Notes on Sir William Martin's Pamphlet Entitled the Taranaki Question
"The right or might of the conqueror was wholly outside the Tribe."…………
The argument as here put forward appears complete. It is, nevertheless, incorrect in some respects. No one well acquainted with Native tenure can be ignorant that a conquered tribe seldom was allowed to return to the ancient possessions from which it had been driven out by conquest, without some conditions which clearly brought out the relative positions of conquerors and vanquished. It was a frequent practice for the conquered party to be under the obligation of paying tribute for some years in the shape of produce of the soil, before they were permitted to resume full possession of the land as their own. There is not the slightest doubt that this was very commonly done in the case of the manumitted Ngatiawa captives. It was specially done by Taonui, the head chief of Ngatimaniapoto, when he liberated Orowhatua, the father of Rawiri Waiaua: who carried his tribute up to Mokau River to present to Taonui and his tribe. Even in cases of sale of their land to the Crown, the Ngatiawa have repeatedly sent up portions of the payment to Waikato as an acknowledgment of the permission to return; and this was really necessary, for (as the Protector of Aborigines and Commissioner Spain stated in 1844) the Waikatos often openly threatened that, if the Ngatiawas presumed to receive any farther payment themselves, they would undoubtedly come down and take it from them. This is not consistent with Sir W. Martin's declaration that "if the Tribe returned, they returned to all the rights they possessed before the invasion." Even if there had not been numerous cases of the same kind among other Tribes, in the conquests whereby the lands of the New Zealanders so constantly changed hands before the establishment of British sovereignty, there page breakwas indisputable evidence before Sir W. Martin that in the case of the Ngatiawas they most certainly were never allowed to "enjoy their own again as of old."
The imposition of conditions on a vanquished Tribe in allowing them to return to their land was practically an exercise of the right of mana in the conquerors. Now the Waikato cession transferred to the Government whatever right of mana the Waikatos possessed at the time of the Treaty of Waitangi. Governor Fitzroy was acting in strict accordance with the usages and rights which were vested in the conquerors prior to 1840, when he stipulated with the Ngatiawas in 1844 that they should set out their separate portions of land; Governor Grey acted in strict accordance with those usages and rights when he stipulated with Wiremu Kingi in 1848 that he should settle on the north bank of Waitara.
But even if it were true as a rule that when "the Tribe returned they returned of course to all the rights they possessed before the invasion and in the same measure and manner as before," without reference to conditions by the conquerors, it would still be quite fanciful to assume that the Ngatiawa would "return" as a tribe (iwi) to a common property in their territory. What they would return to was that state of title which has been referred to in the note to p. 2, and which Sir W. Martin himself in 1846 described when he laid down the general rule that, "The lands of a tribe do not form one unbroken district over which all members of the Tribe may wander. On the contrary, they are divided into a number of districts appertaining to the several sub-tribes."