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No. 43.
Copy of a Despatch from Governor Sir G. F. Bowen, G.C.M.G., to the Eight Hon. Earl Granville, K.G.
My Lord,—
It is my duty to report that strong comments have been made by the leading public men of all parties in this country, in the Colonial Parliament and otherwise, and by the principal organs of the colonial Press, on the two last paragraphs of your Lordship's Despatch No. 30, of the 26th February ultimo, viz.: "I see it stated in the newspapers that you have offered a reward of £1,000 for the person of the Maori chief Titokowaru—I infer dead or alive—and £5 for the person of every Maori rebel brought in alive. I do not pronounce any opinion at present as to the propriety of these steps. But I must observe that they are so much at variance with the usual laws of war, and appear at first sight so much calculated to exasperate and extend hostilities, that they ought to have been reported to me by you officially, with the requisite explanation, which I should now be glad to receive."
| 2. | It is contended here that this passage implies that the Maoris now in arms against the Queen, and, in particular, the cannibal Titokowaru and his band, are foreign enemies, or, at all events, "belligerents," with whom "the usual laws of war" must be strictly observed, and it is felt that the question thus raised is of the highest practical importance. It has, therefore, been referred by the Colonial Ministers for the opinion of the Attorney-General, which I now enclose, soliciting for it careful consideration. |
| 3. | It will be seen that, so far back as iu. 1842 and 1844, the then Secretary of State for the Colonies (the present Lord Derby) wrote as follows. [See enclosure.] |
| 4. | Mr. Stafford, in his memorandum on this question, remarks: "Earl Granville suspends his judgment as to the propriety of these steps [i.e., the action of the Colonial Ministers in offering rewards for Titokowaru and Te Kooti], on the ground that they are much at variance with the usual laws of war.' When his Lordship shall have had leisure to consider the details of the acts of Titokowaru and Te Kooti, he will perhaps come to the conclusion that their atrocities are happily as exceptional as the course adopted with a view to their punishment. But the offers in question are not without precedent, in the history of the Mutiny in India, and even of the Fenian outrages within the heart of the United Kingdom. Every atrocity of the Sepoy Rebelliou has been paralleled and outdone in the raids, burnings, violations, tortures, murders, and cannibalism of the last nine months in New Zealand, and with less provocation or excuse." |
| 5. | It will be further recollected that, so far back as on the 5th September
ultimo, I transmitted a memorandum from Colonel Haultain, then the Minister for
Colonial Defence, showing that every effort was made in the due course of law to
bring to justice Titokowaru and his gang of murderers Warrants were issued
against them after the Coroner's inquest held on the bodies of some of the
settlers, whom they have treacherously killed and savagely mutilated Any
prisoners that may be taken will be tried before the Supreme Court of the
colony, as were the Maoris who in 1865 murdered Messrs. Volkner and Fulloon at
Opotiki, on the east coast of this Island," In my previous. Despatch No. 78, of
the 8th of August, 1868, I had forwarded a copy of Titokowaru's proclamation to
his tribe (dated 25th June, 1868), in which he boasted of his cannibalism—of
"eating an European page 190 trooper like a
piece of beef. He was cooked in a pot; the women and children partook of the
food. I Lave begun to eat human flesh, and my throat is constantly open for the
flesh of man." Again, with my Despatch No. 14, of the 31st of January ultimo, I
forwarded Colonel McDonnell's account of his visit to Titokowaru's abandoned pa
at Te Ngutu-o-te-nanu?("the Hawk's Beak"), to ascertain the fate of the officers
and men of the colonial forces who were killed and wounded in the action of the
7th September, 1868, and whose bodies unfortunately fell into the hands of the
rebels. Colonel McDonnell wrote: "I regret to say that the report which reached
me about the burning of the bodies of those left in the field is too correct;
and a more horrible and revolting spectacle could not have been witnessed. We
found the remains of two large fires or altars outside the pa, and of a small
one inside, at the foot of a rata tree. The charred remains of human bones and
skulls at each of these fires, with other signs horrible to think of, told a
sickening and awful tale. I fear the story related of poor Corporal Russell,
relative to his having been burnt alive, is true; and this most likely took
place at the foot of the rata tree mentioned above. There is no doubt that the
dead were partly eaten and partly offered as a sacrifice by the infamous
Titokowaru and his band." In your Despatch No. 45, of 23rd April ultimo, your
Lordship acknowledged the receipt of my despatch "enclosing a report from
Colonel McDonnell of a successful expedition under him to the pa of the rebel
Titokowaru," and added, "I am greatly shocked to hear, from Colonel McDonnell's
report, of the barbarous manner in which the remains of some of the colonial
troops were treated; and I can hardly express the feeling of horror with which I
learn that there is reason to fear that one of them was burnt alive." |
| 6. | Your Lordship has required from me explanations of the conduct of the Colonial Government with regard to Titokowaru. The above-mentioned facts alone, taken in connection with the opinion of the Attorney-General, seem to justify, according to the law of nations, the decision of the Ministers to treat Titokowaru and also Te Kooti (whose cruelties have been hardly less atrocious) in an exceptional manner, so as to make a clear and broad distinction between them and those insurgents who, like the Waikato tribes, have waged a comparatively honourable warfare. Moreover, it has been asked here, "Why should the Ministry of New Zealand be blamed for adopting, against Maori murderers and cannibals, measures far less stringent than those for which Lord Seaton, Sir Henry Ward, Lord Torrington, Lord Canning, and other Governors have been applauded for adopting in the suppression of the rebellions in Canada, Cephalonia, Ceylon, India, and Ireland?" It is well known that, in all the rebellions alluded to, rewards were offered for the persons of the rebel leaders, in some cases "dead or alive," totidem verbis; that "martial law" was proclaimed, the Habeas Corpus Act was suspended, numerous prisoners were executed for being merely taken in arms against the Crown, and other measures of repression were carried out much more severely than in New Zealand. |
| 7. | As your Lordship is already aware, Colonel Haultain and Mr. Richmond offered rewards for Titokowaru and Te Kooti respectively, while those Ministers were in the field wiih the colonial forces, at a great distance from the seat of Government, and necessarily without the previous knowledge or sanction of the Governor. Their colleagues entirely concurred in the action taken, so soon as they heard of it; and when it was discussed in the Parliament the leading men of all parties gave it almost unanimous support. I am informed that there appears to be a very general determination to resist the active interference of any Imperial authority in the internal government of New Zealand, now that the Imperial Government has transferred the entire control and management of Native affairs to the Colonial Ministers for the time being, and has absolutely declined to give any assistance or to incur any responsibility in the suppression of the existing Maori rebellion. |
| 8. | I earnestly trust that I shall not be misunderstood in any quarter, and that my conduct during my long career in the service of the Crown will show that I am not likely to shrink from any responsibility properly belonging to my office. I have never concealed that, so far as my personal feelings are concerned, I should greatly prefer to be in the position occupied by my predecessors in New Zealand down to 1862, for (among other considerations) it is naturally very painful to be subjected to censure, both in England and in this colony, for the actions of other men, when all power of direct control has been taken out of the hands of the Governor, and he has also been deprived of all physical force by the entire removal of the Imperial troops. But I know, of course, that this position is for many reasons unavoidable under existing circumstances; and (as I have often stated elsewhere) I concur with the opinion of Mr. Herman Merivale that "The suggestion of establishing in the same colony Responsible Government for the settlers, and a separate administration of Native affairs under the Imperial authorities, is unpractical. There cannot be two Governments in the same community; certainly not unless some mode can be devised of having two, public purses." It might be added that the progress of events in this colony has abundantly proved that nothing but disaster can follow from divided councils and from divided power and responsibility. The real management of Native affairs must rest either with a Governor responsible to the Secretary of State, or with a Ministry responsible to the Colonial Parliameat. It is not to be denied, however, that the Governor of a colony possessing parliamentary institutions, as an impartial though not indifferent observer, and friendly moderator of extreme views, may effect much good, but only (as Earl Grey has remarked) "by a judicious use of the influence rather than of the authority of his office." It need scarcely be added that he must always be careful not to identify himself in any manner with illegal or cruel measures; but I have yet to learn that there is any set of public men in the New Zealand Parliament desirous to adopt measures of that nature. |
| 9. | In this and in previous despatches I have submitted the explanation required concerning the conduct of the Colonial Government, with, I trust, a not unbecoming frankness, and certainly without the intentional use of a single word inconsistent with the respect due to your Lordship, both personally and as the Minister through whom I receive the instructions of Her Majesty's Government. |
I have, &c.,
G. F Bowen.
The Right Hon. Earl Granville, K.G.
Enclosure.
Opinion of the Attorney-General as to the Legal Status of the Maoris now in Arms.
The opinion of the Attorney-General was requested, by direction of the Hon. the Colonial Secretary, on 23rd June, 1869, in the following terms: "The concluding paragraph of Earl Granville's despatch No. 30, of 26th Pebruary, 1869, implies that the Maoris now in arms against the Government are a foreign enemy, or, at all events,'belligerents,' with whom 'the usual laws of war' must be observed. The Attorney-General is requested to state his opinion how far this is true, and to define the legal position of the Maoris according to the existing law."
I am required, as I understand, to state whether, in my opinion, the Maoris now in arms are to be treated as belligerents, with whom the, usual laws of war must be observed, or whether they are to be treated as criminals guilty of treason in levying war against the Sovereign;, and, secondly, to define the legal position of the Maori inhabitants of New Zealand, particularly with a view to the question, Whether they are bound to obey the laws of the land, and are liable to punishment for the infraction of such laws equally with the white population of New Zealand.
The second question seems to be properly considered before the first. There can be no doubt that Her Majesty the Queen is Sovereign over the whole of New Zealand. Questions were at one time raised on this subject, even by those whose opinions were undoubtedly entitled to great consideration. I do not think it necessary or expedient to argue this question. It seems to me that I shall best serve the object with which the question is put to me, if I state what the doubts were which at one time were raised, and the manner in which those questions have, for all practical purposes, heen disposed of.
In the years 1842 and 1843 this question was much debated. Mr. Swainson, the then Attorney- General for New Zealand, argued that only those Maori tribes which had actually acknowledged the Queen's sovereignty over them could be deemed British subjects or be held amenable to our law. At page 474 of House of Commons Papers on New Zealand, Vol. iv., is printed a copy of an opinion by Mr. Swainson on a matter in which he considers that this question arose. He says, "I have elsewhere given my opinion that those tribes only which have acknowledged the Queen's sovereignty can be deemed British subjects, and are amenable to our laws. Whether the Native Tangaroa is so amenable for any act he may have committed depends upon the circumstance whether the aggressor and the suffering party belong to tribes acknowledging the Queen's authority, and whether the scene of action was within the British dominion."—(27th December, 1842.)
The opinion the Attorney-General refers to as having been given by, him elsewhere, is referred to in the Minutes of the Executive Council of New Zealand, held at about the same period (29th December, 1842), and the opinion is said to be annexed and marked J.K. That opinion is not, I believe, to be found; but the Attorney-General, at that meeting of the Executive, was called upon by the Officer Administering the Government to express his opinion on the subject, and did so. The Minutes, so far as they bear directly on the question, are as follow: "His Excellency requested that the Executive Council would give their opinions on the following questions: 1. 'Are the Islands of New Zealand British territory ?' The Colonial Treasurer: 'I consider the whole of the Islands of New Zealand British territory.' The Attorney-General: 'No.'—' 2. Whether the whole of the aboriginal race of New Zealanders are British subjects and amenable to British law ?' The Colonial Secretary: 'I consider they are all British subjects, and amenable to British law.' The Attorney-General: 'I consider that the title of Great Britain to the sovereignty of New Zealand rests partly upon discovery, partly upon cession, partly upon assertion, and partly, upon occupation; that from these sources conjointly, as against all other nations, and as to British subjects, I think Great Britain has a title to the sovereignty over the whole of New Zealand, and that she possesses the right of pre-emption of territory from the Natives, and has the power to regulate trade and commerce with other nations; but, as to those tribes who have never, ceded the sovereignty and who refuse to acknowledge the Queen's authority, I think that Great Britain has not the right, nor would it be consistent with good faith, to impose upon them her penal code.'"
In acknowledging the despatch communicating these opinions, the Secretary of
State, Lord Stanley, writes as follows: "It appears to me, however,
indispensable to advert, with the least possible delay, to the opinions
maintained by the Attorney-General of New Zealand regarding the extent of Her
Majesty's dominion in the Island of New Ulster. Mr. Swainson, if I rightly
collect his meaning, draws the following distinction: He appears to hold that
the Queen's sovereignty over the New Zealand Islands cannot be controverted on
behalf of any foreign country, or by Her Majesty's subjects of British birth;
but that it is impossible to assert that sovereignty against any chief who has
not acknowledged it, or in relation to any district belonging to him or to his
tribe. I cannot say that this distinction is perfectly intelligible to me. But
it is my duty to deny, in the most unequivocal terms, the accuracy of any
opinion,-whosoever may be the author of it, which may deny Her Majesty's
sovereign title to any part of the territories comprised within the terms of the
Commissions issued under the Great Seal of the United Kingdom for the government
of New Zealand. Throughout the whole of his discussion on this subject, Mr.
Swainson makes, no allusion to the terms of those instruments. The omission is
very remarkable. If accidental and inadvertent, it is not creditable to Mr.
Swainson's accuracy. If he omitted all allusion to those Commissions, as being
irrelevant or unimportant to the question in debate, then the omission is hardly
reconcilable with his possession of a just view of the history and constitution
of the British colonial settlements. I regard the Royal Commissions for the
Government of New Zealand as ascertaining beyond all controversy the limits of
Her Majesty's sovereignty in that part of the world: that is, I hold that it is
not competent for any subject of the Queen's to controvert the rights which in
those Commissions Her Majesty has solemnly asserted. 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 that Her Majesty has pursued it. All the territories
comprised within the Commissions of the Government of New Zealand, and all
persons inhabiting those page 192
territories, are and must be considered as being to all intents and purposes
within the dominions of the British Crown. Mr. Swainson must be apprised that
neither he nor any person who shall oppose this fundamental principle of your
Government can be permitted to act any longer as a public officer under the
Queen's Commission."—(21st June 1843. House of Commons Papers on New Zealand,
Vol. i v., page 475.)
On the same subject (13th July, 1843) Mr. Swainson refers to his former opinion in the following terms (see House of Commons Papers on New Zealand, page 167): "With reference to a former transaction, my opinion was requested as to how far the New Zealanders were amenable to British law. It was given to the effect that, as to all other nations, the sovereignty of Great Britain over the whole of these Islands is absolute and entire, but that, as to the Natives, keeping in view the solemn and repeated disclaimers of Her Majesty's Government of every pretension to seize on the Islands of Now Zealand, or to govern them as part of the dominion of Great Britain, unless the free and intelligent consent of the- Natives should be first obtained, that those chiefs and tribes who were not parties to the treaty, and who had always refused to recognize Her Majesty's sovereign authority over them, could not be deemed British subjects and amenable to our Jaws."
On the 10th February, 1844, Secretary of State Lord Stauley refers to this reiteration of Mr. Swainson's opinion in the following terms (see H.C. Papers, N.Z., page 173): "To the Colonial Attorney-General's renewed expression of his opinion that the Queen's sovereignty of the New Zealand Islands cannot be admitted, because, in his judgment, those conditions have not been fulfilled which Her Majesty declared must precede the assertion of any such right, I answer by calling your attention to my despatch of the 21st June, 1843, No. 37, and by observing that in this case the judgment of the Colonial Attorney-General is overruled, and must henceforward be silenced, by the opposite judgment of the Queen and Parliament. Her Majesty is satisfied, and Parliament is satisfied, of the fulfilment of the preliminary conditions in question. In that conviction the Queen has, by the most solemn acts, asserted her own sovereignty over the whole of New Zealand, and has, with equal distinctness, announced and asserted it to all foreign States. Parliament, by their enactment of the session of 1842, have affirmed the same principle. I repeat, therefore, that the most implicit acquiescence in it is the indispensable condition of the tenure of any public office in the colony."
It will be seen that the ground taken by the Secretary of State is, that the Queen, by her Charters and Commissions, and the Queen in Parliament, by Act, has assumed sovereignty over the whole of New Zealand, and none can be admitted to question her sovereignty. If that argument was sufficient in those early times, it certainly must be at the present day. Not only has the Queen since then granted other charters and commissions for the government of the whole of New Zealand, but she has in Parliament passed many laws for the government of New Zealand, and the regulation of various matters relating to it. Reference may especially be made to the, Constitution Act, sections 53, 71, and 81.
If it is established, as most undoubtedly it is, that the whole of New Zealand is subject to the sovereignty of the Queen, what is the condition of the Maori inhabitants thereof ? Are they subjects or aliens? What, if any, allegiance do they owe? There can be no doubt that the rights of sovereignty extend to all persons within the territory over which the sovereignty extends; they extend to all strangers resident therein—not only to those who are naturalized and to those who are domiciled therein, but also to those whose residence is transitory. It is true that, for some purposes not material to the present question, there is a distinction in the jurisdiction which the Sovereign has over naturalized and natural-born inhabitants on the one hand, and foreigners who are for the time dwelling therein on the other. The latter owe a local and temporary allegiance only, the former a natural allegiance. It is, I think, clear that those of the Maori race now inhabiting New Zealand who were born before the assumption of sovereignty over the land by the Queen became naturalized subjects of the Queen, whether the sovereignty was ceded or not; it is clear that all former dominion, if any such existed, must be taken to have been extinguished by the Queen's assumption of sovereignty, and that such persons are now, for all purposes, naturalized subjects of New Zealand, and equally bound by the same laws, and owe the same allegiance as natural-born subjects, whether born of the British, or Maori, or any foreign race. Indeed, so far as relates to the question of obligation to obey the municipal laws of the land, and to the amenability to the punishments provided by them for infraction of their provisions, there is no distinction between natural-born and naturalized subjects and alien inhabitants.
In concluding this branch of the question, I beg to refer to the Act of the
General Assembly, passed in the session of 1865, entitled "The Native Eights
Act, 1865." That Act recites that doubts had been raised whether certain persons
of the Maori race were natural-born subjects of Her Majesty, and whether the
Courts of the colony had jurisdiction in all cases touching the persons
and-property of the Maori people, and by that Act it is declared and enacted in
the 2nd section that "Every person of the Maori race within the Colony of New
Zealand, whether born before or since New Zealand became a dependency of Great
Britain, shall be taken and deemed to be a natural-born subject of Her Majesty,
to all intents and purposes whatsoever." I am not well aware of the
circumstances that gave occasion for the passing of this Act. So far as I have
been able to learn, the principal reason for the measure was that ib was deemed
expedient that there should be a legislative declaration on the subject, rather
for the purpose of declaring that the Maori race would, for the future, be
treated as entitled to the rights, and as subject to the obligations, of
natural-born subjects, than for quieting any doubt in the minds of those whose
opinions on the subject were entitled to consideration. Moreover, an opinion had
been given by the Law Officers of the Crown in England (inferentially at least)
by questioning whether the Maoris, in respect of land over which the Native
title had not been extinguished, could bring any action of trespass or ejectment
in the Queen's Courts in New Zealand, or whether the Queen's Courts would ever
exercise jurisdiction over real property in Native districts. Prom this
inferential expression of opinion it is possible that an impression may page 193
have arisen, though certainly without
reason, that the Queen's Courts would not redress personal wrongs when suffered
by Maoris. The language of the Act seems rather to convey the notion that the
Legislature intended to confer rights than to create liabilities. However, the
Act does undoubtedly put beyond all question the status of the Maori inhabitants
of New Zealand, whether born before or after the Queen's assumption of
sovereignty.
If it be granted, as no doubt it must, that the Queen is Sovereign over all the territories within New Zealand, and that the Maori people are natural-born or naturalized subjects of the Queen, the next question for consideration is, Whether, in dealing with the Maoris now in arms, the usual laws of war are to be observed.
It has been already shown that not only natural-born and naturalized citizens, but also aliens dwelling in New Zealand, are alike subject to the municipal law of the land, and alike liable to punishment for the breach of these laws. It follows from this that, in suppressing a rising against the constituted Government, the same measures may be taken against those who are citizens and those who are aliens only for the time dwelling in the land. Indeed, to both classes of persons the term "rebels" may justly be applied; they both owe allegiance to the Crown in return for its protection. If the Maoris were the subjects of a foreign State at war with the Queen, then, no doubt, such persons could not be considered as rebels: but the Maoris are not the subjects of a foreign State; they are subjects of Great Britain, and are now in arms against the Sovereign.
It is not easy, nor perhaps possible, to lay down any general rule which ought to guide the Sovereign in dealing with those of his people who take up arms against him. It may be sufficient to say that when rebellion has assumed such proportions that those who are in arms against the Sovereign would be able, if forced to do so by the conduct of the Sovereign towards them, to take such reprisals upon those who adhere to the Sovereign as to insist upon the observances of the usages of war, then probably those in rebellion should be treated as enemies with whom the usages of war should be observed. The adoption of such a course is forced upon the Sovereign with a view to confining the effects of war to narrower limits. Acting from such motives, prisoners taken by the Sovereign would not be put to death as rebels, whether with or without trial, lest those prisoners who should be taken by those in rebellion should in reprisal be put to death. The reason for the observance of the usages of war fails (whether the war be a civil war or between State and State) if those in arms on the opposite side violate the laws of war. No doubt, in such a case, the consequences of such violation of the rules of war ought to be confined to those who are responsible for and have taken part in them, and ought not to be extended to those who, taking no part in them, are nevertheless implicated in the rebellion.
The Maoris now in arms have put forward no grievance for which they seek redress. Their object, so far as it can be collected from their acts, is murder, cannibalism, and rapine. They form themselves into bands, and roam the country seeking a prey. In punishing the perpetrators of such crimes, is the Sovereign to be restrained by the rules which the laws of nature and of nations have declared applicable in the wars between civilized nations? Clearly not. Even if those now in arms had not been guilty of such enormous atrocities, it does not appear to me that the insurrection or rebellion is of such a character, or has yet reached such proportions, as to enable it to be said that those who, having taken part in it, are captured, ought to be treated as prisoners of war. I see no reason why they should not be treated as persons guilty of levying war against the Crown. No doubt in so treating them the Crown would exercise its power with mercy: the numbers of those in arms, and who have been and are likely to be captured, and the fact that the men are of a savage race, afford sufficient reasons for confining the highest penalties of the law to those who are the leaders of the revolt, or have actually participated in the atrocities that have been committed. Unfortunately, however, the revolt has been carried on in defiance of all the laws of nature, and there can be no doubt, that all who have taken part in it have forfeited all claim for mercy: certainly, all title to the observance towards them of the usages of war, if they ever had such title. Nevertheless, the measures taken to suppress such revolts as those that have occurred, and no doubt will continue to occur amongst the Maoris, should be such as are calculated to suppress, and not to extend or exaggerate them; and with this view, no doubt, the Government will, as it has always done, treat those who have taken part in such revolts with no greater severity than the circumstances of the case may seem to require.
Reference is made, in the questions put to me, to the despatch of the Secretary
of State, Lord Granville, of the 26th February, 1869. In this he says, "I see it
stated in the newspapers that you have offered a reward of £1,000 for the person
of the Maori chief Titokowaru (I infer alive or dead), and £5 for the persons of
Maori rebels brought in. I do not pronounce any opinion at present as to the
propriety of these steps, but I must observe that they are so much at variance
with the usual laws of war, and appear, at first sight, so much calculated to
exasperate and extend hostilities, that they ought to have been reported to me
by you officially, with the requisite explanation, which I should now be glad to
receive." The Secretary of State uses language from which it may be implied that
those who have been and are still perpetrating such atrocities as have been
perpetrated Here ought, in his opinion, to be treated as enemies carrying on
"hostilities" according to the usages of war, and that such hostilities may be
exasperated and extended by the offering of rewards for the apprehension of such
enemies. This measure does not seem open to any objection in the case of a
Government engaged in the suppression of a revolt, accompanied, as such revolt
has been, with all the unrelenting cruelty of savage nature. The object of the
Government is self-preservation. The peaceful citizens must be protected at all
costs. Even in the case of a foreign enemy who violates the laws of nature and
the usages of war, the utmost severities are permitted as a punishment for his
crimes. According to Vattel (Book III., ch.
viii.), "There is one case in which we may refuse to spare the life of an enemy
who surrenders, or to allow any capitulation to a town reduced to the last
extremity. It is when that enemy has been guilty of some enormous breach of the
law of nations, and particularly when he has violated the laws of war. This
refusal of quarter is no natural consequence of the war, but a punishment for
his crime—a punishment which the injured party has a right to inflict. But, in
order that it may be justly inflicted, it must fall on the guilty. When we are
at war with a savage nation, who page 194
observe no rules, and never give quarter, we may punish them in the persons of
any of their people whom we take (these belonging to the number of the guilty),
and endeavour, by this rigorous proceeding, to force them to respect the laws of
humanity."