FOOTNOTES

[156] "One cannot but laud the moderation of the English Puritans who first established themselves in New England. Although provided with a charter from their Sovereign, they purchased of the savages the land they required to occupy. This praiseworthy example was followed by William Penn, and the colony of Quakers which he conducted into Pennsylvania."—Vattel.

[157] The real discoverer of New Zealand was probably a Polynesian.

[158] Stowell in his Maori-English Tutor thus defines mana:

Surely as much power as is possessed by any crowned head, and more than is possessed by some.

[159] For some years after the treaty was signed the red blanket was considered amongst the Maoris the hall-mark of distinction, and no chief who had not received the "treaty blanket" was admitted to the select circle of their counsels.

[160] The Kohimarama Conference was summoned at Auckland in July 1860, by Governor Gore Browne, "to afford an opportunity of discussing with him various matters connected with the welfare and advancement of the two races dwelling in New Zealand." It was attended on the opening day by 112 chiefs from all parts of the country, and next to the meeting at Waitangi in 1840 is the most important native conference ever held.

[161] "When casuists afterwards strove to qualify the terms accorded to the Maoris, the words tino rangatiratanga foiled them. Tino is an intense expression of fulness, comprehension, and precision, and rangatiratanga included all the rights of chieftainship."—Rusden.

[162] In 1841 a Mrs. Robertson, her two children, and a half-caste were murdered at the Bay of Islands by a native named Maketu. The case was heard at the first Criminal sitting of the Supreme Court in New Zealand, presided over by Chief-Justice Martin, and was watched with the keenest interest by the natives.

[163] Writing on this point to Lord Stanley in a letter dated Torquay, January 18, 1845, Lieutenant Shortland remarks: "I was present at the several meetings of the natives at Waitangi, Hokianga, and Kaitaia for the purpose of considering the treaty, and the impression on my mind at the time was, that the subject was fully understood by them, and they were quite aware of the nature of the transaction in which they were engaged. I was so impressed with this idea, and so struck with the shrewdness and intelligence of many of their remarks at the first meeting at Waitangi, that at the subsequent ones I noted down the speeches of the chiefs, which all serve to show that the natives not only understood the treaty, but that they were peculiarly sensitive with regard to every question affecting their lands."

[164] The question of the title to the lands claimed by the Nantes-Bordelaise Company was not dealt with by the New Zealand Land Claims Commissioners, and became the subject of protracted diplomatic negotiations with the French Government. Finally, in 1845, Lord Stanley directed the issue of a grant for 30,000 acres. This area was afterwards sold to the New Zealand Company, and on the surrender of its charter the unsold portion became the property of the Crown.

[165] These two vessels were crossing the line when Captain Hobson took possession of the North Island by virtue of the Treaty of Waitangi.

[166] Vide his letter to Captain Lavaud, September 20, 1841.

[167] In his judgment in the case, Regina v. Symonds, delivered in 1847, the late Mr. Justice Chapman laid it down that the pre-emptive right to buy was not limited to the "first refusal," but consisted in the right to buy before all others: i.e. that the Crown enjoyed the exclusive right of extinguishing the native title.

[168] The Bill was passed on August 4. It enacted that all titles to land in New Zealand were to be absolutely null and void except such as were, or might be, allowed by the Queen. The Governor was to appoint commissioners to examine and report on all claims to grants of land which might be referred to them by him. They were to be guided by the real justice and good conscience of the case. Certain lands, those reserved for the site of a town or village, for purposes of defence, or any other public purpose, were not to be recommended by the Commissioners for grants, but compensation in the shape of other lands might be arranged. The claimant had to prove that he had made a purchase, and there was to be some relation between the quantity of land granted and the sum expended on its purchase, but as a general rule no claimant was to receive more than 2560 acres.

[169] Mr. Busby laid off a portion of his property on the bank of the Waitangi River as a township, which he dignified by the name of Victoria. Here he marked off streets, squares, and reserves for public buildings, the lots being sold to Sydney speculators and settlers at Kororareka at the rate of from £100 to £400 per acre. Over seventy years have elapsed since then, but the great city which was to be is still unsubstantial, rude boulders are its cathedrals, and the cabbage palms wave over its empty market-place.

[170] Despatch to Lord John Russell, August 16, 1840.

[171] Amongst these was Tu Hawaiki, the Otago chief, who afterwards signed the treaty at the request of Major Bunbury.

[172] "In consequence of the animadversions made by me in Council on this proceeding of Mr. Wentworth, and particularly of my having said that he had, in my opinion, exposed himself to a prosecution for a conspiracy, Mr. Wentworth has thought proper to resign his commission as a Magistrate, and (to use his own expression) to separate himself entirely from any official connection with my Government."—Vide the above Despatch, August 16, 1840.

[173] "The more completely Lord Normanby admits the right of the chiefs to the sovereignty and soil of New Zealand the more fully must he rely on the third principle upon which I have said this Bill is founded, namely, that Englishmen cannot found colonies without the consent of the Crown, and can obtain no titles to lands in colonies but from the Crown."—Extract from Sir G. Gipps' speech.

[174] For a further exposition of this point the reader is referred to what has been called the "classic" judgment of the late Mr. Justice Chapman in Regina v. Symonds, 1847.

[175] In November 1840 Lord John Russell entered into an agreement with the Company, by which they were to become entitled to select out of the extensive domain claimed by them one acre for every 5s. they could prove they had expended upon colonisation in New Zealand. A Mr. Pennington, a London accountant, was appointed to discover what the Company's expenditure had been. He reported that they had expended, as far as could be ascertained, the sum of £200,000, which on the basis of the arrangement entered into would have entitled them to select, approximately, 1,000,000 acres. This the Company asserted to Lord Stanley was a final determination of their rights, and that they were ipso facto entitled to the land. Lord Stanley, however, held that the Company still had to show that they had lawfully and equitably extinguished the native title over this area, and that for this purpose their land must come under investigation by the Commission. The correspondence is embodied in the Parliamentary papers of the period.

[176] Both sides of the Committee appear to have disregarded Major Bunbury's proceedings, not because they had no constitutional value, but probably because they were not sufficiently posted in the facts.

[177] In October 1845, Governor Fitzroy wrote to Lord Stanley: "I cannot believe that those most dangerous resolutions of the House of Commons (Committee) in 1844 respecting unoccupied land, can be adopted by Her Majesty's Government, but if such should be the fatal case, the native population will unite against the settlers and the destruction of the colony as a field for emigration must result."

[178] Vide his letter to Archdeacon Henry Williams, November 11, 1845.

[179] Governor Hobson died at 12.15 A.M. on September 10, 1842, at Auckland. Amongst a large section of the Northern Maoris the belief was current that he had been makutaed (bewitched) by an old tohunga (priest) at a banquet, the tohunga being instigated by the section of natives who were opposed to the treaty.

[180] In the previous debate Sir Robert had said: "If ever there was a case where the stronger party was obliged by its position to respect the demands of the weaker it was the engagements contracted under such circumstances with these native chiefs."

[181] Vide his Ordinance of March 26, 1844. For an able justification of this measure the reader is referred to Mr. George Clarke's Final Report, 1846, the manuscript of which is in the Hocken Collection at Dunedin. The pre-emptive right was finally abrogated in the Native Land Act of 1862.

[182] Vide his Despatch to Lord Stanley, December 10, 1845.

[183] In this he was further assisted by the fact that Mr. Hawes, who had been prominent with him in the interests of the New Zealand Company, became his Under-Secretary, and Mr. Buller became Lord-Advocate.

[184] For a critical analysis of Earl Grey's policy at this period, the reader is referred to L. A. Chamerovzow's work, The New Zealand Question, 1848.

[185] One writer declared that, "by Earl Grey's Constitution the humbug Treaty of Waitangi is very properly laid on the shelf." Another referred to it as "sweeping away all the Treaty of Waitangi nonsense."

[186] Te Wherowhero, who had refused to sign the Treaty of Waitangi, was greatly influenced by Governor Grey, and this petition is interesting as showing that the chief was beginning to recognise the sovereignty of the Queen as the accepted order of things.

[187] "As was anticipated, the chiefs would not enter into the treaty without the advice of their religious instructors. The Wesleyan chiefs said, in effect, to their Missionaries: 'We do not know the Queen of England, but we know you, and can trust you. If you say that the British Government speaks true about the land, we will believe you, for we know you will not deceive us.' The Society's Missionaries, understanding that the primary object of the British Government was to throw the shield of protection over the New Zealand people, and believing that the measure proposed was the best for preserving the natives from the evils by which they were threatened, could not hesitate to assure their people, that, when once the faith of the British Government was pledged, it would be maintained inviolate."—Vide Wesleyan Mission Committee's Letter to Earl Grey, 1848.

[188] Correspondence between the Wesleyan Missionary Committee and the Right Hon. Earl Grey, 1848.

[189] In a letter received at the Mission House after the Committee's Memorial had been prepared, the Rev. Thomas Buddle, writing from Auckland, on July 3, 1847, remarked in reference to lands having no native claimants: "No such lands have yet been discovered in this Island. I question much whether there is an acre that has no owner." The testimony of other Missionaries in the same direction, was, the Committee asserted, "clear and express."

[190] It is instructive to observe that the treaty is no longer described as "what has been called the Treaty of Waitangi," as it was in Earl Grey's Despatch, but is now spoken of with respect by Mr. Merivale as "The Treaty of Waitangi."

[191] "I do not think it necessary or convenient to discuss with Mr. Swainson the justice or the policy of the course which the Queen has been advised to pursue. For the present purpose it is sufficient to say Her Majesty has pursued it. All the territories comprised within the Commissions for the Government of New Zealand, and all persons inhabiting those territories, are and must be considered as being to all intents and purposes within the dominions of the British Crown."—Vide Lord Stanley's Despatch to Acting-Governor Shortland.

[192] William Thompson, son of Te Waharoa, known as the King-maker.

[193] A grand-nephew of the chief who led the war of 1845.

[194] The confiscation of Taranaki lands following upon the Waitara war might be held by some to be an exception to this rule, but that would depend upon the view taken of the justification for the war. The breaches of the treaty, real or alleged, which have occurred in connection with the Waitara war and since, have been vigorously stated by Mr. G. W. Rusden in his Aureretanga, published in 1888.