aube, when, soon after the consummation of the treaty, the sovereignty of the South Island was supposed to be in danger. As this incident is the leading historical event which seems to challenge the value of the clause now under review it will be convenient to discuss it here.

Major Bunbury had returned from his southern mission on July 4, and at midnight of the 10th the French corvette, L'Aube, cast anchor in the Bay of Islands. From the pilot who went out to bring her in, Captain Lavaud heard that British sovereignty had been proclaimed over the country by Captain Hobson, and that the Union Jack was flying over his residence as an evidence of the fact.

This was serious intelligence for the Frenchman, who saw in it a circumstance that would render discreet a material modification of the instructions under which he had sailed from France. He had been commissioned to hoist the French flag at Akaroa, where a colony of his countrymen was to be established under his protection. These instructions had been given to him by the French Ministry in ignorance of the British Government's intentions, and Captain Lavaud now saw that to carry them out in their strict and literal sense must inevitably plunge the two countries into a distressful and useless war. The French Commander thus found himself in a position of great delicacy, but fortunately he was an officer blessed with a healthy frankness of spirit, and he lost no time in communicating to Captain Hobson the real nature of his mission. So soon as he had satisfied himself by an examination of the treaty and the proclamations that British sovereignty had been procured in a manner such as could be approved by other nations, and was effectual in its operation, he readily agreed to respect the rights thus acquired without committing himself so far as to formally acknowledge them until he should hear further from his own Government. At the same time he undertook, upon the first opportunity, to communicate with his Minister, and he entertained little doubt that on his representation of the altered conditions he would be instructed to recognise British sovereignty, and honour the British flag. It is at least certain that at the conferences between the two officers, an amicable arrangement was arrived at by which the French commander was able to preserve the honour of his own flag, while avoiding the tragedy of a conflict between their respective countries. There is even colour for the suggestion that the subsequent despatch of H.M.S. Britomart, followed by L'Aube, was only a part of a preconcerted plan, and that the much-paraded race to Akaroa between the French corvette and the British sloop was not a serious contest for sovereignty, but merely a little piece of theatrical play, promoted for the purpose of saving the Frenchman's face. Certain it is that before he left the Bay of Islands, Captain Lavaud had realised that it would be impossible to carry out his instruction at Akaroa without rupturing the national peace, and he was equally determined that he would not accept the responsibility of firing the first shot until he had been further advised from Paris. When this is understood it is all that is necessary to explain the conciliatory manner in which he met the British demands at Akaroa, and participated with our officers in the preservation of order at the southern settlement.

During their stay at the Bay of Islands the officers of L'Aube were entertained with the utmost cordiality by Captain Hobson, who in conversation with their Commander learned something of the proceedings of the Nantes-Bordelaise Company, a colonising corporation organised in France for the purpose of establishing a settlement of their own countrymen at Banks's Peninsula, and whose vessel, the Comte de Paris, was now within a few days' sail of the coast. In 1838 a Captain L'Anglois, as master of a French whaler, had visited Banks's Peninsula, and there, for some articles of European manufacture valued at £6, together with some agreeable promises, had secured the signatures of several chiefs to a deed conveying to him an estate of 30,000 acres of the Peninsula's finest land.[164] This document, composed in French, provided the basis of a negotiation which L'Anglois arranged between two mercantile firms in Nantes, two in Bordeaux, and three Parisian gentlemen, by which they agreed to promote the Nantes-Bordelaise Company whose purpose was to promote a French colony in New Zealand. Their project received the sanction and support of Louis Philippe, who undertook to sustain their enterprise by the presence of one or two ships of war in the South Pacific. Meanwhile the French King had repeatedly assured the British Foreign Office that he had no designs towards territorial aggrandisement in New Zealand. This, in a qualified sense, may have been perfectly true, because while it had been agreed that the Nantes-Bordelaise Company was to cede certain lands to the French Crown in consideration of the protection afforded them, there is every reason to suppose that the French colonising design did not extend beyond Banks's Peninsula, and that there never was any serious intention to annex the South Island. This position was made clear to Captain Hobson by Captain Lavaud, and if it was not secretly agreed upon as a means of strengthening the latter's hands in making his representations to his Government, the sending of the Britomart south with two Magistrates can only have been a precautionary measure on the part of Hobson, who hoped by this means to make the assurance of his former act doubly sure. It has long been a cherished conviction in our history that by his strategetical move Captain Hobson cleverly outwitted the French. It is more probable that he was acting in concert with them, and that what has hitherto passed as a popular historical fact must now be relegated to the realm of historical fiction. Be that as it may, it is a fact that on the night of July 30, while L'Aube lay at her anchors, the old and weather-worn Britomart sailed for Akaroa, carrying with her Messrs. Robinson and Murphy, who were instructed to open courts at all the settlements on the Peninsula, where the British flag was also to be displayed by Captain Stanley. The manner in which that officer, and those associated with him, executed their mission, is told in the Commander's Despatch, written while the Britomart was returning to the Bay of Islands.

Her Majesty's Ship "Britomart," September 17, 1840.

Sir—I have the honour to inform Your Excellency that I proceeded in Her Majesty's sloop under my command to the port of Akaroa, in Banks's Peninsula, where I arrived on August 10, after a very stormy passage, during which the stern-boat was washed away, and one of the quarter boats stove. The French frigate L'Aube had not arrived when I anchored, nor had any French emigrants been landed. On August 11 I landed, accompanied by Messrs. Murphy and Robinson, Police Magistrates, and visited the only two parts of the Bay where there were houses. At both places the flag was hoisted, and a court, of which notice had been given the day before, was held by the Magistrates. Having received information that there were three whaling stations on the Southern side of the Peninsula the exposed positions of which afforded no anchorage for the Britomart, I sent Messrs. Murphy and Robinson to visit them in a whale boat. At each station the flag was hoisted and a court held. On August 15 the French frigate L'Aube arrived, having been four days off the port. On the 16th the French whaler Comte de Paris, having on board 57 French emigrants, arrived.[165] With the exception of Mr. Bellegui, from the Jardin des Plantes, who is sent out to look after the emigrants, and who is a good botanist and mineralogist, the emigrants are all of the lower order, and include carpenters, gardeners, stone-masons, labourers, a baker, and a miner, in all 30 men, 11 women, and the rest children. Captain Lavaud, on the arrival of the French emigrants, assured me on his word of honour that he would maintain the most strict neutrality between the British residents and the emigrants, and that should any difference arise between them he would settle matters impartially. Captain Lavaud also informed me that as the Comte de Paris had to proceed to sea, whaling, that he would cause the emigrants to be landed in some unoccupied part of the Bay, where he pledged himself he would do nothing that could be considered as hostile to our Government; that the emigrants would merely build themselves houses for shelter, and clear away what little land they might require for gardens. Upon visiting the Comte de Paris I found that she had on board, besides agricultural tools for the settlers, six long 24-pounders, mounted on field carriages. I immediately called upon Captain Lavaud to protest against the guns being landed. Captain Lavaud assured me he had been much surprised at finding the guns had been sent out in the Comte de Paris, but that he had already given the most positive orders that they should not be landed. On August 19 the French emigrants having landed in a sheltered, well-chosen part of the Bay, where they could not interfere with any one, I handed over to Messrs. Murphy and Robinson the instructions entrusted to me by Your Excellency to meet such a contingency. Mr. Robinson, finding that he could engage three or four Englishmen as constables, and having been enabled through the kindness of Captain Lavaud to purchase a boat from a French whaler, decided upon remaining. Captain Lavaud expressed much satisfaction when I informed him that Mr. Robinson was to remain, and immediately offered him the use of his cabin and table as long as L'Aube remained at Akaroa. Mr. Robinson accepted Captain Lavaud's offer until he could establish himself on shore. On August 27 I sailed from Akaroa for Pigeon Bay, when finding no inhabitants I merely remained long enough to survey the harbour, which, though narrow and exposed to the northward, is well sheltered from every other wind and is much frequented by whalers, who procure great numbers of pigeons. From Pigeon Bay I went to Port Cooper, where Mr. Murphy held a Court; several chiefs were present, and seemed to understand and appreciate Mr. Murphy's proceedings in one or two cases that came before him. Between Port Cooper and Cloudy Bay I could hear of no anchorage whatever from the whalers who frequent the coast. I arrived at Port Nicholson on September 2, embarked Messrs. Shortland and Stuart, and sailed for the Bay of Islands on September 16.

Much has been said and written concerning this incident, and in the discussion it has been invested with an importance which it does not deserve. In no sense can it rightly be elevated into the crisis of a great international dispute, for the simple and sufficient reason that no dispute existed. Whatever Captain Hobson may have understood as the result of his conversation with Captain Lavaud, the amiable manner in which that officer complied with every request made by Captain Stanley, together with his conciliatory despatch to his own immediate Minister in France, indicate that he at least had no views in the direction of taking forcible possession of any territory in New Zealand, since British sovereignty over it had been officially declared. The pleasure he expressed when he learned that the British Magistrate had determined to remain amongst the settlers; the ready hospitality he extended to him; his refusal to allow the master of the Comte de Paris to land the artillery brought in that vessel; and his promise to do even-handed justice to both English and French should disputes arise, were not the acts of a man who felt that he had been forestalled and worsted in a race involving the sacrifice of new territory and the loss of national prestige.

That Captains Hobson and Lavaud understood each other perfectly is abundantly clear from the letter which the latter wrote to the former over twelve months (September 17, 1841) after the events just narrated. In the month of October 1840 Mr. Robinson, the Magistrate stationed at Akaroa, had intimated his intention of hoisting the British flag, against which Captain Lavaud had successfully protested, as being, in the peculiar circumstances, calculated to inflame the prejudices of the colonists, and to destroy his influence as a keeper of the peace between his own people and the whalers. When Governor Hobson paid his first official visit to Akaroa in September 1841, Captain Lavaud interviewed him and subsequently wrote to him, explaining the incident, and asked that his action might be sustained. During the course of his communication he said:

You have been good enough to promise me that you will give orders to Mr. Robinson that nothing shall be changed in the already established position at Akaroa, upon which we were agreed at the Bay of Islands, until I should receive fresh instructions. I have received nothing since my arrival in New Zealand, but I learned when you arrived that the corvette L'Allier was being fitted out at Brest in February last, to come to relieve me, and would consequently bring the instructions which I now await with so much impatience. This vessel must now soon arrive, and any day I ought to see it make its appearance. From the note of our chargé d'affaires at London, which you were good enough to send to me, I have no doubt as to the recognition by the French Government of British sovereignty over these Islands, and that is all the more reason why I should appeal to Your Excellency to maintain the position we are in to-day, until the arrival of the vessel which will take the place of L'Aube in the protection of the fisheries. My conduct at Akaroa should have sufficiently proved to the British Government that I have no idea of opposing the rights of Her Majesty the Queen of Great Britain to the sovereignty, or in any way impeding it, upon the land. There has been no act on my part, other than with the idea of maintaining order in this place, and preventing friction between the two races. It is not without some trouble and firmness that I have been able, up to the present, to maintain order and satisfy the colonists. I have told them that I have taken all the responsibility upon myself until I receive fresh instructions, and that then I would inform them definitely as to the position in which they would be placed with regard to the British Government. If so soon before the time when my promise should be fulfilled some aggressive action on the part of the British Government were to take place my honour would be seriously compromised. The authority which I exercise over my countrymen has, up to the present, been as advantageous to the interests of Great Britain as to the colonists, seeing that it has only been used for the maintenance of order. More than once I have been asked by the Magistrate appointed by Your Excellency to interfere in a quarrel between some Englishmen and the police who had been driven back and beaten by the first named. The corvette which I command, in giving its protection to the authorities, detained the law-breakers for a few days, and since it was proved that the war-ship was a protection for British authority, order has been maintained. Last October, however, this influence which has been exercised only for good by me, was on the point of being destroyed, when Mr. Robinson announced that he was going to hoist the British flag. Upon representations from me he consented to postpone these proceedings. The following were the grounds upon which I based my objection: The hoisting of the flag in the present state of affairs would add nothing to British rights, the flag having already been hoisted and saluted by the corvette Herald before my arrival. The proclamations in the name of the Queen had quite another effect, as also had the acts and presence of the Magistrate to enforce the British sovereignty. Nothing on my part could have caused the English authorities to doubt in any way the purity and sincerity of my intentions, and of the arrangements between myself and Captain Stanley, to whom I promised that no arms or projectiles of war should be landed. If the British flag were to be hoisted at Akaroa so shortly before the day when I shall doubtless receive orders from my Government to recognise the British sovereignty, the authority which I exercise over my countrymen would come to an end. I should be unable to interfere in any manner whatever on land for the maintenance of peace and order. I should confine myself to my functions as captain of my ship, and should regard myself merely as the protector of my nation's subjects in case of trouble or judicial proceedings, as in the case of all foreign countries where there is no Consul. From such a state of affairs serious evils might result, and before long, so you may be assured from the experience of my fourteen months' sojourn here, consternation and disgust would take possession of the colonists; work would not be proceeded with; there would be widespread drunkenness, and most complete disorder. If on the other hand you may think fit to order Mr. Robinson to await the arrival of my instructions, which certainly cannot fail to be in agreement with the spirit of the note of our chargé d'affaires, in London, you will at the same time prevent the colony being placed in the undesirable position which I have shown you is possible, and you will give me the pleasure of according to your flag, the day it is hoisted, the honours which are due to it, without any disturbance taking place, as I shall inform the colonists that my Government, having recognised the Queen's sovereignty, they must, like myself, submit to the orders I have received.

This letter Captain Hobson acknowledged with becoming courtesy, and promised that as, under existing circumstances, no question could arise respecting the sovereign rights of Her British Majesty over every part of the colony of New Zealand, he would willingly forego the exhibition of any authority that could have a tendency to weaken Captain Lavaud's influence over the minds of his countrymen. He would therefore not display the British flag or publish any proclamation at Akaroa, unless some pressing and unforeseen event should render such measures necessary.[166]

Fortunately no such exceptional circumstances did arise before the formal acknowledgment was made by France, and in the following November Hobson, when penning his despatch to the Home authorities, was able to assure them that Captain Lavaud's attitude had been consistent throughout; that he had frankly disclaimed any national intentions on the part of his Government, but had vigilantly supported the claims of the French emigrants as private individuals. As a matter of fact, since he had satisfied himself as to the validity of Britain's pretensions, Captain Lavaud had taken up the position that he was in these waters for no other purpose than to see his countrymen peaceably settled on the estate of 30,000 acres to which the Nantes-Bordelaise Company believed they had secured a title by one of those loose transactions so common in the history of New Zealand. He was determined to preserve the peace until he should be instructed to make war.

But had his intentions been other than peaceable, Captain Hobson's precautions in sending Magistrates to Akaroa could not have made the British title more secure than it already was. The Treaty of Waitangi was a compact such as no civilised nation could, or would ignore, and when Major Bunbury, by virtue of that treaty, hoisted the British flag at the Cloudy Bay pa on June 17, 1840, he put the sovereignty in the South Island beyond all question of doubt until it could be wrested from Britain by force of arms.

The most that can be said for the sudden despatch of the Britomart to Akaroa, and the proceedings of her Captain and his associates there, is that the presence of British authority on the Peninsula may have prevented the growth of any false ideas concerning national interests in the minds of the emigrants, and so obviated possible friction at a later date. In no sense did it give anew to Britain a right that had already been ceded to her by the only people who were capable of ceding it—the natives. That the official mind of France had no delusions on this point was demonstrated during the discussion which engaged the Chamber of Deputies after the receipt of Captain Lavaud's despatch, when M. Guizot, as Foreign Minister, maintained in the face of the sharpest opposition that the British proclamation read at Cloudy Bay determined by the highest principles known to nations in whom the right of sovereignty lay.

It is both interesting and instructive to observe that during this debate M. Guizot declined to seriously discuss the proclamation issued by Captain Hobson on May 21, declaring the Queen's sovereignty over the South Island, "by right of discovery," although the point was warmly pressed by MM. Billault and Berryer. Captain Hobson had always favoured this mode of dealing with the South Island, he being under a grave misapprehension both as to the number and character of the natives residing there. Before he left England he felt that his instructions were meagre in this regard, and in seeking more explicit direction from the Chief Secretary of State he drew the attention of Lord Normanby to what he regarded as a material distinction between Britain's position in the two Islands. In August (1839) he wrote to his Lordship:

The first paragraph (of the original instructions) relates to the acquisition of the sovereign rights by the Queen over the Islands of New Zealand. Under this head I perceive that no distinction is made between the Northern and Southern Islands, although their relations with this country, and their respective advancement towards civilisation are essentially different. The Declaration of Independence of New Zealand was signed by the United chiefs of the Northern Island only (in fact only of the Northern part of that Island) and it was to them alone that His late Majesty's letter was addressed on the presentation of their flag; and neither of these instruments had any application whatsoever to the Southern Islands. It may be of vast importance to keep this distinction in view, not as regards the natives, towards whom the same measure of justice must be dispensed, however their allegiance may have been obtained, but as it may apply to British settlers, who claim a title to property in New Zealand as in a free and independent State. I need not exemplify here the uses that may hereafter be made of this difference in their condition; but it is obvious that the power of the Crown may be exercised with much greater freedom in a country over which it possesses all the rights that are usually assumed by first discoverers, than in an adjoining State which has been recognised as free and independent. In the course of my negotiations, too, my proceedings may be greatly facilitated by availing myself of this disparity, for with the wild savages in Southern Islands, it appears scarcely possible to observe even the form of a treaty, and there I might be permitted to plant the British flag in virtue of those rights of the Crown to which I have alluded.

A Section of the Treaty Signatures.

To this Lord Normanby replied that Captain Hobson had correctly interpreted his instructions when he limited his Lordship's remarks concerning the independence of the New Zealanders to the tribes inhabiting the Northern Island. His knowledge respecting the Southern Island was too imperfect to allow of his laying down any definite course of action to be pursued there. If it were really as Captain Hobson supposed, uninhabited, or peopled only by a small number of tribesmen in a savage state, incapable from their ignorance of entering intelligently into any treaties with the Crown, then the ceremonial of entering into any such engagements with them would be a mere illusion and pretence which ought to be avoided, and discovery might be made the basis of the Crown's claim. Still he had a marked predilection in favour of a treaty as the only means of affording an effective protection to the natives; "but," he continued, "in my inevitable ignorance of the real state of the case I must refer the decision in the first instance to your own discretion, aided by the advice you will receive from the Governor of New South Wales."

The frankness with which Lord Normanby admitted his "inevitable ignorance" of native conditions in the South Island is in striking contrast to Hobson's confident assurance that they were "wild savages with whom it was scarcely possible to observe even the form of a treaty," for at this time his intercourse with the southern tribes was as limited as that of the Chief Secretary's. Nor was his knowledge of them any more complete when he issued his proclamation on May 21. He was then clearly under the impression that the southern tribes were a people physically, intellectually, and socially much inferior to those whom he had met in the North; in fact, so much inferior that he did not believe them capable of understanding the spirit or the letter of a treaty. Such an opinion could only have been founded upon information conveyed to him at the Bay of Islands, and that by chiefs who, glorying in the pride of conquest, were no doubt wont to look upon their southern enemies as the siftings of the race; as "the remnant of their meal." It is therefore open to doubt whether Hobson ever anticipated any great measure of success when he despatched Major Bunbury to the South, and it is conceivable that the results achieved by that ambassador were as pleasing to the Lieutenant-Governor as the information was surprising that the Southern Island and the southern people had been much misunderstood. The falsity of the impression under which Captain Hobson acted, together with all that had gone before, completely undermines the value of his proclamation of May 21, and M. Guizot was only stating the fact when in answer to his critics he declared in the Chamber of Deputies that "this method of taking possession (by right of discovery) has never had any serious consequences. It could not be regarded as having constituted rights, and that is so true that the English Government has been the first to proclaim it."

The second clause of the treaty proved to be the storm centre of the compact. By those natives who took the trouble to reason out the purpose and effect of the negotiation it was unanimously approved; by the land-jobbers it was as unanimously condemned. Guaranteeing as it did to the tribes the full and complete possession of their lands, fisheries, and forests, it complied with the one condition that made the treaty tolerable to them; yet by reserving to the Crown the right, by pre-emption,[167] to become the medium of purchase between the natives and the settlers, it provided the contentious point upon which all who were interested in the acquisition of land concentrated their attacks. Nor was this opposition shown merely because by a broad sweep of the pen the speculator's sphere of operations had been materially limited for the future, but the hostility became the more vehement because by an equally bold assertion of a great principle of law, the treaty called under review all that they had done in the past. The acknowledgment by the British Crown of the native title to all the land in New Zealand, whether waste or cultivated, was in the opinion of many a blunder grievous enough; but that the Crown should claim the right to scrutinise all titles which had been acquired before sovereignty was declared, was an excess of zeal which they regarded as nothing short of preposterous.

This feeling of indignation was rampant amongst those who were deeply implicated in land speculations when the proclamations were issued at Sydney and the Bay of Islands, declaring null and void all titles which were not derived from the Crown; and their ideas of British enterprise were even further outraged when on May 28, 1840, Sir George Gipps introduced to his Legislative Council, "A Bill[168] to empower the Governor of New South Wales to appoint Commissioners to examine and report on claims to grants of land in New Zealand."

In addition to the gigantic pretensions put forward by the New Zealand Company there were 1200 claimants whose demands upon the soil of the country varied from a single rood to over 20,000,000 acres. Three of these exceeded 1,000,000 acres each; three others were claiming 1,500,000 acres between them; three others comprised more than 25,000 acres each, while upwards of thirty persons expected to be placed in possession of more than 20,000 acres each, the aggregation of alleged purchases amounting to 45,976,000 acres. "Some of these claimants," says one writer, "had nothing more to show for their purchases than an ornamental scrawl on a deed which was so phrased as to be unintelligible to the chiefs who signed it." To reduce these wholesale purchases to some principle regulated by justice was the purpose of the Government; to let the dead past bury its dead was the fervent wish of all those who had entrenched themselves behind Maori signatures.

By the following June 25 the provisions of the Bill had been widely circulated, on which date a spirited protest against its enactment was received from a number of gentlemen claiming to be landowners in the new colony. This document, which was presented to the Legislative Council by Mr. H. H. Macarthur, set out that the petitioners having perused certain proclamations in the New South Wales Government Gazette of January 22, as well as the Bill introduced by the Governor, they submitted that their rights and privileges as subjects of the Queen and as landowners in New Zealand would be unwarrantably and unconstitutionally invaded by the provisions of the said measure. They therefore prayed that they might be heard by the Council in protest against such unjust legislation.

So reasonable a request was readily acceded to by the members of the Legislature, and on June 30 Mr. Busby, the former British Resident, Mr. William Charles Wentworth, Mr. A'Beckett, and Mr. Darvall, barristers-at-law, were introduced to the Council, and on that and several subsequent days addressed the members in opposition to the Bill.

The burden of Mr. Busby's contention in defence of his claim to 50,000 acres, including the site of a township, was that the Bill sought to legalise confiscation, and that therefore the principles which it was designed to enact were at variance with and in excess of all that was sanctioned by the British constitution.[169] No doubt, he said, there were many claims to land in New Zealand which would not bear investigation; but contrariwise there were many respectable settlers on the banks of the rivers and shores of the harbours who would be deeply injured were the proposed Bill to become law. This injury would be all the more ruthless because no attempt had been made by the Government, now become so paternal, to prevent British subjects acquiring property in New Zealand, as had been done in the case of those settlers who had come over from Van Dieman's land to originate the settlement at Port Philip. No sooner did it become known that these speculators had purchased extensive tracts of country from the aborigines than a proclamation was issued declaring the illegality of their proceedings. No such prohibition had, however, been put upon the acquisition of property in New Zealand, where the settlers, relying upon certain acts of repudiation by the British Government, had purchased from the natives in the belief that they were negotiating with an independent people. Mr. Busby proceeded to review the various stages of New Zealand's history in order to emphasise the events by which the independence of the chiefs and people had been repeatedly acknowledged, and concluded by asking why the chiefs had been induced under the Treaty of Waitangi to surrender the pre-emptive right of purchase to the Queen if they had never had the right as an independent people to dispose of their lands as they pleased?

Mr. Busby was followed by Mr. Wentworth, one of the local Magistrates, who was claiming 100,000 acres in the North Island, and practically the whole of the South Island except some 3,000,000 acres which he magnanimously conceded had been already sold to other purchasers. The history of Mr. Wentworth's claim, which to say the least, was one of the most scandalous in the long list of extraordinary transactions with the natives, is thus told by Sir George Gipps in his despatch to the Chief Secretary for the Colonies,[170] in which he intimated that in consequence of the part Mr. Wentworth had played in this flagrant attempt to flout the Government, he desired to withdraw a recommendation he had previously made in favour of this gentleman's appointment to the Legislative Council.

"In the month of February last" (1840), wrote Sir George, "seven[171] chiefs from the Middle Island of New Zealand happening to be in Sydney, it was suggested to me by the persons who had brought them here, and under whose protection they were living, that they should be invited to sign a declaration of willingness to receive Her Majesty as their sovereign, similar in effect to the declaration which Captain Hobson was then engaged in obtaining from the chiefs of the Northern Island. The chiefs in question were accordingly brought to the Government house, and, through the medium of an interpreter, the nature of the document they were required to sign was fully explained to them in the presence of myself, the Colonial Secretary, and several persons who claimed to have purchased land in the Middle Island; and amongst other things it was expressly declared to them that only such purchases of land as should be approved by Her Majesty would ultimately be confirmed. At the conclusion of this conference a present of ten sovereigns was made to each of the chiefs, and they all promised to attend on the next day but one to sign the paper which was to be prepared for them. On the day appointed, however, none of them appeared; and in reply to a message that was sent to them, a short answer was received by one of the Englishmen, under whose protection they were, that they had been advised to sign no treaty which did not contain full security for the possession by the purchasers of all lands acquired from the natives.

"It subsequently appeared that it was by the advice of Mr. Wentworth that they adopted this course of proceeding; and Mr. Wentworth, when before the Council, acknowledged that he had not only given the advice, but also that he had subsequently and after the issue of my proclamation, in conjunction with four or five persons, purchased the whole of the Middle Island (or all the unsold portion of it) from these very natives, paying them for it £200 in ready money, with a promise of a like sum as long as they should live.[172]

"Such was the origin of Mr. Wentworth's claim to twenty millions of acres in the Middle Island," continued Sir George, "and it was the legality and validity of this transaction that he appeared before the Council to defend."

The magnitude of the property at stake naturally excited Mr. Wentworth 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.

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.

Chapter XIII. of the Royal Instructions was devoted to placing into legal phraseology the Minister's policy for "the Settlement of the waste lands of the Crown" and Clause 9 of that Chapter more particularly dealt with the method by which the native titles were to be ascertained and recognised.

(9) No claim shall be admitted in the said land Courts on behalf of the Aboriginal inhabitants of New Zealand to any lands situate within the said islands, unless it shall be established, to the satisfaction of such Court, that either by some Act of the Executive Government of New Zealand as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the right of such aboriginal inhabitants to such lands has been acknowledged and ascertained, or those from whom they derived the title, have actually had the occupation of the lands so claimed, and have been accustomed to use and enjoy the same, either as places of abode or tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life, by means of labour expended thereon.

The newspapers in England which supported the New Zealand Company published with undisguised exultation Earl Grey's Despatch, and hailed him as a Daniel come to judgment.[185] The Maoris regarded the matter in quite a different light. Here they were being asked to submit for ratification, by an extraneous authority, their lands which they and their forefathers had fought for, and which they had ever guarded with a jealous care that only death itself could terminate; lands which they had been told by Captain Hobson and the Missionaries were to be theirs to loose or to hold as they pleased; lands of which the Treaty of Waitangi had solemnly recognised them as already the indisputable owners. Was this then the much vaunted honour of the Queen? was this to be the unhappy end of all her high-sounding promises? The fire of indignation ran through the Maori veins as they contemplated the deception; the rumble of discontent grew as the tidings spread; the breath of battle was in the air.

The position of the Governor was delicate in the extreme, and probably only two things stood at this critical juncture between the colony and war—the Maori confidence in Grey, and Grey's confidence in himself. "What was I to do indeed?" he afterwards said. "My instruction was not alone that of the Colonial Office; but the Constitution had been sanctioned by Parliament. A man's responsibility in the larger sense is, after adequate deliberation, to proceed as he determines to be just and wise. If he has to decide, not for himself only but for others, unto future generations, there lies his course all the more. There was one clear line for me, simply to hang up the Constitution, and intimate to the Home authorities my ideas about it." In accordance with this decision he wrote on August 20 (1847) to his chief, describing with that directness of which his pen was capable the ferment into which this impossible statesmanship had thrown the country.

I have to state to Your Lordship that within the last few days I have received alarming accounts from various quarters of the island regarding the excitement created in portions of the country most densely inhabited by natives, upon the subject of the introduction of the new Constitution into this country, and the steps that may be taken regarding the registration of their lands. I am not yet in a position that would enable me to state whether actual insurrection, upon an extensive scale is to be immediately apprehended; but I cannot entertain any doubt that the country is in a very critical state. I will lose no time in taking such measures as are in my power to quiet the apprehensions which at present exist, and I will also delay for some time the introduction of the proposed Constitution, but I beg again earnestly to press upon your Lordship the advantages which would result from in so far modifying the proposed Constitution as to leave the Governor the power of being able certainly to promise the natives that he will enact any measures which they may request as essential to their interests, and which the Governor may also consider to be absolutely requisite to secure the tranquillity of the country.

A portion of the Governor's measures to "quiet the apprehensions" of the Maoris was to despatch Captain Sotheby, then in command of H.M.S. Racehorse, to visit the northern chiefs, and aided by the ever loyal Waaka Nene he assured them, "on the authority of His Excellency the Governor, that there was no truth in the report that the Government claimed all land not under tillage." Subsequently this officer invited Earl Grey to reflect upon the rapidity with which this report had spread through the North Island, and the dissatisfaction which it had excited, "even in the minds of those chiefs who had hitherto been friendly to the British and who had fought on our side."

From old Te Wherowhero, of the Waikato, came the following characteristic protest to the Queen, whose honour he would not impugn, whose word he would accept:

O Madam the Queen, hearken to our words, the words of all the chiefs of Waikato.

May God grant that you may hold fast our word, and we your word for ever. Madam listen, news are going about here that your Ministers are talking of taking away the land of the Native without cause, which makes our hearts dark. But we do not believe this news, because we heard from the first Governor that the disposal of the land was with ourselves. And from the second Governor we heard the same words, and from this Governor. They have all said the same. Therefore we write to you that you may be kind to us, to your friends that love you. Write your thoughts to us, that peace may prevail amongst the natives of these Islands.[186]

In this dignified appeal the chief was joined by Bishop Selwyn, Archdeacon Maunsell, and Chief Justice Martin in the colony, and by the Wesleyan Mission Committee in England, who employed the searching pen of Dr. Beecham to voice their protest.

How the Bishop regarded the proposals of the Chief Secretary may be judged from the following passage in a letter which he subsequently wrote to his friend, the Rev. E. Coleridge, in England: "If Lord Grey's principles had been avowed by the Governor as the rule of his policy, the safety of the English settlements could not have been guaranteed for a single day."

Archdeacon Maunsell, who in 1840 had informed Captain Hobson that the Missionaries had committed themselves to the promotion of the Treaty of Waitangi only because of their unshaken faith in the integrity of the British Government,[187] was at least entitled to point out that ever since the treaty was signed the conduct of the Maori towards the British had been marked by a spirit of chivalry, of friendship, and of good faith. "Why, then," he asked, "does the statesman of a mighty nation seek to confiscate the guaranteed possessions of our friends and allies?" If such should ever happen, his letter concluded, there could be no alternative but for the Missionaries in sorrow to leave the country, broken and discredited men.

Nor was the kindly, conscientious Martin less emphatic. In a pamphlet, "England and the New Zealanders," he discusses the danger of thus shattering the native confidence in Britain's honour. "In particular," he states, "those who have received Christianity are disposed to look up to us for guidance and government. But let the plan of confiscation or seizure be once acted on, and all this will be at an end. The worst surmises of the natives will have become realities. To them we will appear to be a nation of liars."

The Wesleyan Mission Society embodied their views in a memorial, which they subsequently deemed worthy of publication,[188] wherein they justified their right to question the propriety of Earl Grey's policy, not only because of the prestige and influence of their Mission, but because that prestige and influence had been solicited in the interests of the Treaty of Waitangi by Captain Hobson, at a time when his success without it was impossible. They explained that their solicitude upon the subject had been greatly increased, if not wholly produced by the flood of letters they had received from their Missionaries in New Zealand, expressing the state of alarm into which they had been thrown by the publication of his Lordship's Despatch and Instructions, and which in their opinion affixed a meaning to the Treaty of Waitangi very different from that in which it was understood by the parties principally concerned in its execution. Being apprehensive that any attempt to carry what they regarded as a new interpretation of the treaty into effect, would result in the most disastrous consequences, they were constrained to make such representations upon the subject as they had reason to hope would avert the evils which they feared. They then proceeded to set out that at the commencement of the proceedings adopted by Her Majesty's Government for founding a colony in New Zealand, they distinctly understood that the previous recognition of the independence of New Zealand by the British Government having taken the country out of the category of barbarous tribes and people without a national character or national rights, the ordinary course pursued in colonisation would not be adopted in its case, but that New Zealand would be negotiated with as an Independent State, and that the British Crown would not take anything from the Aboriginal proprietors which was not ceded on their part by fair and honourable treaty. In support of this view, they quoted at length from Lord Normanby's instructions to Captain Hobson, in 1839 and from the subsequent correspondence with him, when that officer sought a greater amplification of important points. On the authority, then, of the noble gentleman formerly at the head of the Colonial Department, they claimed that they were not deceived when they understood that the cession of sovereignty in New Zealand was not to involve the surrender of territory, either in whole or in part; that the cession to the Crown of such waste lands as might be progressively required for the use of the settlers should be subsequently obtained by fair and equal contracts with the natives, and that no lands were to be claimed for the Crown in New Zealand, except such as might be obtained by purchase from the natives, or by their own free consent. They detailed the overtures which Captain Hobson made to their Missionaries in 1840, when, "in accordance with instructions he had received from the highest authority in the realm," he requested their assistance in effecting the negotiation with which he had been entrusted. The Missionaries at this time, the Committee pointed out, had not read Captain Hobson's instructions, for they had not then been published, but they fully understood the claims of the natives upon the soil of New Zealand, and the point upon which they had to satisfy themselves was whether the proposed treaty was designed to admit and confirm those claims in the full and unqualified sense in which they were made. The Missionaries knew that the Maoris claimed the entire soil of New Zealand.[189] They knew that the entire country was divided amongst the several tribes, that the boundaries of every property were accurately defined, and the proprietorship so vested in each tribe that all the members of the tribe had a beneficial interest therein. They therefore knew that at the time the Treaty of Waitangi was signed there was no land in New Zealand without an owner, and which would under the principles of public law, be automatically transferred to the Crown.

"In the view, therefore, of both the Missionaries and the natives," they said, "the sovereignty and the land were two entirely distinct things, and to preserve the latter intact, while they surrendered the former, was the great solicitude of the natives. From Captain Hobson the Missionaries received the most satisfactory explanation of the terms of the treaty. It dwelt explicitly on both the sovereignty and the land, and the interpretation which the Missionaries were authorised to give of it was that, while the entire sovereignty should be transferred to the British Crown, the entire land should be secured to the natives. Most certainly the Missionaries received the fullest assurance that, in surrendering the sovereignty, the natives would not by that act surrender their original claims upon any part of the soil. In this sense the chiefs themselves understood the treaty, as it was propounded to them. They clearly comprehended its two main features as explained in their own figurative style, that 'the shadow of the land,' by which they meant 'the sovereignty,' would pass to the Queen of England, but that the 'substance,' meaning the land itself, would remain with them."

But the Missionaries were not alone the source from which the Committee proved the correct interpretation of the treaty. The witnesses who had given evidence before Earl Grey's own Committee in 1844 were marshalled to their support, the official Despatches were quoted to the same end, even those of Lord John Russell being referred to as "warranting the conclusion that his Lordship designed the treaty should be faithfully observed, in the sense in which it was understood by the natives and Missionaries of both the Church and Wesleyan Societies." To these was added the invaluable testimony of Lieutenant Shortland, who had been in closest association with Captain Hobson during the treaty negotiations, who had been privileged to administer the affairs of the colony under it, and who from his close official connection with it was peculiarly the man able to say what it meant and what it did not mean. Shortly before his return to England, the Select Committee of the House of Commons had issued their report upon "the State of New Zealand and the proceedings of the New Zealand Company," and so completely did that report misrepresent, in Mr. Shortland's opinion, the true position of affairs, so harmful did he deem the resolutions which accompanied that report, that he felt in duty bound to protest to Lord Stanley against the needless perversion of the facts. During a lengthy and dispassionate statement of the circumstances surrounding the procuration of the treaty—than whom no one knew them better—Mr. Shortland, writing from his quiet retreat at Torquay, dealt with especial emphasis upon the relation of the sovereignty to the land:

Respecting the cession of the sovereignty to the Crown by the aborigines without a reciprocal guarantee to them of the perfect enjoyment of their territorial rights, I do not hesitate to say, such a proposition would not for a moment have been entertained by the natives, who, during the whole proceedings of the Government at the first establishment of the colony, manifested a feeling of great anxiety and mistrust in regard to the security of their lands. Of this I could produce many instances did space permit, but will content myself with noticing that the Church and Wesleyan Missionaries possessing, as they deservedly did before the assumption of sovereignty by Her Majesty, the unlimited confidence of the natives, incurred by their aiding the local Government to effect the peaceable establishment of the colony, the suspicion of the aborigines, who frequently upbraided the Missionaries with having deceived them, saying, "Your Queen will serve us as she has done the black fellows of New South Wales; our lands will be taken from us, and we shall become slaves." How then could the colony have been founded with the free and intelligent consent of the native owners of the soil, on any other terms than those laid down by the Treaty of Waitangi, viewed in the light in which it has always been understood and acted on by the local Government.

With these and many similar pieces of unimpeachable evidence did the Committee press upon the Colonial Secretary the conviction that their reading and understanding of the treaty was the only one which its "large words," as Lord Stanley had termed them, would bear. Earl Grey relied upon the astute pen of Mr. Herman Merivale, his new Under-Secretary to release him from the horns of the dilemma upon which the cold reasoning of the Committee had impaled him. This he did by referring the memorialists back to an obscure phrase in the Royal Instructions, which provided that no native claim to land would be recognised unless the title had previously been acknowledged and ascertained, "by some act of the Executive Government of New Zealand as then constituted or by the adjudication of some court of competent jurisdiction." The Treaty of Waitangi was now admitted, and even asserted by the Under-Secretary to be "unquestionably an act of the Executive Government," and therefore it followed that nothing that was guaranteed by the treaty was imperilled by the Instructions. With a wealth of argument upon phases of the issue which were not directly raised by the Memorial,[190] Mr. Merivale was at least able to assure the Committee that the Government intended and always had intended to recognise the treaty, as they believed, in the same sense in which the Committee recognised it. "They recognise it in both its essential stipulations, the one securing to those native tribes, of which the chiefs have signed the treaty, a title to those lands which they possess according to native usage (whether cultivated or not) at the time of the treaty, the other securing to the Crown the exclusive right of extinguishing such title by purchase." Considerable unction was claimed for his chief by the Under-Secretary, in that he had directed Governor Grey to proceed with all circumspection in giving effect to the instructions of the Department, but he failed to observe that even in his widened interpretation of the treaty, he still limited the rights in native lands to those tribes whose chiefs had signed the treaty. Those who like Te Heuheu, and Te Wherowhero had maintained their independence might still have been subject to spoliation had this view become the accepted interpretation of the Department, and those who were keenly interested in the fate of the colony were not slow to place this construction upon it. The immediate necessity for anxiety upon this point was, however, obviated by the prompt suspension of the Charter by Governor Grey, and upon the submission by him to Downing Street of a more liberal and flexible Constitution, drafted upon the slopes and amidst the snows of Ruapehu.

Earl Derby.

Formerly Lord Stanley.

Ere the brewing storm in New Zealand had burst, the crisis had come in the life of Lord John Russell's Ministry, who were defeated on their Militia Bill. They were succeeded by the Stanley of old, who in the person of Lord Derby, became Premier, with Sir John Pakington as his Colonial Secretary. To him fell the duty of giving legislative effect to the more workable and equitable Constitution drafted by Governor Grey, and when the Wesleyan Committee again approached the Colonial Office with the regretful assurance that the reply vouchsafed to them by the noble gentleman who had just vacated the Chief Secretaryship "was less satisfactory to the people of New Zealand than it had appeared to themselves," Sir John was able to convey to them through the Earl of Desart the gratifying intelligence that in the Bill then before the House there was every provision for the full and complete recognition of the principles for which they had so resolutely contended.

Concerning the Third Clause of the treaty, little need be said. By this covenant the Queen undertook, in consideration of the cession of sovereignty and the granting of the pre-emptive right of purchase of land, to extend to the Maori race her Royal protection, and impart to them all the rights and privileges of British subjects. Of the manner in which this undertaking has been fulfilled, the Maoris have never complained, and they have never had just grounds for complaint. There is no colour line drawn against the New Zealander in New Zealand. Our courts are as open to him as to anyone, and whether he be plaintiff or defendant, the same even-handed justice is meted out to him. He travels upon our railways, he rides upon our cars, he sits in our theatres on equal terms with his Pakeha friend. His children are educated in our schools and his sons are absorbed into our Civil Service, his chiefs sit at the Governor's table, and his elected representatives sit in Parliament, where their voice is respected and their vote is valued. The professions are open to him, and there is no position in Church or State which he may not fill. No more is demanded of a Maori than of a European. His passport to society is his good behaviour, his participation of civil rights is governed by his disposition to become a law-abiding citizen.

Only one question now remains to be discussed. In what relation did those chiefs stand to the Treaty of Waitangi who refused to sign it? It has never been contended that all the chiefs were invited to meet Captain Hobson at Waitangi, nor that all were solicited by his agents to sign the treaty, nor that all who were so solicited agreed to affix their signatures to the document. There was a residuum, which included some of the most powerful chiefs in the land, who either had no opportunity of subscribing their allegiance to the Crown, or who for reasons of their own held aloof. How were these non-participants affected by the compact?

This question was first raised in its practical application by Taraia, a Tauranga chief, who in December 1842 committed what is believed to have been the last act of cannibalism perpetrated in New Zealand. Taraia was not a signatory to the treaty, and the Government were sorely exercised as to whether they were justified in claiming jurisdiction over him. An effort had been made by the Aborigines' Protection Society in London to define the status of these independent chiefs, by submitting the question to Mr. Joseph Phillimore, an eminent English lawyer, and Mr. Phillimore had given them a qualified opinion that if there were any chiefs who had preserved their independence by refusing to become parties to the treaty, then such chiefs may not be bound by its obligations, and may be entitled to distinct and separate consideration. But clearly, in an abstract sense, there could be no such qualification to the unaltered status of these men. They were still chiefs of an Independent State so far as they were concerned, retaining inviolate their mana, and refusing to be compromised by the concessions made by their fellow chiefs.

The Government, then controlled by Captain Hobson, did not share even the qualified view entertained by Mr. Phillimore and those who thought with him. They presumed all natives of New Zealand now to be British subjects and determined that Taraia must be punished. This valiant determination was not, however, given final effect, not because the authorities were dubious of its justice, but because they had become uncertain as to its practicability; so much so that they subsequently deemed it prudent to limit their interference to a warning to that chief, that he might expect to incur the anger of the Governor upon a repetition of his offence. In Taraia's case this reprimand was sufficient to quiet him, but only a few months later Tongoroa, another Tauranga chief, made war upon his neighbours, and the sore which looked as though it had healed was suddenly reopened. Lieutenant Shortland, who had now assumed the post of Acting-Governor, proceeded to Tauranga to arrest the disturber of the peace, but before the apprehension could be effected his accumulating difficulties were further increased by an unexpected communication from Mr. Clarke, the chief Protector of the Aborigines, and Mr. Swainson, the Attorney-General. Both these gentlemen had previously endorsed the contemplated arrest of Taraia, but to the amazement of the Acting-Governor they informed him that more mature reflection had caused them to reverse their opinion, and that they now considered the arrest of Tongoroa would be illegal.

Hurrying back to Auckland, Shortland called a meeting of his Council, and there sought some enlightenment as to this new view-point of the Maori status under the treaty. Amongst those consulted was necessarily Mr. Clarke, the erstwhile Missionary, and now Chief Protector of the Aborigines, whose close and constant intercourse with all the tribes gave him the most favourable facilities for gauging the strength and direction of the native aspirations. In the course of his examination Mr. Clarke was asked:

(1) Do the natives who signed the Treaty of Waitangi acknowledge themselves to be British subjects?

To which he replied:—The natives who signed the Treaty of Waitangi, having been solemnly assured by Her Majesty's representative, the late Captain Hobson, that they should in the fullest sense of the term be entitled to all the privileges of British subjects, consented to be considered as such, with a full understanding that their allegiance depended upon the British Government fulfilling their engagements in that treaty.

(2) How far, and to what extent, do the various tribes in New Zealand acknowledge the Queen's sovereignty?

To this Mr. Clarke's answer was:—The natives alone who signed the treaty acknowledge the Queen's sovereignty, and that only in a limited sense. The treaty guaranteeing their own customs to them, they acknowledge a right of interference only in grave cases, such as war and murder, and all disputes and offences between themselves and Europeans, and hitherto they have acted on this principle. The natives who have not signed the treaty consider that the British Government, in common with themselves, have a right to interfere in all cases of dispute between their tribes and Europeans, but limit British interference to European British subjects.

(3) In your communications with the natives, have you asserted that they are British subjects, and the right of the Government to interfere with them as such? and (4) On making that assertion how far has it been acquiesced in?:—In all my communications with the natives I have been instructed to assert, and have always asserted, that they are British subjects, and amenable to British authority, in which very few, even those who signed the treaty, would acquiesce, save in matters relating to disputes or depredations upon each other (viz. differences between Europeans and natives).

(5) If the Government were to admit that any tribe or tribes of New Zealanders were not British subjects, and were not amenable to the laws, what effect do you think that admission would have on the peace and future colonisation of the colony?:—The admission that the tribes of New Zealanders were not amenable to British law, would, I am apprehensive, be destructive to the interests of the natives and the prosperity of the colony. It would be made use of by designing men to embarrass the Government, to embroil the natives with each other and with the Government, which must be alike injurious to both. Her Majesty's Government having seen fit to colonise New Zealand, it is now an act of humanity to both natives and Europeans to consider the whole of the tribes of New Zealand as British subjects, and to use every honourable and humane means of getting the tribes universally to cede the sovereignty where it has not been ceded.

(6) Supposing that we should treat as British subjects, by force, those tribes, who have uniformly refused to cede the sovereignty to Great Britain, should we be keeping faith with the principles we professed when we originally negotiated for the cession of the sovereignty?:—In treating those tribes as British subjects by force who have refused to cede the sovereignty to Great Britain, would not only be considered by the natives as a breach of faith with the principles originally professed when negotiating for the sovereignty, but would, I am apprehensive, lead to a destructive war, and although the result would be destructive to the native race, it would be inglorious to the British Government, and at variance with the designs of Her Most Gracious Majesty in adding this interesting people and country to her Dominions.

From the Protector of the Aborigines who only pretended to interpret Maori opinion as he gleaned it in his progress through their pas and settlements, the Executive turned to their Attorney-General, Mr. Swainson, for his more recent interpretation of the position as it appealed to the trained mind of a jurist, and Mr. Swainson only put into less direct language the pronouncement of Wiremu Tamihana, the King Maker, who during the hey-day of the King movement scorned the authority of the Queen over his land: "I am chief of Ngati-Haua, which is an independent tribe. My father, Te Waharoa, was chief before me. Neither he, I, or any of my people signed the treaty, therefore we are not bound by it." Mr. Swainson's opinion was as follows:

From the evidence given before the Council by the Protector of the Aborigines (Mr. Clarke), it appears that, as I have already stated, there are numerous tribes who have not ceded their sovereign rights to the Queen, and who do not yet acknowledge her sovereign authority. For the reasons already given, I think it would be consistent neither with justice nor with the principles we professed, viz. that we came here to treat for and not to assume sovereignty, to treat those tribes in all respects as British subjects, and to impose upon them our penal code; in this opinion, also, the Protector's opinion coincides. I am also of opinion that so numerous are these tribes, and many of them so distant, that were we disposed to do so we have not the power. At the same time, I am persuaded that the benefits of British protection, and the laws administered by British judges, would far more than compensate the natives for the sacrifice of their independence. These benefits, however, I am equally persuaded, can only be obtained on the voluntary surrender by them of their own sovereign rights, and on their "free and intelligent" submission to British authority. To subjugate them would require a large armed force; but by the employment of persuasion, the influence of example, and the general spread of civilisation among neighbouring tribes, there is ground to expect that they will gradually submit themselves to the operation of British laws. To constantly point out to them the benefits they will derive from doing so, and to impress upon them, to use the language of the Secretary of State, the impossibility of Her Majesty's extending to them an effectual protection unless the Queen be acknowledged as the Sovereign of their country, or at least of those districts within, or adjacent to which Her Majesty's subjects may acquire land or habitations "is the course, I believe, to be most calculated to effect the object of establishing an absolute sovereignty over the whole country."

Though doubtless giving to these expressions of opinion the respectful consideration which was their due, the Acting-Governor decided to assume the responsibility of setting them aside, and following the dictates of his own judgment. To him it seemed that it would be fatally weak to admit in the practical administration of the country the nice line of distinction drawn by the Attorney-General or subscribe to the opinion expressed by Mr. Clarke, "that every honourable and humane means should be used to prevail on tribes to cede the sovereignty where it has not been ceded," as in his judgment this would have been an over-ready admission that they were beyond the pale of the British Crown, and no more effectual means could have been adopted of disseminating the harmful acknowledgment. The troops were accordingly sent to Tauranga, but no arrests were made. Here prudence again prevailed and the officer in charge was instructed only to employ the soldiers "in the general preservation of peace." When these proceedings were reported in due course to Lord Stanley, he warmly endorsed the view adopted by Lieutenant Shortland[191] and as warmly censured Swainson, who was told in the plainest terms that he could not be permitted to entertain the views to which he had given expression, and hold a public office at the same time.

As a matter of abstract reasoning, Lord Stanley was probably wrong, as a matter of practical administration he was probably right, but the correctness of his attitude depended for its success upon the tactfulness of its application. Fortunately New Zealand has, in the main, been blessed with administrators of wide sympathies, and a paternal parliament has generally, though not always given the native race the most indulgent exposition of the treaty. Mistakes may have been made, misapprehensions may have occurred, even technical breaches of the treaty may have been committed, but since the administration of native affairs was handed over to the Colonial Government in 1863 there have been but few instances of flagrant violation of native rights. Prior to this date the care and control of the Maori still vested in the Imperial authorities, even after representative institutions had been granted to the country; and while that condition lasted there was, unhappily, an all too frequent clashing of the two races. With one or two exceptions these conflicts had a common origin in an over-anxious desire on the part of the Europeans to become possessed of native land, as opposed to the deep-founded pertinacity with which the chiefs clung to their ancestral domains. The first of these exceptions was the insurrection of Hone Heke in 1845, which was not in its inception a dispute regarding land, but an undisguised protest against the exercise of the Queen's sovereignty. Land did ultimately play its complicating part in the disruption, but in its initial stages it was the revolt of a volatile man who felt the treaty had carried him further than he intended it should lead him; it was the protest of an ambitious chief who loved notoriety as much as he loved his independence. Heke fell upon what now appears to have been the weak point in Hobson's negotiations; that while he may have, and doubtless did, convey to the natives a clear enough idea of what was meant by the sovereignty of the Queen, he does not appear to have taken sufficient care to explain with any detail what its possible effects might be. Assuredly he was not endowed with such a mental vision as to foresee all that was to happen, nor to conjure up within his mind all the changes that were inevitable in evolving a State from a condition of barbarism to one of civilisation. One thing, however, must have been obvious both to him and to those who were associated with him, that no government could be organised and carried on in a new country without a revenue adequate for all its varied purposes. Under Lord Normanby's instructions funds were to be temporarily provided from New South Wales, but the permanent revenue was to be raised within New Zealand itself, of which a large part, it was hoped, would be derived from the sale of land. Other sources of income in the way of customs duties and taxation in varied forms must also have been in contemplation, but we have no evidence that Captain Hobson ever took occasion to explain to the people that sovereignty would cost them something; that revenue which had been falling into the hands of the chiefs would be diverted into the coffers of the State, and that with the surrender of their independence they must also surrender the levies which they had been making upon the whalers.

It is conceivable that had this surrender of a means to opulence been clearly contemplated by the chiefs as a part of the colonising scheme those at the Bay of Islands would have been the more easily reconciled to it by the natural expectation that even larger sums would be flowing in to them from the sales of land. If these anticipations ever existed they were doomed to disappointment, for instead of entering upon an active campaign of land-buying the Governor suspended the purchases he should have made, and wasted his money on a site for a town, while the rigid enforcement of the pre-emptive right acquired by the Crown closed the market against the buyers of open country lands. This restriction was felt to be not without its element of injustice; for upon a more critical examination of the terms of the treaty it was found that though the Crown claimed the exclusive right to extinguish the native title, nothing had been determined as to the price to be paid or as to the time within which the purchase should be made. Thus, chiefs like Heke, who had been in receipt of substantial sums by way of anchorage money from the shipping found their perquisites appropriated by the State, while they derived no compensating benefit from the sale of land.

The first flush of disappointment which surged within the breast of Heke as he contemplated the unexpected effects of the new power was fed by the angry adventurers and thwarted speculators, who, in their chagrin at the interception of their schemes, had no compunction in inciting him to a course which ultimately led to a declaration of hostility against the Queen and to open war against the Crown.

Not so the Waitara war of 1860, which found its origin not so much in a desire to violate the treaty, as in a blundering endeavour to observe its most important provision. The taking up of arms by Wiremu Kingi was not in its spirit rebellion against the Queen's sovereignty, but a reply to the Governor's attempt to divest him of his rights by insisting upon purchasing land from one whom Wiremu contended could not by any application of native law be constituted the owner. There was on the part of the natives the greatest reluctance to resort to arms, their desire being to test the disputed point of ownership before a properly constituted Commission; but when these overtures were rejected and the Governor held on his headstrong way, they felt there was no course compatible with their high-strung sense of dignity, but to refer the momentous issue to the final arbitrament of war. The story of the Waitara campaign is too well known to need recapitulation here, but in the opinion of many of those skilled in the intricacies of Maori land tenure it was a blunder of the first magnitude, for which Governor Gore-Browne, and not the Colonial Parliament was wholly responsible. If, then, the war was unjust, the confiscation of native land which followed upon the suppression of what was called rebellion was branded with the same injustice.

And just as one wrong perpetuates itself in the form of others, this confiscation has ever since burned deep into the hearts of the Taranaki natives, and led in the early eighties to what is known as the Te Whiti movement. Like his predecessor, Wiremu Kingi, Te Whiti was a much-misunderstood man. For this state of misconception he may have himself been largely accountable, for as a concession to the Maori love of the mysterious he so combined religion with his politics, and dealt so freely in the mystic, that it was frequently difficult to separate intangible prophecy from the things that really mattered in his material policy. But shorn of all its grotesqueness the movement which centred round the Parihaka prophet and his uncle Tohu was not a repudiation of the Treaty of Waitangi, nor was it a revolt against the authority of the Queen. At its base lay the grievance, or the fancied grievance, which was before them every day in the shape of the confiscated lands. There upon the wide Waimate Plains they saw European homesteads whose occupancy was in their eyes a crime against Maori rights. Te Whiti felt he had two things to do. He had to assert his right to those lands, and he had to agitate for justice. He accordingly sent his faithfuls to plough up the fields of the farmers and the lawns of the settlers, in the mistaken hope that he would be able to force the issue before a competent tribunal and there determine who had broken the treaty—the Maori or the Pakeha.

The Government of that day saw things differently. They had no desire to exhume the remains of past mistakes with a possibility of being called upon to repair them at a cost of much treasure and more dignity. They preferred to stand upon the settled policy of their predecessors, and instead of sending a Commission to discover what was at the back of the prophet's mind, they sent troops and took him prisoner. Te Whiti may have been a dreamer, he may have been a babbler of vain things, but he was never a rebel, nor the maker of rebels; but for saying "I love my land" he was legislated into rebellion, and made to appear as a criminal.

In the same way the King movement of 1857 only became rebellion when the Crown made it so. Two primary causes operated to call into existence this political power, the creation of Wiremu Tamihana's[192] genius, which for over fifty years was a potent influence in the Maori life of the Waikato. For upwards of fifteen years the colony had been following with more or less exactitude the terms of the treaty, and during this time the State had exercised its power of pre-emption in a manner which the more enlightened Maoris now began to regard with disfavour. When Lord Normanby despatched Captain Hobson to found the colony he anticipated no opposition to the practice of buying land from the natives at a low price and selling it again to the colonists at a large advance on what the Crown had paid. For a time these anticipations were confirmed by results, but now the fathers of the race, jealous of the rapid increase of the Europeans, and alarmed at the equally rapid diminution of their lands, began to adopt a different view. Rather than part for a few shillings with property which they knew would be sold for as many pounds, they determined to exercise their right under the treaty, and refuse any longer to sanction the large transactions in which they had been engaged with the Crown.

Their eyes, too, had been opened by the Waitara war. Here a single individual had embroiled the whole of the Ngati-Awa tribe in a sanguinary conflict with the Government, by insisting upon selling land to which his title was contested. These unauthorised sales, said the chiefs, must cease, and no individual should, by his avarice, have the power to involve the people in war. To crystallise this determination into a practical act of statesmanship Wiremu Tamihana conceived the idea of a Maori King, who was to be, not antagonistic to, nor a substitute for the Queen, but the arbiter and judge in all internal disputes, as well as the mouthpiece as to land which the tribes as a whole were or were not prepared to sell. "I do not desire to cast the Queen from this Island, but from my piece of land. I am the person to overlook my piece" was how Wiremu Tamihana once publicly stated his attitude towards the Crown. The King movement was thus a Land League and not a rebellion, and as the Maoris had the right to withhold their land from sale if they so pleased, their adherence to this restrictive policy was no more illegal than the establishment of a Trades Union or a Political Association. The movement did not become militant until after the invasion of the Waitara by the British troops, when many of the Waikato natives rose in sympathy with Wiremu Kingi, and the battle followed them back to their gates. Then the authorities began to realise what a compelling truth there was in the maxim of Bishop Selwyn: "Nothing is easier than legally and peacefully to extinguish a native title; nothing is harder than to extinguish a native war."

Worsted, though not disgraced, in the field, the dissatisfied Maoris have since sought to secure the full measure of political justice to which they believe themselves entitled by more constitutional methods. Amongst their dreams has been a native Parliament sitting in the Treaty House, at Waitangi, to approve measures for the betterment of the race, which measures would be afterwards adopted by the Government and given the effect of law. This, however, has been nothing more than a dream. Little better was the Kotahitanga, or union, in 1892, of all the tribes in the north, exclusive of the Kingites who still remained loyal to their monarchal authority. The policy upon which this new union was founded was that of inducing the Government to cease purchasing native lands, and to set aside as a reserve for the benefit of the present and all future Maori generations the considerable areas of native land still unsold. Nor was this all. Legislation had been passed, not specially directed against, but not excepting the native race, placing restrictive conditions upon the oyster fisheries of the country, and this the leaders of the movement held to be a breach of the second clause of the treaty, which guaranteed to them not only the free use and control of their lands and their forests, but of their fisheries also. The deprivation of their right to freely gather food from the sea and the sea-shore was, together with other grievances, sufficient to galvanise them into political activity, and the Kotahitanga was formed with the meteoric Hone Heke[193] at its head. The Native Rights Bill was introduced by him and rejected by Parliament, but the movement was not without its fruits, for in 1900 part of their purpose was achieved in the concessions made by the Government in the Native Land Administration Act and the Maori Councils Act.

With the accomplishment of these aims, and the early death of Heke, the Kotahitanga has failed to preserve its former vitality; but brief as was its career, it must be recorded of it that in its inception and activities it was, as most Maori movements have been, not an organisation designed to aid in the evasion of the treaty, but rather to insist upon the due observance of its contracts.

Few Legislatures in the world have had a more difficult task than has fallen to the lot of that of New Zealand in legislating for the Maori so as to preserve his nationality, his rights, his liberties, and yet not bar the progress of the European state. That it has been embarrassed times without number by the treaty is undoubted, and therefore it is the more to its credit that the diplomatic bargain which has now held good for the better part of a century should have been so little violated. The treaty has been the broad foundation upon which the intricate structure of native legislation has been reared through all these years; and if there has ever been as there must have been under changing conditions trespass upon the strict letter of the compact, it is safe to assert that this variation has only occurred when Parliament has been honestly satisfied that the wider interests of the State as a whole demanded the departure. At no time has the Legislature been callously unmindful of the true spirit of the treaty, or careless of the great trust imposed upon it as the guardian of native rights.[194] This commendable endeavour to observe that "justice which is the paramount interest of all men and all Commonwealths" has finally led to a universal acceptance of the treaty by the native race as the basis of their civil and political privileges. So far is this the fact, that to-day the Maori is more insistent upon a due observance of its covenants than is the European. The present generation of natives accept it unquestioningly; and long before the "Old Guard" of objectors had passed away they, too, were beginning to realise that the sacrifice of their independence was more than compensated for by the protection of the British flag. They felt the irresistible sweep of the white tide that had surged upon their shores, and much as they might regret the passing of their ancient mana, they were compelled to acknowledge the force of truth in the figurative statement of their diminishing power once propounded to them by Mr. Busby: "How can the little pebble dam the stream? how can the single tree stand against the storm?"