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A compendium of official documents relative to native affairs in the South Island, Volume One.

[No. 9. Mr. Somes to Lord Palmerston]

No. 9.

Mr. Somes to Lord Palmerston.

New Zealand Land Company's Office, Adelphi, 7th November, 1839.

My Lord,—

In the absence of the Governor of the New Zealand Land Company, I, as Deputy Governor, and on behalf of the Board of Directors, have the honor to address your Lordship on a subject of much national importance, which belongs to the Foreign Department of Her Majesty's Government.

If your Lordship is not already aware of the fact, it is proper that I should inform you at the outset that the Colonial Office refuses to hold any communication with, or in any way to recognize, the existence of the New Zealand Land Company. We are totally at a loss to conjecture for what reason. The Company has been formed in the usual manner, possesses a paid-up capital exceeding four-fifths of the capital subscribed, and has complied with every other condition of a joint-stock copartnership. Its existence as a Company is not less certain and complete in law, as well as in fact, than that of the Bank of England or any private firm; yet the Colonial Department seems to deny our existence, even to the extent of corresponding on subjects relating to the copartnership, by letters addressed to individual partners at their private residences, as if the consent or recognition of that Department were necessary to the existence of a joint-stock partnership in this free and commercial country. We imagine, of course, that the Colonial Department is extremely hostile to the objects for which the Company was formed.

But even on this point we are left in some doubt, inasmuch as Lord Glenelg, when Secretary of State, offered to some of us a royal charter of incorporation as a company for colonizing New. Zealand; and his successor, Lord Normanby, recently expressed to a deputation from our body, of which I was one, his Lordship's great satisfaction at finding that the colonization of New Zealand had been undertaken by such a body of gentlemen as those who compose the direction of the Company. Indeed, I pretend to explain nothing to your Lordship. My sole purpose in alluding to the subject here is to make sure that you should be acquainted with the footing on which this Company stands with another branch of the Executive Government.

Notwithstanding these facts, I am under the necessity of addressing your Lordship as the organ of a legally constituted and undeniable Company. My object in so doing is respectfully to call your Lordship's attention, as Her Majesty's adviser on foreign affairs, to the question of the sovereignty of the Islands of New Zealand.

We are assured that this question engages the attention of various commercial bodies, and of a large portion of the public press in France; that the sovereignty of England in New Zealand page 20 is denied; that the French Government is urged either to join in that denial, by protesting against the colonization of the Islands by England, or to claim an equal right with England to plant settlements there. We are not without fear that some such protest or claim should be admitted by your Lordship's Department, as it appears to have been admitted by the Colonial Department; and we are therefore desirous of laying the following statement before your Lordship.

It appears that the agitation of this question in France has been produced by the publication of a Minute of the British Treasury, made at the instance of the Colonial Department, and bearing date the 19th of July last, and also of an extract from certain instructions recently given by that Department to Captain Hobson—two documents by which the Crown of England seems to repudiate the sovereignty of New Zealand. The apparent repudiation consists of an acknowledgment of sovereignty in the Native chiefs, from whom Captain Hobson is instructed to procure, if possible, a cession thereof to Her Majesty. It is this acknowledgment, according to all our information, which has given occasion to the pretensions now urged in France. That which England, it is contended, instructs her officer to procure, if possible, she admits that she does not possess, and she thereby admits the right of France either to obtain sovereign jurisdiction in New Zealand by the means which Captain Hobson is directed to employ, or, if France should prefer that course, to sustain the independent sovereignty of the Natives. The argument appears conclusive. It becomes very important, therefore, if it is of great importance to England to prevent the establishment of a French power in the midst of the English colonies of Australasia, that your Lordship should be made aware of the acts of the British Crown, which lead to a conclusion directly at variance from that which may be drawn from the said minute and instructions.

The sovereignty of England in New Zealand has been over and over again asserted and exercised. Whether it could be subsequently abandoned by such documents as the Treasury minute and instructions is a question in constitutional and international law on which your Lordship is, of course, far more competent to judge than we can pretend to be. But that there recently was a British sovereignty, either to maintain or to abandon, we have no sort of doubt.

In the year 1769, Captain Cook, acting under a commission from the Crown of England, took possession of the Islands of New Zealand in the name of His Majesty George the Third. This act was performed in the most formal manner, and was published to the world. We are not aware that it was ever questioned by any foreign Power. It constituted sovereignty by possession. The law of nations, we believe, recognizes no other mode of assuming dominion in a country of which the inhabitants are so barbarous as to be ignorant of the meaning of the word sovereignty, and therefore incapable of ceding sovereign rights. This was the case with the New Zealanders, from whom it would have been impossible for Captain Cook to have obtained, except in mockery of the truth, a British sovereignty by cession. Sovereignty by possession is that which the British Crown maintains in a large portion of its foreign dependencies.

In the year 1787 a royal commission was granted to Captain Philip, appointing him, in pursuance of the British sovereignty in possession which had previously been established by Captain Cook, "Captain-General and Governor-in-Chief in and over the territory of New South Wales and its dependencies." This territory was described in the commission as "extending from Cape York, latitude 11° 37' south, to the South Cape, latitude 43° 30' south; and inland to the westward as far as 135° east longitude, comprehending all the islands adjacent in the Pacific Ocean within the latitudes of the above-named capes." This is the act by which the Crown first assumed the government of New South Wales and the other barbarous lands of which Captain Cook had taken possession in the name of the King. The Islands of New Zealand are as clearly within the prescribed limits as Norfolk Island, Van Diemen's Land, or even New South Wales itself.

On the 9th of November, 1814; the Governor and Captain-General of New South Wales and its dependencies, acting on the representation of the Crown, by public proclamation declared New Zealand to be a dependency of his government, and, by regular commission of dedimus potestatem, appointed justices of the peace to act there. Some of the magistrates so appointed were aboriginal natives of the country. It is plain that they were treated as British subjects. In 1819, again, Governor Macquarrie appointed an English magistrate in New Zealand. This justice of the peace exercised the authority so bestowed on him, by apprehending offenders and sending them for trial to the seat of Government.

In 1823, a British Act of Parliament (4 Geo. IV. cap. 97) extended the jurisdiction of the Courts of New South Wales to New Zealand by name, and also to other places in the Southern Pacific not within the latitudes previously mentioned. Under this authority several persons, we understand, have been tried in New South Wales for offences committed in New Zealand; and we have been informed that property in New Zealand, as well real as personal, has been made the subject of the bankrupt law of New South Wales.

The authority of the British Crown was frequently enforced by means of ships of war. And, although it cannot be asserted that regular government was ever established in New Zealand, far more than was essential to creating a British dependency seems to have been performed.

The Islands thus continued in the state of a dependency until the year 1831, when a series of proceedings commenced by which the sovereignty of Britain may perhaps have been forfeited. An officer was appointed to reside at the Bay of Islands. He presented to certain Native chiefs, as from the Crown of England, what was termed "a National Flag." This might have been considered a transfer to these chiefs of the British sovereignty, if the Resident had not been "accredited" to certain officers of the Church Missionary Society, then settled at the Bay of Islands. By the latter Act, the sovereignty of the Islands would almost seem to have been transferred to these missionaries.

But in October, 1835, this diplomatic agent assembled certain Native chiefs residing in the northern part of the North Island, called them a confederation, and sanctioned a declaration of Native independence, to which their names were appended.

This last act appears, by all accounts, to have been a mere mockery of its ostensible purport. The tribes of New Zealand are so entirely distinct, so utterly destitute of nationality, as to have no name for the whole country which they inhabit. A national name was invented for this occasion—the words "Niu Tireni," which express the Native pronunciation of the English words "New Zealand." The page 21 only parties besides to the so-called declaration of independence were the chiefs of a few tribes then inhabiting a small part of one of the Islands. These even, inasmuch as their language contains no words to express nationality, sovereignty, or independence, must have been unconscious instruments of the Resident, or of the missionaries to whom that officer was accredited, as if they had been the sovereigns of New Zealand. If, indeed, the sovereignty was delegated to the missionaries, they could, being British subjects, have held it but as trustees for the Crown. If the sovereignty of the Natives was then acknowledged, it extended only to the small part of one Island inhabited by the parties to the declaration. And, in either case, this mockery of an independent sovereign nationality has been set at naught by the power in whose name it took place, inasmuch as the jurisdiction of British law, and the armed authority of British ships of war, have been exercised since, in the same way as before, the Bay of Islands declaration of independence.

I beg leave to assure your Lordship, in the name of my colleagues, that we intrude on you with the greatest reluctance. But we have felt that it was incumbent on us, especially during the recess of Parliament, to convey to your Lordship the information that we have received as to the state of feeling in France upon this subject: so that if unhappily the British sovereignty of New Zealand were lost, it should be through no fault of ours. We fear that the measures recently adopted by the Colonial Department may, unless promptly remedied, lead to very disastrous results. We are deeply concerned for the fate of a large and most respectable body of our countrymen, who have emigrated under our auspices. Connected, as several of us are, with the commercial and shipping interests of the country, and knowing therefore how much importance they attach to the British possession of New Zealand, as they have frequently stated in memorials to the Treasury and Board of Trade, we have felt that it was a duty to express to your Lordship the apprehensions which we entertain. We have been told that a French frigate recently sailed for the South Seas with sealed orders, and some of the French newspapers report, with expressions of satisfaction, that the Government of the United States of America has appointed a Consul in New Zealand, to be accredited to "the Confederation of Chiefs," and has sent him to his destination in a man-of-war, which is to remain under his orders. These statements may be untrue, or only premature; but, in either case, Captain Hobson's instructions, which attach two conditions, either or both of which may be unattainable, to the exercise of any authority by him in New Zealand, namely, possession of the land by British subjects, and cession by the Natives of the sovereignty over such land, are calculated to invite foreign pretensions, which otherwise would never have been imagined.

Enclosing a list of my brother directors,

I have, &c.,

Joseph Somes,
Deputy Governor.

The Right Hon. Lord Palmerston,
Secretary of State for Foreign Affairs.

Directors of the New Zealand Land Company.

The Earl of Durham, Governor. Stewart Marjoribanks, Esq.
Joseph Somes, Esq., Deputy Governor. Sir William Molesworth, Bart., M.P.
Lord Petre. Alex. Nairne, Esq.
Hon. Francis Baring, M.P. John Pirie, Esq., Alderman.
John Ellerken Boulcott, Esq. Sir George Sinclair, Bart., M.P.
John William Buckle, Esq. John Abel Smith, Esq., M.P.
Russell Ellice, Esq. William Thompson, Esq., Alderman, M.P.
James Brodie Gordon, Esq. Sir Henry Webb, Bart.
Thomas Alers Hankey, Esq. Arthur Willis, Esq.
William Hutt, Esq., M.P. George Frederick Young, Esq.