Chapter VII.
Sovereignty.

Perhaps it is possible to bestow a little sympathy upon the man who had set his heart upon his project, who had worked for it for years, who had laboured it with infinite care, and now saw it ruined, as he thought, by the weakness and lack of courage on the part of others. This meed of commiseration might well page 277be given him, but it was obvious he was fighting in a lost cause. The star of his fortune had waned, never to shine again.

The reports of the representatives of the two countries had by that time reached their respective Governments. Captain Lavaud had written to his Minister, "The position has greatly changed since my departure from France." He had outlined those changes: he had told the story of Governor Hobson's arrival; of the Treaty of Waitangi; of the voyage of the Herald; of Hobson's proclamation of 21st May; and, above all, of Major Bunbury's proclamation of sovereignty over the South Island on 17th June at Cloudy Bay. The significance of these happenings he had impressed upon his Minister, and then reminded him that "If on my departure from France Your Excellency could have seen the position in which I find myself at present, you would have sent me off with different instructions from those I have; you would not have let the Comte de Paris sail, and you would not have left to me the choice of war or peace."

Captain Hobson, on the other hand, had by exhaustive despatches explained his proceedings to the British Colonial Office. He had traced his negotiations with the natives for a treaty, his securing the cession of sovereignty under the treaty negotiated, his proclamations in page 278support of that cession, and his assumption of active administration—all of which acts were prior to the arrival of the French colonists, who may have purchased land, but who certainly had not acquired sovereignty.

On receipt of this report Lord Stanley, the Chief Secretary for the Colonies, gave a general page 286approval to its conclusions, and sent it on to Lord Aberdeen, at the Foreign Office, with a recommendation that the French Company should be dealt with on the same principle as if it had been a British company, and that they should be invited, as a preliminary step, to prove the extent of their claims, with an intimation that their claims to such extent as proved would be allowed in the Northern Island, and that no difficulties would be placed in the way of their naturalization. He also suggested that the French Government should be advised of the line of policy Britain proposed to adopt.^*

The announcement that the British authorities intended to pursue this equitable and liberal policy towards the French settlers was received by official circles in Paris with the greatest gratification, and tended materially to soften any feeling of irritation that might have remained as the result of Britain's diplomatic victory. It was not so with every section of the Press, the journalistic malcontents still seeking to inflame public opinion against what they chose to regard as the unscrupulous tactics of Britain. "Is there anything more monstrous, more contrary to the rights of nations, than what has just happened in New Zealand?" asked Le Constitutionnel; and that journal was not alone in harbouring these ungenerous sentiments.

To these doctrines of peace and prosperity he had staunchly adhered, much to the advantage of France; and when it fell to his lot to investigate, in his country's interests, the question of British sovereignty in New Zealand he saw no reason why he should depart from them—he refused to allow his calmer judgment to be swayed by the storm of national jealousy. He took the trouble to read the British parliamentary papers, he read the letters of Captain Lavaud to the Minister of Marine, and when the attack came in the Chamber of Deputies he was prepared for it.

Although perhaps somewhat anticipating events, it will be as convenient to describe here as elsewhere what then took place.

In the session of May, 1844, M. Guizot, as Minister of Foreign Affairs, asked for a vote of 600,000 francs for what was known in French politics as "extraordinary missions." The request for this appropriation brought to page break

M. J. B. Eteveneaux.
With model of French Blockhouse,

page 289his feet M. Berryer, the leader of the Legitimist party in France, one of the acknowledged orators of the Chamber, and a man who had endured prison for his principles. Mounting the tribune, this advocate, of international fame,^* proceeded to attack the Government, using as his weapon a strange mixture of historical fact and fiction.

M. Berryer said he did not agree with M. de Carné, that France should not seek to extend her influence beyond certain limits. He thought that it behoved her to give the world an adequate idea of her power, in order that her nationals might be certain of meeting protection and commanding respect wherever they might direct their steps. He then presented an historical account of the operations of the French in Oceania since 1827. New Zealand was the first point that attracted their attention. Its coasts offered greater advantages for fishing than the northern shores of the Pacific; the islands afforded the most abundant resources for the Navy; the position was in every respect inviting for the establishment of a French station, a coal-mine having been discovered in the island, Admiral Du Petit-Thouars, Captain Cécile, and Captain Langlois, of Havre, visited it in 1838. The latter concluded in that year a treaty with the native chiefs, who abandoned their rights to a portion of the Southern Island to M. Langlois, as representative of France. The latter, having returned to Europe, submitted the treaty to his Government, by whom it was approved, and Captain Lavaud was sent with powers, signed by three Ministers, to take formal possession of the grant.

^* The French Deputy is acknowledged to be one of the leading men in France, and his opinions have great weight not only in that country, but throughout Europe.—The Times, 30th May, 1844.

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The chiefs, on the return of Captain Langlois, put him in possession of the territory thus ceded, in August, 1840. In the meantime, however, an English company had contracted with some chiefs of the North for the cession of a certain extent of territory, and Captain Hobson was sent thither in January, 1840, from Port Jackson, in the capacity of Lieutenant-Governor. The latter established himself in that portion of New Zealand. The French were at the time in quiet possession of their grant in the South, and Captain Langlois had actually taken possession of it in the name of France, when Captain Stanley arrived from the North, and in his turn, and on 14th August, took possession of it as belonging to Queen Victoria. Our Cabinet had recognized the frivolous argument of the right of possession by the discovery of Captain Cook. This was intimately connected with the affair at Tahiti. The check received at New Zealand was a grave one, and it was necessary to repair it. In 1840 Admiral Du Petit-Thouars had formed one of the Committee appointed to examine the demand of Captain Langlois. He had been in 1838 at the Marquesas, and had caused the wrongs suffered by the French whalers to be redressed. He obtained what he required by writing to Queen Pomare in very determined terms. In the beginning of 1841, when the account of what had taken place at New Zealand had arrived, Admiral Thouars, in order to seek for something to make up for the loss sustained there, set out to take the Marquesas and to assume the protectorate of Tahiti. The determination to abandon, without compensation, New Zealand to a jealous rival produced this mission of the Admiral's.

M. Berryer then proceeded to detail the circumstances attendant on the taking possession of Tahiti in the name of France, referring particularly to Queen Pomare's application to the Queen of England and the displaying of the Tahitian flag.

What ought Admiral Du Petit-Thouars, pursued the hon. member, to have done under those circumstances? He ought evidently, according to his instructions, to seize on the islands, and he did so. Thus the power of France was at last established at Tahiti, and within eight months after that event Queen Pomare would be informed of the disavowal of the Admiral's act, and the Moniteur, with its disastrous words, would be thrust under M. Du Petit- Thouars' nose by some English subject. (Excitement.) It was said that there were men who endeavoured to envenom everything. For his part, he was proud of the sentiments which actuated his heart at that moment. His conscience was tranquil, for it obeyed thoroughly French inspirations. (Approbation on the left.) It was because the Cabinet had misunderstood the interests of France as well as her dignity that he accused it. He fully approved the idea of sending diplomatic missions to the remote parts of the globe, because it was indispensable that the French flag should move and command respect on all seas, and that France, which was a commercial and maritime nation, should possess a station in Oceania for the protection of her trade and the revictualling of her merchant navy; but he could not help expressing his disapprobation at the abandonment of her acquired rights over Otaheite (Tahiti), because the occupation of that archipelago by France gave umbrage to a rival Power. Admiral Du Petit-Thouars had acted in conformity with the instructions he had received in 1838 and 1840, and he (M. Berryer) could not see how it was possible for the Government to justify the disavowal of the Admiral. The perseverance of the administration in its system of concession was visible, he said, in the conduct at New Zealand and Otaheite (Tahiti); it was the natural consequence of the policy that had characterized the previous policy of the Cabinet in Turkey and Egypt, which had been marked by a shameful condescension to the page 292dictates of England. Far from him the idea of involving his country in war, but he thought the Ministry might preserve to France the advantages of peace without any danger of war, by pursuing a more dignified policy, and not always yielding to the exigencies of England.

M. Guizot, the Minister of Foreign Affairs, having risen to reply, said he conceived the violence of the attacks directed against the Administration was the right of the Opposition, as acknowledged by the principles of constitutional government; but he could not conceive that it should stoop to the perversion of facts in order to substantiate its charges. He had been accused of having appropriated larger sums than his predecessors to diplomatic missions. Now he held in his hand a document which proved that during the three years that preceded his accession to power, the credits applied to that purpose had exceeded by 2,000,000 francs those expended for the same object during the three years of his administration. He then proceeded to justify the various items of the required credit, and mentioned the important advantages that the country had derived from such missions.

At this point the Chamber went off into an excursion about St. Domingo, and the debate turns from the particular subject of New Zealand to the general question here involved.

When members were prepared to get back to the main point at issue M. Guizot drew attention to the fact that there were two Proclamations which had an all-important bearing on the subject as to when British sovereignty was declared over New Zealand. The first of these bore the date of the 21st May, and the other of the 17th June, both being anterior to the arrival of Captain Lavaud.

Of these, he said, he had carefully read only that of 17th June, relative to the taking possession of the Southern Island. Here is the English text. I translate literally:—

"Taken possession, in the name of Her Most Gracious Majesty the Queen of the United Kingdoms of Great Britain and Ireland, of the Southern Island of New Zealand.

"This Island, with all the woods, rivers, ports, and territory, having been ceded in sovereignty by different independent chiefs to Her Most Gracious Majesty, we have taken solemn possession of it," &c.

A great number of signatures follow.

I repeat it, gentlemen, this is the Proclamation of the 17th June, the only one I have attentively read.

M. Billault: My recollections are different from those of the Minister; but the important point was this: to know if England had a treaty with the natives which permitted her to take possession. Now, this treaty did not exist in May, 1840, since the Proclamation of that date speaks of taking possession in virtue of the right of discovery. What is remarkable is that the English word that signifies "ceded" is in the singular and not in the plural.

M. Guizot: But in English the particles have no plural; the words corresponding to "cede" and "cedes" are written and pronounced the same.

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M. Billault: I do not pretend to know better than the Minister the finesse of the English language. (Murmurs.)

Many voices: There is no finesse in that.

M. Billault: But there is something more serious than this distinction of singular and plural.

The same members again reply: Good faith!

M. Billault: I demand of you, if England had held a treaty for both Islands, would she have appealed to the right of discovery? Evidently when she invoked a doubtful right it was because she had not an indisputable one. Captain Lavaud himself has said that England has no other right to the Southern Island than the pretended right of discovery, and from that time it would be easy to bring England back to the taking of possession. That is what the letters of Captain Lavaud say, letters which have not been produced to us. Therefore you are wide of the truth when you say that the treaties were there paralyzing your action. Treaties! There are no treaties. This is what the policy of the Foreign Office reduces itself to in this affair. It has displayed enormous patience and talent, finally to arrive at what?—to make the policy of England triumph. England is continually gaining territory, and there are no complaints made on this side of the Channel. But France is possessed of her fleet, which has been provided by the increased millions voted on the proposition of my honourable friend M. Lacrosse; and yet when an account is demanded of that fleet, what do we find? Simply this: that England assumes over all the points of the globe the rank which ought to belong to France, and to do everything that suits her pleasure. You are careful to call your adversaries the "war parties," and the English, who perfectly understood this language, know that from you war will not come, and that they can gratify their sweet will without fear. During three years you have availed yourselves of page 299the phantom of 1840, and in this case you would use it again. But for Cabinets, as for men, the dead do not return. Of this policy of 1840 you, sir, the Minister of Foreign Affairs, have been the most important agent, and you have not abandoned this policy till recalled by the telegraph. In all these questions you begin by combating the opinions of the Opposition, and you finish by rendering a forced homage to the wisdom of its Councils. The cancelling of the treaty was war; the Opposition wished for this cancelling, and it is said you are on the point of obtaining it without war. You think to manage this alliance (with England) against the day when you shall want it; your conduct leads to the contrary effect. You habituate her to being exacting, and on the day in which your positions will be difficult you will have her no more.

M. Berryer: As to what concerns New Zealand, I have said that the English had had no treaty with us; that there was no taking possession previous to ours. To prove it I depend on one document; the Minister has produced another, the possession of which, I believe, is new to him. But I maintain what I have said—two English Proclamations have been issued by the Government. The first has for its object the taking possession of the Northern Island in virtue of treaties concluded with the native chiefs. The same day a similar Proclamation declares the taking possession of the Southern Island by virtue of the right of discovery. It is therefore very evident that on the same day possession was taken of two different territories. I add that on the 12th of August the owner, on board the Comte de Paris, accompanied by another vessel, commanded by Captain Lavaud, renewed the act of cession before any cession had been made to the English; well, immediately after the departure of Captain Lavaud the English raised their flag by virtue of an Act posterior to a pretended cession of which there is no proof.

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M. Guizot: The Chamber will understand that I shall not enter again into a discussion of details in this matter. I repeat that the document that I have read is of the 17th June, 1840; that it is printed in the same collection of papers published by the English Parliament in which are contained all the other papers to which reference has been made. The document is dated, and it explicitly contains this phrase:"That the colours of Her Majesty had been hoisted."

M. Berryer: They did not remain there.

M. Guizot: I certainly cannot acknowledge that I have not read, and that I do not possess, the document, which is printed with all the others in the parliamentary papers. (Excitement.)

M. Thiers: I demand to be heard.

Several members: To-morrow! To-morrow!

M. Thiers: If the Chamber wishes to adjourn till to-morrow, there are still three speakers to be heard.

The Chamber rose at six o'clock, and the discussion was adjourned till the following day.

When the Chamber resumed next day the debate was directed to Tahitian affairs, and New Zealand was not again mentioned.

It will now be convenient to return to the British Office of Foreign Affairs, and from this point rapidly trace the steps that were taken to determine the legal status of the French colony at Akaroa.

On 25th July, 1842, Lord Aberdeen sent out instructions to Acting-Governor Shortland that effect was to be given to the decision of the Government by holding an investigation into the French claims, with a view to page 301reaching a final settlement. Of the proposed investigation M. de Belligny was duly notified. Shortland entrusted the important task to Lieutenant-Colonel Godfrey^* and Major M. Richmond, who had been appointed Commissioners for such purposes, under the legislation of the colony. So slowly did events move in those days that between the issue of the Imperial instructions and the sitting of the Court more than a year had elapsed.

When the Commissioners and their interpreter, Mr. Edward Shortland, arrived at Akaroa to open their Court they were unable to procure a vacant house for a residence during their sojourn in the settlement. They were accordingly about to erect a tent, which they had brought to meet such an emergency, when Captain Bérard came to the rescue and insisted upon their occupying the "pavilion" of Captain Lavaud, which he himself used when on shore duty. This little attention to the comfort of the visitors was greatly appreciated by them; the more so when seated by a blazing fire on wet stormy nights, for it was still the season of winter, with snow on the lofty hills, though fortunately it never descended to the sea-level.

We had heard before, says Mr. Shortland, that it would be difficult to procure provisions at this place, and had purchased a stock of preserved meats, which could be obtained at a moderate price at Auckland and Wellington. And we had cause to be glad we had done so, for we found all articles of food scarce, even potatoes, the European and native population not being large enough to cultivate sufficient for themselves and the crews of the numerous whaling-vessels which put into this harbour.

On 22nd August, 1843, the day appointed for the opening of the Court, nearly the whole of the population—French, British, and native— assembled at an early hour in front of the "Admiral's house," and before noon the native section was largely augmented by a party from the northern shores of the Peninsula, headed by Iwikau, a chief upon whose aid M. de Belligny greatly relied to counteract the still-discontented residents of Akaroa.

The general anticipation was that the hearing of the case would be a stormy one, and Captain Bérard, and several of his officers, a little afraid of a disturbance, watched the proceedings anxiously. Fortunately these anticipations were not realized, and the meeting terminated in a peaceable and orderly manner. The native evidence, though obtained with some difficulty, ultimately disclosed that all parties were reasonably unanimous as to the facts.

After ten days consideration of this evidence the Commissioners forwarded to the Acting- Governor a report which left matters very much where they found them. Shortland was at a loss to know what to do, and so took page 310the safe course of sending the report to Lord Stanley with a request for further instructions, at the same time remarking for his Lordship's edification, "The Peninsula itself is a most valuable locality, and Akaroa is one of the most important harbours, and stations in the Island, if not absolutely the most important."

Report of the Commissioners appointed to
examine and report on claims to grants of
Land in New Zealand.

Report on Nanto-Bordelaise Company's Claim.

The Commissioners have the honour to report, for the information of His Excellency the Officer Administrating the Government, that from the accompanying evidence taken in this claim to "all Banks Peninsula, in the Middle Island of New Zealand, with the exception of the Bay of Hikuraki, Oihoa, on the south, and Sandy Beach, north of Port Cooper, on the north, are the boundaries," the supposed contents 30,000 acres.

It appears that no deed or memorandum to Captain Langlois, through whom the claimants derive, has been proved to have been executed by the natives in the year 1838, nor has any native evidence been produced of the contract for this purchase having been made in 1838; but George Fleuret, a European, deposes to his belief that an agreement was then made by Captain Langlois for the purchase of some quantity of land from the natives.

No deed has been exhibited to the Court in proof of the transfer made by Captain Langlois to the Company, but such a transfer of his interest may be assumed from the evidence of M. S. de Belligny. The native chiefs Iwikau, Tuauau, Tikao, Parure, Nga Mana, and page 311others have admitted the sale to Captain Langlois in August, 1840, of the following portions in Banks Peninsula:—

In the Port of Akaroa: From Point Tikao to a stream called Kaitangata, and extending backwards to the top of the adjacent mountains; probable contents, about 400 acres.

At Pigeon Bay, Port Levy, and Port Cooper: Portions called Pohue, Ka-kongutungutu, and Kohaihope; contents unknown, but the boundaries of these tracts can be pointed out by the natives.

These natives state that they sold these portions of land to Captain Langlois. Upon his second arrival in the Peninsula, when accompanied by the emigrants, which appears from the evidence of Messrs. S. de Belligny, J. M. Cebert, and George Fleuret to have been at Pigeon Bay, on the 9th August, 1840, and at Akaroa upon the 16th August, 1840.

They admit to have received, as payment for these lands, the goods, &c., stated in the deed of sale, amounting to the value of £234 sterling.

This payment is proved to have been made a few days after the above-mentioned dates by the evidence of J. M. Cebert and G. Fleuret, the latter of whom deposes also to having seen Captain Langlois give some clothing to a native named Chigary and others at Pigeon Bay in the year 1838.

The natives have likewise declared that they consented, in August, 1840, to sell their interests in larger tracts of land in Banks Peninsula to Captain Langlois for a further consideration of cattle and goods promised to them by him, but which they have not received, and they expressed their readiness still to dispose of any lands not required for themselves.

It has been admitted by the same natives that a chief named Taiaroa possesses a common right with them in portions of Banks Peninsula.

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Tu Hawaiki, a native chief, opposes this claim on the part of himself and the chiefs Patuki, Taiaroa, and Karetai, on the grounds that they did not consent to the sale or receive any payment; at the same time, he states their willingness to alienate their rights for a consideration.

Statements to the following effect have been exhibited to the Court by M. S. de Belligny, the agent of the claimants:—

(1)	Setting forth the claimant's engagement with sixty-three French emigrants.
(2)	The clearing and cultivation of 107 1/60 acres by the said persons.
(3)	The expenditure by the claimants in the transport and maintenance of these emigrants sent out by them have been strictly performed, and the Court has also been satisfied of a considerable outlay in making roads, bridges, and improvements.

This claim having been referred for special examination by His Excellency the Officer Administrating the Government, and a copy of a letter from the Right Honourable the Earl of Aberdeen, Her Majesty's Principal Secretary of State for Foreign Affairs, dated 28th July, 1842, having been exhibited to the Court, in which it is declared that Her Majesty's Government purpose that the claim should be dealt with similarly to those of a British company, the Commissioners do not adjudicate upon it according to the practice hitherto adopted towards individual claimants who have made or completed their purchases of land after the Proclamation issued upon the 14th of January, 1840, by His Excellency Sir George Gipps, forbidding the acquirement of lands from the natives of New Zealand after that date, and consequently, in the opinion of the Commissioners, page 313rendering the completion of all such contracts null and void. But, considering the peculiar circumstances of the case, the Commissioners, without offering a decided or specific recommendation upon it, have confined themselves to a recapitulation of all the evidence they could obtain relating to it.

Dated at Wellington, this 21st day of October, 1843.

Edward L. Godfrey.

M. Richmond.

This report, almost negative in character, the Acting-Governor transmitted to Lord Stanley on 15th November. At first blush it appeared to assist the Minister little; later it looked as if it might be worthless. It was then discovered that, though the report was signed by both Lieutenant-Colonel Godfrey and Major Richmond, only Godfrey was present when the native evidence was heard. This, in the opinion of the Minister, bade fair to invalidate the whole inquiry, necessitating a fresh investigation, involving delay and further expense. Fortunately, Lieutenant-Colonel Godfrey had reached England almost as soon as the report, and the Minister, availing himself of this fact, placed before that officer a quantity of additional evidence which in the meantime had been submitted to the Government by the Nanto-Bordelaise Company. The consideration of this evidence enabled Godfrey to come to an individual decision upon the question, and in a supplementary report to the Minister he declared that, in his opinion, page 314a purchase was made by Captain Langlois of a certain quantity of land on Banks Peninsula, but that its actual extent was not known with sufficient accuracy to enable a grant to the land to be issued under the seal of the colony.

The Company's nomination as its representative in the colony fell, naturally, upon M. de Belligny; but when Governor Grey, pursuant page 316to instructions, proceeded to Akaroa in March, 1848, to continue the negotiations on the spot he discovered that gentleman had left the country three years before and proceeded to France, personally to hold a much-needed conference with the principals of the Gompany. In these circumstances the Governor could do nothing, and nothing was done.

In the meantime, unknown to the authorities in New Zealand, negotiations had been in progress between the Nanto-Bordelaise Company and the New Zealand Company for the purchase by the latter of the former's New Zealand interests. For a period everything appeared to be progressing satisfactorily, until the arrangements were suddenly suspended by the militant attitude of Captain Langlois, who strenuously objected to his friends parting with what he regarded as a rich and great estate. Anticipating a permanent suspension of the negotiations, the New Zealand Company then approached Earl Grey, who had succeeded Lord Stanley at the Colonial Office, pointing out that the impossible position into which the French Company had drifted was a menace to colonization, insomuch as they were monopolizing all the best harbours on the east coast of the South Island. Before Earl Grey could act on these representations the negotiations for the purchase of the Nanto-Bordelaise Company's interests were unexpectedly resumed. The Company had gone page 317into liquidation, and the necessity for further proceedings was superseded by the completion, on 30th June, 1849, of an arrangement under which the official liquidateur of the Company had sold to the New Zealand Company, for the sum of £4,500, its "entire property and interests in New Zealand."

So terminated the comparatively brief life of the Nanto-Bordelaise Company, the last of whose colonists who set out from France in 1840—Joseph Libeau—died only in 1919.^*

It is also believed in by a large number of people, some of whom maintain its accuracy with great sincerity, some with not a little asperity. It will therefore be profitable to examine the questions as impartially as one may, with a view to arriving at the facts.

To enable the reader unfamiliar with the subject the better to appreciate its vital features, it will be necessary to recapitulate some of the facts established in New Zealand's history. In August, 1839, Captain William Hobson, R.N., was sent out to New Zealand by the British Government, with the rank of Consul, and with instructions to negotiate with the Native chiefs a treaty under which they would cede to Her Majesty Queen Victoria their sovereignty, in return for which they were to receive from the Queen protection as British subjects. This treaty was negotiated at Waitangi on 6th February, 1840, and, so far as the North Island is concerned, it became effective on the following 21st May.

As has been seen by his declaration in the Chamber of Deputies, the French Minister of Foreign Affairs was no more disposed seriously to regard this Proclamation than was Captain Lavaud, and had the British claim rested solely upon the "right of discovery" it is practically certain that the whole aspect of the situation would have been changed. Fortunately, Britain had another and a less assailable title page 320to the South Island than the Proclamation of 21st May. The lion that lay in the path of France was the Treaty of Waitangi.

The chiefs of the South Island were approached for their signatures to this treaty by Major Bunbury, of the 80th Regiment, duly commissioned for that purpose by Captain Hobson, who had now assumed the title of Lieutenant-Governor. Major Bunbury proceeded in H.M.S. Herald to the principal native settlements on the east coast of the South Island. He went first to Akaroa, where two important signatures were obtained, and then as far south as Stewart Island. Here, finding no population, possession was again taken on the doubtful ground of "discovery." At all the other places visited the treaty was explained and signatures of chiefs obtained. On his return journey northward Major Bunbury, on 16th June, 1840, found himself at Cloudy Bay, on the coast of Marlborough, then by far the largest native settlement in the Island. Here he obtained the signatures of all those of rank sufficient to qualify them to append their names to the document. Having obtained these, Bunbury, after consultation with Captain Mas, of the Herald, decided that "it would be advisable at once to proclaim the Queen's authority over the Island, as the most effective means of preventing further dissensions among the natives and Europeans."

The reading of the Proclamation done, the Union Jack was run up by Captain Nias, and the guns of the Herald began to boom forth a salute of twenty-one guns, which was returned by the Royal Marines firing a feu de joie. The yards of the frigate were manned, and the cheers of those grouped round the flagstaff were answered by those on board the man-of-war, the echoes from the surrounding hills being reinforced by the approving shouts of the natives.

The ceremony performed by Major Bunbury and Captain Nias, witnessed by five American, one French, and one Bremen whaling-vessels, was a constitutional act, "correct" in its every particular. From this time forward the South Island of New Zealand was an integral part of the British Empire, and no civilized Power would seriously dispute the fact.

Major Bunbury reached the Bay of Islands on 4th July, and made his report to the Lieutenant-Governor. At midnight of the 10th, as we have seen, L'Aube, the French frigate, commanded by Captain Lavaud, entered the harbour. The ostensible purpose of Captain Lavaud's coming—the protection of the French colonists and the French whalers—has already been made clear in the previous pages. It has, however, always been thought there was another purpose, which has never been placed plainly before the world. The sense of mystery in which Lavaud's coming has been surrounded has resulted in much misconception, and in the widely accepted assumption that he was possessed of instructions forcibly to annex a part, if not the whole, of the South Island.

Hitherto this phase of the subject has been rendered obscure to the historian by the removal from the French official file of the actual instructions given to Captain Lavaud by the Minister of Foreign Affairs. Fortunately this obscurity has now been considerably lessened by the discovery of Admiral Duperré's letter of 29th December, 1839, in which he discusses with Marshal Soult certain aspects of these instructions.

In that letter the Minister of Marine lucidly sets forth the whole scheme as it presented itself to the French Cabinet, and discloses what page 324he states to be the "real intentions" of the Government. There was to be no general annexation of the South Island in the name of the French King, but such territory as was to be occupied was, in the first place, to be acquired by the Nanto-Bordelaise Company by purchase from the natives. So soon as it was definitely their property it was to receive the protection of the French flag. In return for the services rendered to the Company by the State, one-fourth of the Company's estate was to be handed over to the Crown, to be used for such purposes as the Crown might think fit. Whether, supposing the scheme had not miscarried, a penal settlement would subsequently have been established on Banks Peninusla will never be known, because, while that proposal had quite evidently been discussed, no decision had been reached before the débâcle came.

When L'Auhe left France the French Government, not dreaming of international complications, believed the Nanto-Bordelaise Company had acquired, through Captain Langlois' deed, an unencumbered option over Banks Peninsula, the purchase of which would be completed by Langlois, jun., upon the arrival of L'Aube at Akaroa. This done, in the name of the King possession of that portion of New Zealand would have been taken by Captain Lavaud, and the French flag would have flown at Akaroa, as the "point of creation." Clearly, it was con-page 325templated that from this "point" additional purchases would be made by the Company; new settlements would be established along the coast, and concurrently and progressively the power and influence of France would be extended not by the founding of a great new colony, but by the establishment of "stations" where her ships could resort and where her nationals might be certain of meeting with respect and protection. This was a marked reversal of the British policy, which holds that "trade follows the flag." In the case of France the flag was to follow trade.

Upon the principles underlying this scheme the Minister of Foreign Affairs and the Minister of Marine were in entire agreement, but they momentarily differed upon the details as to whether it was advisable to expose the flag to insult by flying it at every unprotected settlement, and whether it was wise to guarantee to the natives living outside the French spheres of influence protection for their lives and property.

Quite obviously, then, the French Government was participating in the scheme not for the purpose of annexing the South Island, but for the purpose of aiding a commercial enterprise not altogether devoid of national interests. The return which the State was to obtain in the way of land ceded to it by the Company page 326was but a natural provision which any sane Government might make to ensure the preservation of its dignity and the proper discharge of its responsibilities.

When Captain Lavaud arrived at the Bay of Islands nothing of this, however, was known to Captain Hobson, any more than Lavaud knew what had been happening in the quest for British sovereignty. Both men were equally in the dark as to the other's actions and intentions, and their first meeting must have been interesting to watch, the Governor trying to find out what the Frenchman was going to do, the Frenchman seeking to discover what the Governor had done.

In the course of their conversations certain explanations were made, but neither could be sure just how much it was safe to let the other know. As the days went on, and the position clarified somewhat, there is reason to believe the discussions became more frank, and that before L'Aube left the Bay of Islands Lavaud realized that British sovereignty was an accomplished fact, and Hobson was convinced he could rely on Lavaud's assurances that he contemplated nothing in the nature of "national intrusion." Lavaud's statement that before he sailed for the south "Mr. Hobson was delighted to take steps allaying the absurd rumours which were circulating in Kororareka, and which were of a nature to disturb the Government of the page 327colony, in supposing me to have orders and instructions which I did not have," is a reasonably clear indication that he had by this time told Hobson what his actual instructions were.

That, however, could scarcely be said to be the position when, earlier in the week, Hobson decided to send the Britomart to Akaroa. Up to that time the atmosphere was so charged with suspicion that he was justified in being apprehensive of "foreign influence, and even interference." He had no reason to fear for his own position, but he was in duty bound to leave nothing to chance—to make assurance doubly sure. He saw the wisdom of having a Government de facto as well as a Government de jure. For that reason, and that reason alone, he despatched the Britomart, with two Magistrates, to Akaroa, there to make British authority a living force before the French arrived.

Out of this situation two questions of historical importance arise: (1) Was the Britomart sent to Akaroa to proclaim British sovereignty over the South Island? and, (2) Was there a "race" between the British and French ships?

This paragraph reveals vividly what was in Hobson's mind, and is the logical sequence of the opening sentence of his instructions. In these instructions, then, we have the clearest outline of what was to be done. The " proceedings " of Major Bunbury were not to be duplicated, for the indulgence in any second such ceremony could have no effect other than to cast doubts upon the validity of the first. Stanley's duties were to be nominal. He was, if necessary, to be in possession; he was to exercise a general supervision, but the real business of the mission was to rest on the Magistrates who accompanied him. They were to hold Courts, not as an act of sovereignty, but as an act of " civil authority"; not as a proclamation of sovereignty, but as an assertion or affirmation of sovereignty already proclaimed. That is all that was authorized; that is all that was done, and nowhere can any official or authoritative account to the contrary be found.

Had it been a question of proclaiming sovereignty under stress of being before the Frenchmen, as it sometimes is said to have been, Captain Stanley would never have gone page 332to Akaroa at all. Sovereignty proclaimed at one point of a country is as good as sovereignty proclaimed at another point, so that it be done in a manner consistent with the principles of international law. In these circumstances the nearest point for Stanley to reach would have been the best.

Instead, therefore, of persisting in driving on to Akaroa in the teeth of a storm, he would have put the Britomart into the first accessible harbour, which would have been Queen Charlotte Sound, Tory Channel, or Cloudy Bay. There he could have proclaimed sovereignty just as effectively as at Akaroa, and saved several precious days. It was because he was taking Magistrates south to open Courts, not to proclaim sovereignty, that he went to Akaroa, which place was selected because there was a considerable British population in the neighbourhood; it was there L'Aube and the Comte de Paris were going, and it was advisable that the assertion of authority should take place in the face of the French.

It was because the business of the mission was the opening of Courts that whatever was done was done on the 11th August, and not on the 10th. It will be noted that the Britomart reached Akaroa at 4.30 on the afternoon of the 10th, but beyond erecting a flagstaff and sending a bellman round the village page 333Captain Stanley took no action till next day. To a declaration of sovereignty such delay might have been fatal; in the case of opening Courts it was both necessary and unavoidable, since notice to prospective litigants must be given. Would Stanley have sent a bellman round the village to announce that he was about to proclaim sovereignty, since that is an act which for its success depends upon the promptitude with which it is performed? Would Stanley have jeopardized this larger issue by waiting till next day, when there was ample time to perform the ceremony on the afternoon of his arrival? In the smart officer he was known to be, such circumlocution and negligence are improbable. If his duty was to see that Courts were opened, then it is understandable.

Captain Stanley in his report to the Governor is entirely silent on the subject of sovereignty. Is it reasonable to suppose that had he been entrusted with so vital a mission he would have omitted to advise the Governor of its failure or success? The log of the Britomart, too, is silent on the subject, but the writer has the assurance of naval authorities that had the ship taken part in such a ceremony it would undoubtedly have been written up in the log. Here is the entry in the log of the Herald describing the proceedings at Cloudy Bay on the previous 17th June. If one ship should be at page 334pains to record such an event, it is difficult to understand why another ship in the same service should ignore it altogether.

June 17. P.M. at 2. The Island called Tauai Poenanmoo or Middle Island of New Zealand situated between the Meridians 166° and 174°.30' East of Green'ch and 40°.30' and 46°.30' South parallel with all the Bays Rivers Harbours Creeks etc. in and all the Islands lying off having been ceded in Sovereignty by the several native Independent chiefs to Her Most Gracious Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland the said Island was accordingly taken possession of and formally proclaimed and Her Majesty's colours hoisted at the Paa of Showhaka Cloudy Bay under a salute of 21 guns on the 17th day of June 1840 by Captain J. Nias Comm. of H.M.S. Herald and by Major Thomas Bunbury K.T.S. 80th Regt. who were commissioned for that purpose which was returned by the Royal Marines firing a feu de joie.

British sovereignty was not proclaimed at Akaroa by Captain Stanley on 11th August, 1840, because, in the light of Major Bunbury's proceedings at Cloudy Bay on the previous 17th June, it was not necessary to do so. Secondly, it was not proclaimed because Captain Stanley was not specifically commissioned for that duty. On the contrary, he was instructed that "any further proceedings," such as those adopted by Major Bunbury, " would not be necessary."

If a proclamation of sovereignty had been made at Akaroa by Stanley, what has become of the document? Hobson was careful to preserve the documents he issued in May and page 335June: why so careless of one in August? Speaking in the Chamber of Deputies four years later, M. Guizot frequently refers to the proclamation of H.M.S. Herald, but never once does he refer to one sponsored by the Britomart at Akaroa. This reticence is due to the fact that such a proclamation was unknown to him, because it was not printed in the British Bluebooks. Its absence from that authoritative source of information is perhaps the most convincing proof of its non-existence.

Here, then, according to Lavaud, the Herald, and not the Britomart, is in the foreground of the picture, and the Magistrate is there to enforce, not to proclaim, British sovereignty. So clear a declaration from one so directly interested is testimony of great value, and it page 336is for those who hold that possession was taken at Akaroa to explain why Captain Lavaud so constantly and pointedly refers to the ceremony of the Herald and so consistently ignores the later proceedings of the Britomart.

He then goes on to refer to the destitute condition of the colonists on their arrival and other incidents connected therewith, but makes no reference to a declaration of sovereignty by the Captain of the Britomart. It is therefore clear that Lavaud did not report to him that any such incident was part of the British proceedings, yet it is inconceivable that an officer of Lavaud's capacity would report the steps taken to " assure " the Queen's sovereignty and forget to mention the proclamation of page 337that sovereignty itself, had the two events been contemporaneous. To account for this omission we have to assume that a mind always well balanced had suddenly lost its normal equipoise, and was featuring a minor event to the complete neglect of the major one.

It is further to be noted that the first conversation between Captains Stanley and Lavaud upon the latter's arrival at Akaroa is recorded, but the subject of sovereignty is not referred to. Is it probable that had Stanley been sent specifically to do such an important act as the proclaiming of sovereignty he would have omitted officially to advise his rival of what had been done, since the act could have no other purpose than to outmanoeuvre the Frenchman? Such a lack of frankness is not like a British officer.

The sheet-anchor of those who maintain that sovereignty was proclaimed at Akaroa is a diary, or an alleged diary, kept by Mr. C. B. Robinson, the British Magistrate. He arrived at Akaroa with the Britomart and was an eyewitness of all that passed. It is claimed that for this reason his account of what happened is first-hand and unimpeachable. Primarily the thing to be noted in connection with this evidence is that the document itself is not now available. All we have of it are extracts made and published without the virtue of originality.

In the light of these inconsistencies and contradictions of fact Mr. Robinson's "diary" is worthless as a piece of evidence, and offers no solution of the problem.^*

The modes by which one country may acquire territory in another country are well defied by international law, and "cession" is one of them. What, then, was done under the Treaty of Waitangi was in accordance with all that could be demanded of Britain. The modes by which sovereignty is proclaimed over newly acquired territory are not so well defined, but what is of vital importance is that, in whatever manner the ceremony is performed, it must be "an undoubted act of the Central Government, speaking on behalf of the State." To ensure this condition modern usage demands two things—(1) that the officer performing the ceremony shall be "specially charged with the duty of making a particular acquisition," and (2) he shall read "a Proclamation setting forth the intention of the Government to take the territory in question as its own."

Acting on these established principles, the best service the advocates of Akaroan sovereignty can render to their cause is not to quote Mr. Robinson's "diary," but to produce (1) Captain Stanley's commission authorizing him to proclaim sovereignty, and (2) the Proclamation which they allege was read by him on 11th August, 1840.

Reluctant as one must ever be to destroy a charming romance or to crush a cherished belief, with so much official testimony against the contention that sovereignty was proclaimed page 343at Akaroa on 11th August, 1840, and with so little to sustain it, the urgency of accuracy and the logic of truth demand that our history should be no longer encumbered by such misleading legends, and that this story of Akaroan sovereignty shall be relegated to the realms of historical myths, notwithstanding that it is twice supported by monumental authority.^*

The facts as disclosed in the foregoing pages are not as the poet saw them nor as tradition states them, but that the Britomart left the Bay in full view of L' Aube and that Captain Stanley had already informed Lavaud that he was going. It is true a certain amount of finesse was indulged in regarding her destination, but there was none regarding her departure. At the same time, Lavaud shrewdly suspected what was happening, and there is little doubt that he knew definitely before he left the Bay of Islands. He certainly made no attempt to follow the Britomart, for he remained at the Bay for five days, sailing late on the afternoon of the 27 th. It is known that the Britomart met with bad weather and took nineteen days to do the trip.

L' Aube, a much, larger and better-found ship,^* did it in the same number of days, after waiting four days outside the Heads. Even if we concede that the weather had somewhat moderated before L'Aube was on her way south, it is quite obvious that the larger and better-found ship would have made moderate weather of what to the smaller vessel was a "stormy passage," and that had there been a real contest of speed L'Aube would have easily outsailed her opponent.

Lavaud's proceedings were altogether too leisurely, both before and after he reached Akaroa Heads, to suggest anything in the nature of a "race" in which he was an eager participant. For this the explanation has been offered that there were then in France two political parties, one of whom favoured colonization, the other did not, and that Lavaud's sympathies were with the latter. That may or may not have been a contributing factor, but, whatever his reluctance to make port, the fact remains he had neither a real nor an assumed desire to reach Akaroa before the Britomart. For that, and for no other reason, L'Aube was several days later than the British ship in arriving.

Lavaud's own narrative is somewhat obscure upon the point, but he seems to imply that at his final conversation with Hobson the Governor told him where the Britomart had gone. That was why he smiled at Captain Stanley's excuse for being there. By that time Lavaud had quite made up his mind what his line of action was to be. He had no delusions as to his position. He saw that any attempt to prosecute "national pretentions" in the way of taking possession meant war with Britain, and he was determined to act sanely and not precipitate such a catastrophe between two civilized countries. Captain Lavaud was a perfectly honest man. He impressed Hobson as such, and all his letters bear the impress of his integrity. It has therefore puzzled many people how he could page 351so quickly and so repeatedly assert that he was in New Zealand waters for no other purpose than to protect the interests of his countrymen. Knowing what we now know, it is not difficult to trace the working of Lavaud's mind. He knew that the Nanto-Bordelaise enterprise was more commercial than national; that the State's share in it was, after all, comparatively small, and that the Ministers of the day were not deeply concerned even for that. He further saw that the State's share, at least, was completely negatived by the proclamation of British sovereignty. Once having recognized that this sovereignty was a fact and must be respected, the opportunity peacefully to take possession, even to the qualified extent provided for in his instructions, had gone. He further judged that it was not the intention of his Ministers that he should make war in order to carry out instructions given him in complete ignorance of the facts as he found them. He therefore took the responsibility, grave as he may have considered it to be, of abrogating those portions of his instructions which were nullified by the new conditions, and, having abrogated them, so far as he was concerned they did not exist. It was therefore with perfect sincerity he made the declaration that he was not in New Zealand waters for the purposes of national intrusion, a declaration supported by all his subsequent actions. His statement was nothing but the page 352simple truth, and his was a very just epitome of the position when he wrote to his Minister: "If on my departure from France Your Excellency could have seen the position in which I find myself at present, you would have sent me off with different instructions from those I have; you would not have let the Comte de Paris sail, and you would not have left me the choice of war or peace."

Map of
South Island
showing principal Native blocks purchased