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.