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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Native Land Court. [Aroha]

page 109

Native Land Court. [Aroha]

April, 1871.

F. Maning, Esq., Judge; Henry A. H. Monro, Esq., judge;


This is an application by Te Raihi and others, members of the Ngatihaua tribe, of Waikato, for a certificate of their title to a piece of land called Te Aroha, in the Upper Thames, situated on both sides of the Waihou River, and supposed to contain about two hnndred thousand acres. A sketch map of the block has been laid before the Court, but as the land has not been surveyed it cannot be more particularly described. The claimants found their title on conquest and subsequent possession, continued to the present time, having, as they allege, about the year 1830, and before the establishment of British sovereignty in this country, defeated the Ngatimaru tribe and their allies of the Marutuahu confederation, at the battle of Taumatawiwi, and, as a consequence of the victory, taken the land from them, who they admit had been the owners and in possession up to that time. This claim by the Ngatihaua is opposed by Waraki, Haora Tipa, Tamati Tangiteruru, and other members of different sub-tribes of the Marutuahu tribe or confederation, who allege:— Ist. That they were not defeated at the battle of Taumatawiwi. 2nd. That they have never, in any of their contests with the Ngatihaua or Waikato tribes, lost or been deprived of the land in question. 3rd. That the Aroha block now claimed by the Ngatihaua has been, from the time of the battle of Taumatawiwi to the present date, in their possession and under their authority, without any opposition from the Ngatihaua or Waikato people, or any claim of conquest having ever been made until lately, or shortly before the first hearing of this claim in the Native Lands Court at Matamata.

And 4th. That certain persons of the Ngatihaua and Waikato tribes, who have lived on the land in question at different times, subsequent to the battle of Taumatawiwi, were only there by virtue of permission given to them by Marutuahu chiefs, with consent of the tribe, who allowed those persons to live there and cultivate, accompanying the permission with important restrictions, and giving them no right of ownership in the soil.

And, finally, that the claim of the Ngatihaua is in every part unfounded in Maori usage and custom.

The claim of the Ngatihaua is also opposed by Te Wharenui, who claims the Aroha block, or such part of it as the Court may find him entitled to, in consequence of his being descended from, and the page 110representative of, the Ngatihue tribe, who some generations back were the owners of the land, before the Marutuahu came into possession, but who, he alleges, were never completely ousted from the Aroha lands, and who have had always some representatives in possession to the present day, "whose fires have never been extinguished.": The claim of Te Wharenui is from its nature opposed to the claims both of the Ngatihaua claimants and their Marutuahu opponents, and will be considered by the Court separately from the question pending between those two tribes.

A certificate of title has been already ordered for a piece of land called Te Raukaka, which is contained within the external boundaries of the Aroha block now claimed before the Court, and consequently nothing in this judgment must be held to have any reference to that portion of the land for which that certificate of title has been ordered.

The question at issue, separately from the claim made by Te Wharenui, is, in fact, not a question between individuals, but between the great Marutuahu and Waikato tribes, of which parties the sectional tribes, Ngatimaru and Ngatitumutumu, of the Marutuahu confederation, and the Ngatihaua, of Waikato, seem to be the most particularly interested. Before reviewing the evidence more particularly bearing on the question at issue, it is desirable to take a short glance at the history of the two tribes for a few years preceding the battle of Taumatawiwi, as gathered from evidence given in Court, and to observe their positions in relation to each other. It appears, then, that the tribes or hapu, who are collectively known as Marutuahu, and who oppose the Ngatihaua in this claim, did, some eight or ten years before the battle of Taumatawiwi, evacuate their own proper territory or district on both sides of the Firth of the Thames, and came and settled at Horotiu, in Waikato, by permission or invitation from the Waikato people; they also took possession of a large adjoining district, which had shortly before been occupied by the Ngatiraukawa tribe, but who had been driven off, and who had gone in search of new possessions for themselves to the South. The district temporarily evacuated, but not abandoned, by the Marutuahu tribe is very extensive, and may be approximately described as being bounded on the East by the sea coast, from a point near Tauranga harbour to Cape Colville; from thence West across the Hauraki gulf, including all the land on both sides of the River Thames to the vicinity of Auckland; from thence, an inland line in a south-easterly direction to a point on the Piako river, considerably above its junction with the Waitoa, and from thence East to near Tauranga, and then in a north-easterly direction to the commencing point. This large district, extending some eighty miles from Cape Colville in the north to the Aroha lands at the southern extremity, was at that time exposed from its position to the incursions of the Ngapuhi tribe, who were in those days the scourge of New Zealand, and so much feared that even the powerful, numerous, and warlike Marutuahu tribe did not hesitate to abandon for a time their own page 111country and remove to a position inland, where, if they could not escape the attacks of their most dreaded enemies, they would at least have a better chance of having notice of their approach', and be less likely to be taken by surprise. The willingness of the Waikato tribes to allow a powerful and dangerous people like the Marutuahu to enter and establish themselves in their country, seems to be due also in a great measure to their own fear of the restless and warlike Ngapuhi. No doubt they thought that the common danger to which both they themselves and the Marutuahu were exposed would cause the incomers to act as faithful allies, and that their alliance would bring them such a great accession of force as would enable them to defend their country against all comers. Events, however, did not occur as expected. Some of the Ngapuhi sections sought other and more distant scenes of war and rapine, others remained at home engaged in earnest though uncongenial labor, the labors of peace, undertaken only for the purpose of procuring the arms and munitions of war. As there was at that time probably no other tribe in New Zealand but the Ngapuhi, who could attack the united forces of the Marutuahu and Waikato with any prospect of success, these tribes found themselves for a time, as it may be said, accidentally living in peace. This time, however, the Maruiuahu soon began to avail themselves of their position, with the purpose of establishing themselves in the Waikato country, and taking permanent possession, not only of the lands of the expelled Ngatiraukawa tribe, but also those of the Waikato people at Horotiu and the surrounding districts, to which they had only been permitted to come to reside in the character of friends and allies while absent from their own proper district. Before long the country was commanded by not less than twenty Maratuahu fortifications; every village had its stockaded and rifle-pitted pa, and the fierce and encroaching Marutuahu commenced a series of aggressions on the Waikato people, plundering their villages, driving them from their cultivated lands, and doing everything possible to provoke war, in which the Marutuahu hoped, no doubt, to oust the Waikato tribes from their large and fertile country. The Ngatihaua, against whom these aggressions were chiefly made, were justly famous for their valour; no tribe in New Zealand had ever or has ever outshone them in barbaric courage or warlike ability, not excepting even the formidable Ngapuhi; but they had no name for patience under injuries. Fierce reprisals were commenced; murders, skirmishes, battles, and massacres became ordinary and common events, and so this state of things continued for a length of time without either party having gained any marked advantage over the other, until at length the Ngatihaua, by what is stigmatised by their enemies as a treacherous stratagem or kohuru, succeeded in surprising a Marutuahu chief named Takurua in his village and massacreing him and nearly all his people, men, women, and children, to the number of about two hundred persons, at a place called Kaipaka;where, deceived by the artful pretences of the Ngatihaua and their chief Te Waharoa that they were tired of war and anxious to enter into terms of peace page 112and reconciliation, the Marutuahu chief and his people had relaxed that incessant vigilance which was necessary to the preservation of life. Furious at this loss, and if possible more so by the disgrace, most deeply felt, of having been outdone in deception, the Marutuahu sought revenge by isolated murders, in night attacks, in open battles and skirmishes, by every effort of force and stratagem, and notwithstanding some reverses, unprejudiced Maori authorities have held that, previous to the final battle of Taumatawiwi, the Marutuahu had balanced the loss and obliterated the disgrace. The end was, however, drawing near, at least on that stage, and the final conflict on which this claim is founded. No human flesh and blood, however hardened, could endure much longer the excitement, privation, danger, and unrest, which the equally balanced force and ferocious courage of the contending parties had now protracted to several years' duration on that small spot of the earth's surface, and between two petty divisions of the human race. War had attained its most terrible and forbidden aspect; neither age nor sex was spared; agriculture was neglected; the highest duty of man was to slay and devour his neighbour;. whilst the combatants fought in front, the ovens were heating in the rear; the vigorous warrior, one moment fighting hopefully in the foremost rank, exulting in his strength, laying enemy after enemy low, thinking only of his war boasts when the victory should be won; stunned by a sudden blow, instantly dragged away, hastily quartered alive, next moment in the glowing oven; his place is vacant in the ranks, his very body can scarcely be said to exist. While his flesh is roasting the battle rages on, and at night his remains furnish forth a banquet for the victors, and there is much boasting and great glory.

Such things were, and the Court is obliged to recognize them by a passing notice, as it will be seen that some of these incidents, now only noticed in a general way, are brought before the Court, sometimes with reason and-effect, and sometimes otherwise, as evidence of title to land, according to Maori usage and custom. It appears now that after this long succession of conflicts, through which the two tribes had passed without either party having gained any marked advantage over the other, they at the same time, and, as it were by common consent, made up their minds to end the contest in one great and final battle. The Marutuahu, with this view, abandoned all their scattered forts, with which the country was studded, and in the neighborhood of which many of the previous desultory engagements had taken place, and concentrated their whole force at their principal fortress of Haowhenua, so called from its great extent, and which was situated at Maungatautari, in the Waikato country, a rich territory which they had already practically seized upon, but of which they determined the result of the coming battle should leave them the undisputed owners. Besides the Marutuahu force assembled at Haowhenua, it appears that a chief, now known by the name of Te Hira, was at the Thames with several hundred men, but who, for some unexplained reason, did not come up until after the battle.page 113Taraia, also, one of the principal Marutuahu war chiefs; was absent at the South with many Marutuahu people on one of those expeditions which the men of those times were so fond of, enacting, from place to place, and from tribe to tribe, as they passed along, the character of the peaceful guest, the open enemy, or the flying plunderer, as opportunity, necessity, or inclination might dictate. The Waikato tribes were not slack in their preparations. Their allies, the Ngaiterangi of Tauranga, were summoned and soon appeared; the Ngatihaua and Waikato mustered their whole force, and leaving only a small number of men to garrison some of their forts, advanced, and with their allies encamped at a place called Te Tiki o te Ihi a Rangi, not far from Haowhenua, where the Marutuahu force was assembled.

It becomes necessary in this place to revert to the fact that each of the contending parties claims to have won the battle of Taumatawiwi; the Ngatihaua claimants, in fact, found their claim entirely on the consequences attending the victory, and they also make the following admissions:—I That, up to the time of the battle of Taumatawiwi, the Marutuahu tribe were the owners of the land in question, that is to say, the Aroha block. 2. That the Marutuahu neither after the battle nor at any other time, made any cession of land, nor gave any land to them, the Ngatihaua claimants; and that the land for which they now claim a certificate of title was taken by them, of their own act, and as a consequence of the victory, circumstances arising therefrom enabling them to do so. 3. The Ngatihaua. do not claim or affirm that they conquered, depressed, or at all weakened the Marutuahu tribe, or reduced its military force as compared to their own, at the battle of Taumatawiwi, although claiming the victory, and to have taken the Aroha lands as a consequence. To this the Marutuahu simply reply that they won the battle, and did not lose the land; that it has always been in their possession and under their authority, and that no one has ever occupied it except by express permission from themselves, and under restrictions.

As the question of who won the battle of Taumatawiwi is contested, and as the decision of that point is of considerable importance, though not necessarily of decisive effect in the conclusion of the main question, it will be well to consider and decide it first; but before proceeding to do so, it is desirable to reduce it to as simple a form as possible, and to state clearly the points on which the main question of the ownership of the Aroha lands must be decided. The issues then arising from the nature of the case before the Court, when reduced to their simplest form, may be stated as follows:—I. Did the Ngatihaua claimants and their allies gain the victory at the battle of Taumatawiwi? 2. If so, was the victory a conquest in the sense of enabling the claimants to take the land claimed by them, and did they in fact take, occupy, and possess themselves of the land in question, and hold it as against the Marutuahu? A claim of conquest might be expected to be, and indeed in general is, one of the easiest to decide which can come before the Court. It is where conflicting claims between individuals or families of the same tribe page 114occur, that the greatest difficulties arise, and a very perfect information of the customs and usages on which Maori title is founded, is required by the Court. Conquest is a matter which generally declares itself in a very unmistakeable manner, and in ordinary cases it is seldom long before the Court comes to a conclusion as to whether an alleged conquest, has been made or not. The present claim is, however, in many respects exceptional, having its own peculiar difficulties, which have been greatly enhanced by conflicting evidence on many points of importance, by equivocation and falsehood of some witnesses, by every effort to deduce from undeniable facts improper conclusions, and, not lastly, the great ability of the legal advocates on either side, and their strenuous and unflagging efforts in the cause of their respective clients The only part of the case to which these remarks do not apply is the history of the battle of. Taumatawiwi, and it is remarkable that although both parties claim the victory, and the Ngatihaua in fact claim the land of the Aroha as a consequence of having gained the victory, yet the evidence as to all the incidents of that conflict and its conclusion, is (making allowance for some little colouring and natural prejudice such as was to be expected) very much the same as given by the witnesses on both sides, and the Court is thereby enabled without difficulty to decide the first question proposed, namely, Did the Ngatihaua and their allies gain the victory at the battle of Taumatawiwi? The question is not without importance, and undoubtedly the Ngatihaua claimants attach a great importance to it; it will therefore be well in deciding this question, that the Court point out the reasons by which it has been guided in doing so, This cannot be well done without giving a short account of the battle, its principal incidents and conclusion, as collected from the evidence of both parties. The Marutuahu, being informed that the Waikato tribes had arrived at Te Tiki o te Ihi a Rangi, not far from Haowhenua, marched out early in the morning, nothing daunted, to meet them, and took up a strong position at Taumatawiwi, firing guns as a challenge to come on to the attack. There was small need for the call to arms. At the first gun the Waikatos swarmed forth from their camp, and rapidly formed their order of battle in divisions of tribes, the whole under the command of the celebrated Waharoa; the left was composed of the Ngatihaua, Te Waharoa's own tribe, Ngaiterangi were in the centre, and the Waikato on the right. The left was close to the Waikato river, and Te Waharoa having sent forward a strong body of skirmishers, advanced slowly and in good order to the attack of the enemy's position, the skirmishers in front being already hotly engaged. Soon afterwards, however, a hasty messenger from the front came to Te Waharoa to say that the advanced parties had been almost exterminated and that the few survivors required immediate aid. Te Waharoa then ordered a rapid advance of the whole line, and as the armies closed he called to the tribe or division of the enemy between whom and the Ngatihaua a particular rivalry seems to have existed, "O, Ngatipaoa, I am Te Waharoa, I fight on the left, by the river of Waikato,"page 115The Marutuahu, well aware of the advantages of their position, awaited the attack, and defended it with great vigour' from an early hour in the morning until late in the afternoon, inflicting on the Ngatihaua, who seem to have borne the whole brunt of the battle, a loss probably equal to four times what they suffered themselves. The Ngatihaua notwithstanding, encouraged by the voice of their war chief, and furious more than dismayed at their loss, pressed on and stormed the Marutuahu position, who finding now their ammunition beginning to fail and retreat unavoidable, and after having, for want of lead, fired gravel and stones in their enemies faces at hand to hand distance, unwillingly fell back upon their post of Haowhenua, closely followed by a strong party of the enemy. This retreat was not, however, a rout; the Marutuahu retreated fighting, slaying and being slain, until they arrived at their pa, where, having obtained a fresh supply of powder, they immediately made a sortie, driving back their pursuers as far as a place called Te Reiroa, in sight of, but out of gunshot from, Haowhenua, and where the main body of the Waikato forces were now assembled in their original order of battle, in divisions of tribes. The Marutuahu in returning from this sortie took with them the body of one of their pursuers whom they had killed in the last affray, and claimed thereby the honor of having killed the last as well as the first man in this battle. This fight had lasted from early morning, before either party had partaken of food, till late in the afternoon; and when the sun went down the Marutuahu were secure, though discomfited, in their pa; and the Ngatihaua, the heat and the elation of battle departed, decimated, bleeding, and utterly exhausted, horrified at the loss of many of their best warriors, their chief Te Waharoa wounded, the re-action from over-exertion and physical excitement weighing them down and giving rise to a thousand unwonted apprehensions and alarms, remained the masters of the battle-field, and held in their hands the bodies of the enemy. They had won the battle of Taumatawiwi. This battle took place in the year 1830.

The next question which the Court has to consider and decide is of chief importance, and is as follows:—Was the victory obtained by the Ngatihaua at Taumatawiwi a conquest in the sense of enabling them to take the land claimed by them, and did they in fact take, occupy, and possess themselves of the land in question? A) victory is not necessarily a conquest. The party beaten on one day may be more ready for the battle on the next than the enemy by whom they were worsted, and the Ngatihaua themselves declare that the night after the battle of Taumatawiwi was passed by them in. great exertions to burn their dead lest they should fall into the hands of the enemy; dry timber for the purpose was scarce and distant, and exhausted as they must have been by the long and desperate contest of the previous day, it does not seem likely they would have undertaken this excessive and unusual labour unless they had at the time considered themselves in a very unpromising condition, and not the victors who had won by conquest a large tract of land in the enemy's page 116country, the nearest point of which was twenty-five miles distant, and extending more than ten miles further into the enemy's country, to save from whose hands they were now burning the bodies of their nearest relations and bravest men. It however appears certain from the evidence, and from their own admission, that almost the whole number of their dead were burned by the Ngatihaua for the reasons stated, although the object was not fully accomplished until about the second day after the fight. Inconsistent as this statement by the Ngatihaua may appear at first sight, with the position of having conquered or taken a large tract of land from the Marutuahu, it is not at all so with the admission they make that they did not conquer the tribe of Marutuahu or weaken in any way their military power as compared to their own; nor is it indeed, when closely examined, inconsistent with the assertions that they took the land as a consequence of the battle, as subsequent events arising from the battle might certainly have given the power to do so, and this is in fact what the Ngatihaua affirm to have occurred and claim to have done, and the whole of the evidence which they bring forward, commencing with the events which took place on the morning after the battle, and which goes on to give the history of the two tribes, with their relative position to each other from that time to a recent date, is intended to show that they did actually take and occupy and hold the lands of the Aroha, from immediately after the battle of Taumatawiwi, of their own act and without any cession of the land having been made to them by the Marutuahu tribe, and without any reference to their wishes or consent in the matter. It is necessary, with the view of arriving at a just conclusion, to follow this evidence step by step, to examine it closely, to compare it, not only with facts brought in evidence by the other party, but with itself in its different parts, and also to closely observe the relations which have existed between the two parties from the morning of the battle of Taumatawiwi to the present day. There are, however, some matters proved in evidence or admitted by either party, which must before going any further, be noticed, and some remarks as to their bearing on the case made.

The block of land claimed by the Ngatihaua, and called Te Aroha, is situated at the southern extremity of the Marutuahu estate or territory, and may be about eighty miles south of Cape Colville, which is the northern boundary of the Marutuahu lands; it never was a principal residence of the Marutuahu tribes, though sometimes occupied and resided on at will by families or parties, more or less numerous, of the Marutuahu people, whose principal places of abode, permanent settlements, cultivated lands, forts, and heads of population, were scattered over the Marutuahu country at distances of from thirty, forty, and fifty, to eighty miles from the Aroha block, as was the case when a strong division of the Marutuahu tribe lived at Moehau, Cape Colville, and where they were on one occasion attacked by the Ngapuhi. whom they repulsed with loss. Owing to these circumstances, and to the insecurity attendant in those days on any small number of people living at too great a distance page 117from their tribe, or in any unprotected situation, the Aroha lands, and particularly that part of them to the West of the Waihou river and nearest to the Waikato country, were often for several years entirely uninhabited, or merely visited at irregular and sometimes long intervals by the Marutuahu owners, and in general only for the purpose of catching eels, for which the ponds, streams, and swamps on the Aroha were famous. The occupation of the Aroha lands by the Marutuahu owners previously to the battle of Taumatawiwi having been of the nature described, they are not, in asserting or establishing a continuity of ownership subsequent to that event, obliged to show any different, more permanent, or positive occupation than on former occasions. It is sufficient for them to show that they could come upon the land at will, cultivate or make other use of it when they chose, and that they prevented the settlement or permanent occupation of the land by others. From the admission made by the Ngatihaua claimants, that neither after the battle of Taumatawiwi nor at any other time was there any cession of land made to them by the Marutuahu; and also in consequence of their declaration that they took the land without the consent, and, therefore, as must be inferred, against the will of the Marutuahu people, it is incumbent on them, the Ngatihaua claimants, on coming in as new owners, to prove that they did enter into practical possession and did occupy the land exclusively, undoubtedly, and permanently, and that they kept off the Marutuahu people especially, and prevented them from exercising any acts on, or making any use of, the land, which might be construed as acts of continued ownership. The Ngatihaua are doubly bound to show that they have fulfilled these conditions, in consequence of admitting that they did not conquer, subjugate, or even weaken the Marutuahu people, which admission leaves them nothing in fact on which to found their claim but occupation, and which should therefore be of the most undoubted, permanent, and exclusive nature to assume the character of ownership, for mere transient intrusion by a few persons unable to hold their position against the Marutuahu would be but our ordinary trespass, and establish no right. The title of the Ngatihaua depending then on long and unbroken occupation, without any cession having been made to them by the original owners, and without, as they admit, having weakened or depressed the original owners in any way, in their military power, the proof of that occupation should be rigorous and complete, which, if given, would imply a practical, though tacit, acquiescence on the part of the Marutuahu, on which a title of ownership by the Ngatihaua might well be founded in Maori usage and custom. The Ngatihaua bring many witnesses to prove the fact of their occupation of the land for a long series of years, which is absolutely denied by the Marutuahu, who bring an equal amount of evidence in support of their version of the case, and the evidence throughout is of such a contradictory character that it has only been with the greatest difficulty, and by facts brought out chiefly by a close cross-page 118examination of witnesses, by the evidence of a few uninterested persons, and by a close enquiry and examination into the condition of the two tribes and the relations they maintained towards each other, from the battle of Taumatawiwi till a recent period, that the Court has been at last enabled to come to a decision in the matter; but as this case has been so long and pertinaciously contested, and the property adjudicated upon is of very considerable value, it will be well, even though it may be tedious, to show the principal reasons and considerations on which the judgment of the Court is founded, and to do this will involve the quotation and recapitulation of evidence to a considerable length.

Early on the morning after the battle, according to the account given by the Ngatihaua witnesses, the Waikato tribes, after a day of hard fighting and a night spent in burning their dead, were in arms again and on the point of marching to attack the Marutuahu in their fortress of Haowhenua, when a deputation from the Marutuahu appeared, consisting of some eight or ten persons, two of whom were the chiefs Taharoku and Tupua, men of high rank in the Marutuahu tribe. They came in humble guise and unarmed to ask for peace: The Marutuahu version of this affair is considerably different; they positively affirm that the meeting did not take place until the second day after the fight, and not until Taharoku had received an invitation from Te Waharoa, the Ngatihaua chief, to come to him for the purpose of arranging terms of peace or a cessation of hostilities for the time being. This point, as to whether the chief Taharoku and his companions came with or without the invitation of Te Waharoa, is hotly contested between the parties, but it is of little consequence how this meeting was brought about; the matter of importance is that it did really take place, and that an agreement, truce, or convention was made between the parties, by which the Marutuahu agreed to evacuate the Waikato country, including the lands of the Raukawa tribe, which they had taken, and to return to their own district about the Thames. This having been agreed upon, and it having been further stipulated that the Marutuahu should go unmolested, and taking all their property of every description, the Waikato and their allies departed for their different homes, leaving the Marutuahu at Haowhenua, who, according to agreement, in about three months according to their own account, but in about three weeks after the battle by the Ngatihaua version, departed quietly and unmolested to the Thames. Several Ngatihaua witnessess who were present when this agreement was come to between the two chiefs, gave their evidence in Court, and profess to give verbatim the speeches of the different Ngatihaua chiefs. One witness says that Te Waharoa, in addressing the Marutuahu chief, said, "If you had beaten me, you would have taken all my land, but as it is you who are beaten, all my land has returned to me." This would appear to mean the Horotiu and Maungatautari lands in Waikato, which the Marutuahu had been occupying, and on which the battle had been fought. Other witnesses make Te Waharoa say, "You must leave my lands and return to your own country at the page 119Thames" (of which the Aroha is a part). Another witness represents Te Waharoa as saying, "I will take all the land up to the Aroha;" and only two witnessess state that the Ngatihaua chief signified any intention of taking Aroha, and of these two one afterwards modified his statement by saying that it was not the Aroha but the lands of Horotiu and Maungatautari that Te Waharoa seemed desirous about. This, it must be observed, is the claimants' own story; and Taharoku, the Marutuahu chief, also, according to the claimants' witnesses, like a good Maori diplomatist, having the interest of his tribe in view, said nothing at all, except "How am I to get away." He was also assisted a good deal by his colleague, Te Tuhua, a gruff and burly warrior, related distantly to Te Waharoa himself, who made one of those grim jokes which the Maori fighting men of old were fond of flinging in the very jaws of death. Giving a side glance at a heap of sweltering, smoking, and only half consumed bodies of the best and bravest of the Ngatihaua tribe, he said quietly to Te Waharoa, "Why are you spoiling my provisions?" or words to that effect. The burning of their own dead on the battle-field is a very unusual practice, and never had recourse to by natives, especially near their own country or district, except under very desperate circumstances, when hope is lost of saving the bodies from the enemy's ovens in any other way. The laconic speech of Te Tuhua contained a volume of acuteness, and showed him to be keenly alive to the position of both parties. It was as much to say to Te Waharoa, "You are putting the best face you can on matters, and trying to dictate terms to us, and are nevertheless ready to run yourself at a moment's notice." Taharoku also seems to have been a man of a practical turn of mind, and the only question which seems to have troubled him at all on this very momentous occasion was that which he put to Te Waharoa: "How am I to get away?" After several years fighting, after the last determined struggle for mastery, the contending tribes remained as before, able only to inflict mutual disaster, but without any appearance of one party being able to conquer the other. The Marutuahu, no doubt, were fully as desirous of returning to the Thames (they had just heard that European traders had arrived and were selling guns and powder) as the Waikato tribes were to see them go; yet the difficulty and danger of moving was great, and Taharoku fully understood it. He had to remove not merely an army of light-armed, able-bodied warriors, who could traverse a country with almost the rapidity, and more than the devastation of a hurricane, penetrating forests, swimming rivers, scaling mountains, and subsisting for days on almost nothing; he had to remove a tribe—old men and women, young children, the sick and wounded, and all the property, provisions, and baggage. There was only one plan of retreat open to him: this was by the Waihou and Piako rivers, where all the canoes procurable awaited him; but to arrive at these two points he would have to divide his force into two about equal bodies, who would be obliged to separate, and be thus liable, either party, to be attacked by the whole Waikato force, and, encumbered as they would have been by page 120women, children, non-combatants, and baggage, cut off in detail. Nor was this all. On arrival at the rivers Piako and Waihou he knew that the number of canoes was quite inadequate to carry the whole tribe, and consequently the two divisions would have to again divide, one-half of each division going in the canoes and the other half, now at each place reduced to a fourth of the whole force, remaining behind until the canoes could be returned, and thus exposed for several days to certain destruction should they be attacked by the concentrated force of the Waikato enemy, who was not likely to throw away such an opportunity. The difficulty was really great, and the military problem, as Taharoku put it in very few words, was one impossible for him unassisted to solve; but Te Waharoa must certainly have been to the full as anxious to get rid of the Marutuahu as they were to return to their district; for when he said to Taharoku, "You must go home to your own country at the Thames," and the astute and politic Taharoku, without wasting a single word, showed that he fully understood his own position, and was not such a fool as to think of returning to the Thames except under such circumstances as would ensure to him a safe and unmolested retreat, by merely saying, "How am I to get away?" Te Waharoa, seeing that there was no chance of entrapping him into a false move, or of getting rid of him in any way except in perfect safety, and with every convenience to himself, solved the difficulty proposed by Taharoku in the most decided and satisfactory manner, and in as few words as it had been put, by simply saying, "You shall be led out." Now the Maori words which are commonly translated as "led out" may be also rendered " guided out, "or" escorted out," and they do not, and did not, in the sense in which they were used by Te Waharoa, convey any meaning which would imply humiliation or disgrace to the Marutuahu. What they really did mean, and what rendered them so perfectly satisfactory to the Marutuahu leader, was, that in fact Te Waharoa-never meant anything by those words more or less than that when the Marutuahu were ready to go he would send with them two or three persons of consideration of his tribe, who would be in fact hostages or pledges for the safe and unmolested retreat of the Marutuahu, who, it was well understood, would put them to death on the first sign of an attack. Hostages of this kind, whose lives are hanging by a thread, and whose presence constitutes the Maori safe-conduct, are in the Maori politely called "guides" or "leaders." This explanation, though tedious, is not without an object, for it appears that some years afterwards a settler at the Thames, either jokingly or in some little quarrel with some young men of the Marutuahu, added his own gloss to the phrase "led out," and said to them "You were led out like pigs." This not very flattering interpretation was bandied about amongst the Marutuahu, and to show how in the course of events, and in the lapse of time, and from Avhat originally trifling causes, the truth became obscure and falsehood established as truth, this liberal interpretation of the phrase "led out" by a European settler was taken up about the time page 121of the first hearing of this claim, by Taraia, a ferocious old Marutuahu war-chief, who, as it would appear, for the purpose of exciting his people against the Ngatihaua, and doing in a general way as much mischief as possible, taunted the Marutuahra with having been led out of Waikato " like pigs," or at least of having been accused of being led out like pigs. This accusation made against the Marutuahu by one of their own chiefs, being repeated and a good deal talked about at the time, had the effect, no doubt, of causing it to be believed by Europeans and "outsiders" generally, who had no particular reason for investigating the matter closely, that the Marutuahu had been expelled from Waikato under circumstances of marked.defeat and humiliation, and it appears very probable that it is owing to this impression having been observed by the Ngatihaua claimants that a great number of their witnesses in Court have dwelt on the circumstances of the " leading out" of the Marutuahu, and brought it prominently forward as a proof of their having thoroughly defeated that tribe, and being therefore in a position to take, or to be supposed to have taken, the Aroha, or any lands they chose; and it seems likely, also, that the reason of the Marutuahu witnesses unanimously and positively denying the whole affair, and declaring that not one individual of the Ngatihaua tribe accompanied them on their return to the Thames, is that they have fancied, like the Ngatihaua, that if the circumstance of the "leading out" was proved, the Court might not view it in a proper light, and give more weight to it in deciding the main question of the ownership of the Aroha than it really deserved. The Court, however, from the general evidence, and from corroborating evidence, thinks that the Marutuahu very probably were accompanied on their return to the Thames by a chief of the Ngatihaua called Pakerahake and two chief women of the same tribe, but does not consider the circumstance to be at all of the importance in the decision of the question of the ownership of the Aroha lands that both the contending parties thought would have been given to it. Much time has been wasted in attempts to prove or disprove this matter, and though it is not in reality of any decisive consequence in its bearing on the main question at issue, so much has been made of it in Court that it would not have been well to pass it without notice. A secure and unmolested retreat having been thus granted to the Marutuahu, they, after three months of preparation, according to their own account, but in three weeks after the battle, according to the Ngatihaua, evacuated their fort at Haowhenua, and departed by three different routes: by the Waikato, the Waihou, and Piako rivers; and all three parties arrived in due time, and without molestation or misadventure, in their own district.

The Marutuahu having departed, the Ngatihaua came at once into possession of the lands at Horotiu and Maungatautari, which their opponents had occupied for several years, more as combatants struggling for possession than as established owners, and the Ngatihaua were certainly so far gainers by their departure; but the Ngatihaua claim to have taken also the Aroha lands, which were part of page 122the old acknowledged Marutuahu tribal estate, and which were separated by a wide belt of country from the districts evacuated by that tribe, and in which the battle was fought. The Ngatihaua state in evidence that one month after the Marutuahu had gone, a party of Ngatihaua, of whom Te Waharoa was one, proceeded to the Aroha, and took a formal possession, agreeing amongst themselves as to the division of the different eel-ponds, streams, and old eel-weirs, and also in a rough way dividing the land amongst themselves, after which, and having stayed about a week, they returned to Matamata, where they built a pa, and where they have continued to live permanently ever since. It is clear that this merely formal or nominal act of taking possession by the Ngatihaua of the Aroha lands, except followed up by occupation of a permanent nature, could give them no title by Maori usuage, any more than it would by English law. Any man can go on to another man's land during his absence, and say, "This pond, or river, or forest is mine;" or, "This valley shall belong to my cousin;" and the Ngatihaua, as has been shown, are, in consequence of not claiming to have conquered or depressed the Marutuahu, or to have received any gift or cession of land from them, doubly bound to show the most undoubted and unopposed, or, if opposed, successfully defended, occupation or possession. These conditions the Ngatihaua claim to have fulfilled, and bring evidence to that effect. The Marutuahu, on the contrary, declare, and bring evidence to shew:—

I. For twelve years following the battle of Taumatawiwi, they (the Marutuahu) made successful and aggressive war against the Ngatihaua and their allies, attacking them repeatedly, not on the Aroha, where they could never find anyone to oppose them, but chiefly in the heart of their own country, and in their populous settlements. 2. That these attacks were never returned, or attempted to be revenged, except once, after several years, when the Waikato attacked a village on the borders of the Marutuahu country, called Hauarahi, not near the Aroha, and where after surprising and killing several persons, they were repulsed by the inhabitants of the place, and chased into their own country, from whence they never again returned to make any attempt against the Marutuahu. 3. That the alleged occupation of the Aroha by the Ngatihaua after the battle of Taumatawiwi, is false, and was in reality neither more nor less than a series of furtive trespasses, made for a few days at a time for the purpose of catching eels in the absence of the Marutuahu, who seldom inhabited permanently that part of their estate. 4. That when, after peace was made between the tribes, about twelve or thirteen years after the battle of Taumatawiwi, a few Ngatihaua people are found living for a time unmolested on the land, they were there in consequence of an express permission, granted at their own request by the Marutuahu chief Taraia, who imposed the condition that they should not cut valuable timber, or make any claim of ownership to the land. And 5. That when, in or about the year 1864, or about thirty-four years after the Ngatihaua claim to have been in possession, for the first time the Waikato and Ngatihaua people are seen on the Aroha in page 123any considerable numbers, and residing unmolested for one year, they were placed there by certain Marutuahu chiefs, of whom Waraki and Tauaru were the principal persons, and by the expressed consent of the runanga or council of the Marutuahu tribe, who allowed them to live on the land for a time in consideration of their distressed circumstances, the Ngatihaua having been driven from their own country in Waikato by the European forces.

The evidence on several material points being, as has been remarked, very contradictory, the Court, in deciding between the conflicting statements, has had to trust chiefly to the evidence of a few apparently uninterested witnesses, such admissions as have been made by either party, chiefly under cross-examination, and such parts of the general evidence as seem trustworthy, and which, at the same time, have any bearing on the question at issue, but which bear but a small proportion to the mass of evidence given in Court, and with these guidesweshall nowproceed toenquire into the position held by the tribes relatively to each other after the battle of Taumatawiwi, and observe what was the real nature of the occupation of the Aroha lands by the Ngatihaua claimants subsequently to that event. John Cowell, a European trader who travelled through the Waikato country in going from Kawhia to Tauranga in the end of 1830, and shortly after the battle of Taumatawiwi, gives the following description of what he saw and heard amongst the Ngatihaua people in their own country: —" I know Haowhenua (twenty-five miles from nearest point of the Aroha). I was there in the end of 1830. The natives who were with me were very careful how they lit fires, lest they should be discovered by the Thames natives (Marutuahu), whom they were greatly afraid of; we got safe to Tauranga. I returned to Kawhia in January 1831. by way of Matamata and Kamehitiki (four hours journey to nearest point of the Aroha). The Ngatihaua were there in great numbers. At Matamata, at the pa, they were working at flax and cultivating, but appeared in continual expectation of being attacked; they did not seem to wish for fighting. I saw the Ngatihaua pa at Kamehitiki; they were also in fear of Hauraki (Marutuahu). They expected the enemy by two roads, one by the Waihou and the other by the Piako. In the end of the year 1831 I returned again from Kawhia to Tauranga. I called on my way at the same places, Matamata and Kamehitiki; I found the people in the same state and under arms. I heard that during my absence they had been attacked by the Thames natives, and that they could not tell what moment they might be attacked again. They were in fear of the Hauraki natives, and as far as I could judge, they had no desire to attack them. Every night they slept in the pa." The Thames natives, in the year 1832, attacked the Ngatihaua at Waiharakeke. I heard this from the Ngatihaua at Matamata." In answer to a question by claimants' agent, he says, "I found the natives at Matamata and Kamehitiki, as well as my guides, to be greatly in fear of the Thames natives." Again he says, "On my second return to Matamata I heard the Thames natives had been there, but had not succeeded in taking page 124the pa." In answer to a question of counsel for Marutuahu, "I know the Ngatihaua kept in their pa when attacked by the Hauraki natives; they never came out." This description by an uninterested witness of the state of things existing amongst the Ngatihaua, not on the Aroha, but in the most populous and fortified part of their own country, twice attacked within a shor-t time after the battle of Taumatawiwi, on one of which occasions they kept within their fort, not daring to come out to fight the invaders who beseiged them for some time, and on the other (at Waiharakeke) driven off their own land, in the neighborhood of Te Aroha, without the ability to make even a pretence of resistance (as their own witnesses acknowledge), is not the picture one would expect of the Ngatihaua people, who declare that at this same time they held a large and valuable district of the country of that enemy, whom they dreaded so much as to be afraid to light a fire in travelling in their own country, lest the smoke should betray them into his hands.

We will now make some extracts from the evidence of Albert John Nicholas, another European settler and trader, and as the witness Cowell gives a description of the position of the Ngatihaua in relation to the Marutuahu tribe at about a year or eighteen months after the battle of Taumatawiwi, so Nicholas tells what he observed in 1846 or 1847, when he first came to live at Waiharakeke, close to the Aroha block, and sixteen years after the Ngatihaua claim to have been in possession. He remained there some eight years, and thus had full opportunity for observing who were the actual occupants of the Aroha block, down to a period of about twenty-four years from the date at which the Ngatihaua allege they took possession. After this time Nicholas left, and went to reside at the Thames, but in the course of his business re-visited the neighbourhood of Te Aroha to as late a date as 1863 or 1864, thus continuing his observation of the state of the occupation of that place, and the position of the two tribes respecting it, to about thirty-three years after the Ngatihaua claim to have taken and occupied the land. This witness, also, from being long and intimately acquainted with all the principal men of both the Marutuahu and Ngatihaua tribes, has had opportunities of gaining information on the matter of the ownership and occupation of the Aroha land, such as few but himself possessed. The river Waihou runs completely through the Aroha block, and of his first voyage down that river after having come to reside at Waiharakeke, on the borders of the Aroha, and on other matters, Nicholas says, "I was the first who brought produce down that river. I first went down about 1847 (seventeen years after Taumatawiwi). The Ngatihaua people cautioned me not to let my 'boys' (i.e. his crew of Ngatihaua young men) steal the pigs belonging to the Ngatimaru which were running on the banks of the Waihou river, running through the Aroha. On this voyage I saw a cultivation on the south-west bank of the river belonging to Ngatimaru (Marutuahu). I often saw Ngatimaru catching pigs at Matauraura (on the Aroha). The first crew I had with page 125me going down the river were Ngatihaua men; the Ngatihaua people were fearful lest they should be molested by the Ngatimaru. I promised that if anything serious befel them, they might take all the goods in my store. Previous to my taking goods down the river the Ngatihaua did not take their produce that way; they were obliged to go overland or by the Piako from fear of the Ngatimaru. I know it would have been a great benefit to the Ngatihaua to have had the Waihou open to them. Thompson, the principal Ngatihaua chief, and all the other old chiefs told the people who went with me to respect the lands of Marutuahu, that is from Waiharakeke to the other boundary of the Ngatitamatera hapu (the whole width of the Aroha block). Thompson wished to be on good terms with the Ngatimaru, so that the river Waihou might be opened to him for traffic." Speaking, of a date long subsequent to this, this witness says, "Thompson said to me he should like me to go to Mauawaru (on the Aroha) to live, if the Ngatimaru could be got to give their consent. I told him they would allow me to live anywhere I chose, but I did not care to go there. I am aware that at one time there were some Ngatihaua on the Aroha; they were there by permission of the Ngatimaru (Marutuahu). I heard both the Ngatimaru and themselyes say this. A Ngatihaua man named Te Iwi offered to sell me a canoe; he was with others on the Aroha making canoes; they were not living there permanently, but only for the purpose of making the canoes. I asked Te Iwi how he came to be there making canoes: he told me he and his companions had permission from Taraia (a Marutuahu chief), but that they would have to pay him dearly for that permission. This was in or about 1863, or before the Waikato war (33 years after the Ngatihaua state they first entered into possession). During all the time I was living at Waiharakeke (from 1846 to about 1854), there was no one living on the Aroha except Wahataupoki, a Marutuahu; afterwards Parakauere came there with others, all of them Ngatimaru (Marutuahu) people. The Ngatimaru were very particular in looking after their pigs which were running on the Aroha, and often went to look after them, which was the cause of the fear of the Ngatihaua crew who went down the Waihou with me in 1847. I had heard that peace had been made before that time, but the Ngatihaua did not seem to believe in it."

The witness Cowell shows us the Ngatihaua down to a year and a half after the battle of Taumatawiwi on the defensive in their own territory, and this witness describes the Ngatihaua fourteen years afterwards as afraid to pass through the Aroha. even though merely in the character of his hired boatmen, while at the same time the Marutuahu were making a profitable use of the land by running pigs upon it, which they attended to with care; he also says that for the eight years he lived at Waiharakeke no one lived on the Aroha except some Marutuahu people. He then tells of some Ngatihaua whom he finds making canoes on the Aroha, thirty three-years after being, as they say, in full possession, and who acknowledged that they should have to pay dearly to a Marutuahu chief for his permitting them to come page 126there. The Ngatihaua do not contradict this statement about the canoe making; they only say they know nothing about it, and altogether the evidence of both Covveil and Nicholas does not give the idea of their being in the position of conquerors who have been in occupation about forty years. Their own evidence as to their occupation of the Aroha, will, after some short quotations from the evidence of another European witness, be reviewed, when it will be seen whether they can rebut or explain those parts of the evidence of Cowell and Nicholas, which certainly appear to make very strongly against them. James Farrow, being examined, says:—" Some six months after Taumatawiwi, the Ngatihaua were getting flax at Waiharakeke; I heard of Taraia afterwards killing some of them and driving them off. It would not have been safe for the Ngatihaua to take their produce down the Waihou. It takes three or four hours journey to go on foot to Waiharakeke from Matamata." It appears from this that as it only took about four hours to come from Matamata to Waiharakeke, and as the distance is about the same from Matamata to the nearest point of the Aroha, where the eel-ponds are, Ngatihaua would have many opportunities of trespassing on the Aroha lands, catching eels or killing pigs, without the Marutuahu, who were in general absent at from thirty to forty miles distant, knowing anything of the matter. In fact, the Ngatihaua themselves acknowledge, as will be seen, that they both could and did do these things often without the Marutuahu knowing anything about it. One of the Ngatihaua witnesses, in speaking of a Marutuahu man who, from being related to some of the Ngatihaua, used to go frequently to visit his relations at Matamata, being asked whether this man ever, in passing through the Aroha on his way to Matamata, saw the Ngatihaua catching eels, answers, "No, the visitor would travel in fine weather, but the eels could only be caught during floods." Under these circumstances, it would be surprising indeed if the Ngatihaua did not trespass on the Aroha for the purpose of catching the much-coveted eels, and killing a few pigs now and then; nor is it to be wondered at that these acts, now that the Aroha estate has, from various causes, increased so much in value, should have been erected into proofs of occupation and ownership. Whatever other or more weighty arguments the Ngatihaua have to bring in support of their title shall be presently considered.

We shall now quote from the evidence of Te Raihi, a principal chief of the Ngatihaua, and principal claimant in this case, and also from the evidence of several other Ngatihaua witnesses, to see by their own shewing and admission what the occupation and cultivation of the Aroha by them really was—a matter of chief importance in substantiating their claim, or rather, indeed, the only ground they have, as they admit they did not conquer the Marutuahu owners, and that no cession of the land was made to them, and that they simply took it and kept it. It has been noticed by the Court that the Ngatihaua have continually spoken of "cultivation" on the Aroha, but have seldom made use of the term "occupation." There certainly page 127can be no better example of the occupation of land than its cultivation, and the Court has therefore enquired closely into what this cultivation and occupation really was, and on this subject Te Raihi gives the following evidence:— "It is because I have lived on the land and cultivated since the battle of Taumatawiwi that I say the Aroha belongs to me. We have been in possession ever since the time of Haowhenua (41 years) and are now living on it." Speaking of having been attacked at Waiharakeke, near the Aroha, in 1831, and a year after the battle of Taumatawiwi, this witness says, "We had no cultivations on the Aroha at this time, because it was a time of fighting. Maungatautari and Matamata were our great places of residence" (one of these places is twenty-five miles distant from the nearest point of the Aroha, and the other four hours' journey distant). "We might have taken eels or made small cultivations for weeks without the Marutuahu knowing anything about it. I cultivated at the Aroha, at Maungaauhenga two weeks, and then went away to Matamata. The cultivation was merely a few potatoes, so as to have something to eat when we came back to catch eels. We returned next year to Te Kuapa stream and caught eels, but did not cultivate. When we used to go to Te Aroha about this time we did not put up good houses; we put up sheds to sleep under. We were afraid the Marutuahu might attack us: that was the reason we did not permanently reside there. I did not see Marutuahu living on the Aroha after the battle of Taumatawiwi. I cannot say positively they were not there. We never built a pa or fortification on the Aroha. After the battle of Taumatawiwi, and before peace was made (twelve or thirteen years), there was no safety in travelling about the country." This witness also admits that the Marutuahu attacked his tribe four times in their own country: at Waiharakeke, at Matamata, at Kamehetiki, and Te Hira and their allies at Ongare, and that they were never worsted, or pursued, or even attacked, in returning to the Thames from the Waikato country. The admissions made by Te Raihi seem very inconsistent with the position he claims for himself and tribe—that of owners who have been in possession and occupation of the land for forty years. We find, in fact, by his own evidence and admission, that the residence of himself and tribe was not at the Aroha at all, but at Maungatautari and Matamata, in the Waikato district; that the only example of cultivation he gives, and of which he seems to know anything positive or personally, was during a hasty visit to catch eels, when the Marutuahu were known to be absent, when he and his companions planted a few potatoes, which occupied them, by his own account, only two weeks (one of his companions says four days), and that having done this they went away with their eels to Matamata, and did not come back for a year, and then only to catch some more eels at a different place, and no cultivation or permanent residence was attempted. He also says that the Ngatihaua "were never molested by the Ngatimaru, except when the Ngatimaru were fighting with them," which is the same thing as to say they were page 128never molested except when they were molested. He also says "The occupation of the Aroha was 'off and on' when there was no fighting;" but as the Marutuahu attacked the Ngatihaua whenever they thought proper for many years after the battle of Taumatawiwi, the "off" appears to have been the rule, and the "on" the exception. It does not appear that the Marutuahu ever attacked the Ngatihaua on the Aroha itself, though they used to go through it on their war expeditions into the country of the Ngatihaua, but it will be clearly seen by the evidence of the following witnesses, who, although claimants, and makingout thebestcase they can for themselves, acknowledge that the reason why the Ngatihaua were never attacked on the Aroha was that, in fact, the Ngatimaru could not find them there, and that any straggling eel-catchers or pig-stealers who might have been on the land always fled with precipitation on the first news of the Marutuahu approach. It is remarkable that through the whole forty years during which the Ngatihaua claim to have held the Aroha, and through the whole course of their evidence, there is not one single instance of their being on the land, for however short a time, as a tribe, or in such force as would give them the most remote chance of holding it against the Marutuahu, who made open war against them for at least the first ten years during which they (the Ngatihaua) pretend to have been in occupation, and during which ten years not one shot was fired nor one blow struck on the Aroha, simply because the Marutuahu could never find anyone there to fight with. Some of the Ngatihaua witnesses, it will be seen, very candidly acknowledged that if they had been there the Marutuahu would have killed them. Heta Tauranga, a witness for the Ngatihaua claimants, and evidently a strong partisan, states that being employed by Nicholas, a European trader, he went through the Aroha by the river Waihou in the year 1847; and at that time, being seventeen years after the Ngatihaua state they came into occupation, there was no one on "the land. Hakeriwhi Purewha, a Ngatihaua witness, says," I was one of the party who went to take possession of the Aroha. We went a month after the Marutuahu had gone back to Hauraki. We went back again the same year and caught eels and planted potatoes. When the potatoes were planted they were left there. The people returned to Matamata for the most part in four days; some remained about a month, and then returned to Matamata. We went backwards-and forwards in this way until we were attacked at Waiharakeke. There were always some Ngatihaua going on in this way till we were attacked at Waiharakeke, (two years after Taumatawiwi). "I never saw any Marutuahu on the Aroha at any time when I was going to and fro between Matamata and Aroha. I should have seen them if I had stayed five or six days longer when Waiharakeke was attacked. I should also have seen Marutuahu when they came with their allies to attack Matamata, but we heard they were coming and went away, otherwise they would have killed us. Waharoa said, about the people killed at Waiharakeke, that the Marutuahu might kill the people, but that he would have the land.'

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Question by Court: Do you think that idea of Waharoa's could be carried out successfully? Answer: "I cannot say that it could. After the Waikato war (about 1864 or 1865) Waraki (a Marutuahu chief) brought about 200 Waikato people on to the Aroha; they did not take him there, it was he who took them there: they were relations of his wife, a Waikato. woman. He (Waraki) afterwards took them away tp.Hikutaia, in the Thames." This witness, although like the other claimants, making a general claim on the ground of old-established occupation, makes admissions which are entirely inconsistent with the idea that the Ngatihaua held possession of the Aroha, and shows their occupation to have been in fact a dangerous game of hide and seek, played by a few individuals with the Marutuahu, and at the risk of their lives, for the sake of getting more eels, now and then, and when the Marutuahu were absent The Quaker principle said to have been adopted by Te Waharoa, the great Ngatihaua war-chief, of letting the people be killed without retaliation and keeping the land nevertheless, cannot be accepted by the Court as "Maori usage and custom," or practicable in any point of view, or in any way likely to help the cause of the claimants; and indeed, the witness seems, after all, to have thought the non-combatant position of the Ngatihaua did not look creditable, and so he gives another reason for it, which is that Thompson, the Ngatihaua chief, had become a Christian, and would not allow or authorize war on any account. This no doubt may have been a very good thing for Thompson to do, but it does not appear likely to have been any help in ousting the aggressive and implacable Marutuahu from the Aroha. Piripi Te Matewha says: "I don't know when we first went to the Aroha. We began to cultivate there two years after the battle of Taumatawiwi, merely a few potatoes to eat when we came to get eels, about two or three baskets in a place. When I went to cultivate, I stayed from three days to a week. We cultivated in this small way for two years, going backward and forward. I never saw any Marutuahu on the land. I was at Matamata when it was attacked; there were no Ngatihaua on the Aroha then. We heard Marutuahu were coming, and left. I heard of Marutuahu people cultivating at Manawaru, on the Aroha. Waharoa did not attack them. We were at Matamata when Marutuahu came to cultivate Manawaru, on the Aroha. We never built a pa or fortified ourselves on the Aroha." This witness, like others, gives us an account of two years' "hide and seek" occupation. He "cultivated" from three days to a week in a year, and with his companions ran away when they heard Marutuahu were coming, which accounts very well for his "not seeing" any Marutuahu on the Aroha. He admits that he did hear at one time of Marutuahu" people having come to live and cultivate on the Aroha; he did not "see" them either, for by a remarkable coincidence he happened at that time to be living at Matamata, in the Waikato country. He says, however, that the Ngatihaua cultivated very extensively on Waiharakeke, a place of their own, not on the Aroha, but near it, and lived there until driven off by the Marutuahu, but page 130that the Marutuahu living on the Aroha were not attacked by the Ngatihaua or molested in any way. It is hard to discover the course of reasoning by which this evidence can be supposed to support a claim of ownership founded on occupation and actual possession. The description given by the witness of the few individuals of Ngatihaua going on to the Aroha, as far as his experience goes, is exactly a representation of a few stealthy, timid trespassers, who immediately disappear when they hear the landlords are coming, and never return on another poaching expedition until sure that they are gone. Waata Tahi, a Ngatihaua witness, says; "I was on the Aroha three years, backward and forward. When I used to go, there were about forty people of Ngatihaua in different places, We had no pa. I know nothing of the Aroha after the attack on Waiharakeke." In, answer to a question by the Court: "It is necessary that conquerors or people taking land should hold it against the conquered or dispossessed party. We did not hold the Aroha against the Ngatimaru when they came to attack us at various times. The Marutuahu often came back to attack us." Here we see again a Ngatihaua claimant, whose claim is founded on forty years' occupation, when closely questioned, admitting that he knows nothing at all of the matter except a little "off and on" eel catching, and a few days' potatoe planting, which ended about thirty-eight years ago, and which at the time was evidently done in fear, and by stealth. He also acknowledges the necessity of persons professing to have taken land from others, to practically hold it. and defend it against the persons dispossessed, and says at the same. time that the Ngatihaua did not fulfil these conditions with respect to the Aroha. It would almost appear that this witness came into Court for the purpose of overthrowing the claim he was ostensibly there to support. Karehaua, a Ngatihaua, says: "I first went to the Aroha after the Marutuahu had returned from attacking Matamata. We went to catch eels and made some small cultivations, and then went away to Matamata. I was three years at Manawaru. and three at Mangaemiemi, on the Aroha. I did not live all the time at Manawaru. I would be absent a year at a time from that place; I would be back there from Matamata twice in a year. When I lived at Mangaemiemi I used to go to Matamata, which was my chief place of residence. When we caught eels we in general took them to Matamata." Questioned by Court: "The land is better at Aroha than at Matamata, and the place more convenient for trade." Questioned by the Court as to why they did not settle there? He replied: "It was a thought of the Ngatihaua not to live on the Aroha. Kaipohue, a Ngatihaua, destroyed a small plot of potatoes (quarter-acre) which had been planted by Waraki, a Marutuahu, on the Aroha." He says: "I was not on the Aroha when this was done. Who would go there when attacks had been made on us at Waiharakeke and the Uira? Kaipohue pulled up the potatoes secretly, and without Thompson's knowledge, and then went away with his companions to Matamata." Question by Court: "Why did you not prevent Marutuahu page 131from planting these potatoes?" Answer: "Why should we do so? Better to let the Maratuahu go away and then destroy them. I did kill pigs on the Aroha. The Marutuahu did not see me kill their pigs; if they had been there I should not have done so. I saw a peach tree which had been planted on the Aroha by Marutuahu people. I cut it down because I did not choose that anyone should plant peaches on my land." In answer to Court: "I should not have cut the peach tree down if Marutuahu had been there; it would have caused a disturbance. Thompson's servants cultivated wheat on Waiharakeke in 1864." (Waiharakeke, it is to be remembered, is not on the Aroha.) "I was cultivating wheat at Waiharakeke for six years, from 1857 to 1863. It was Waraki (a Marutuahu chief) who brought the Waikato people on to the Aroha after the Waikato war."

This witness comes to prove the right of the Ngatihaua by occupation. He declares he lived and cultivated at two different places on the Aroha, in each place three years. What he calls residence and cultivation turns out to be this—that out of the three years that he was living and cultivating Manawaru he would be absent a year at a time, and when not absent he would be back there from Matamata, twice in one year! This is his own admission on being cross-questioned. As for the three years' residence at Mangaemiemi, seeing what his occupation of Manawaru was, where he claimed to have resided three years, we need not enquire much about the other place after admitting that his principal residence was not there, at Mangaemiemi, during the three years he resided there, but at Matamata, where his principal cultivations were. But this witness also strengthens his position as an owner and occupier by saying that he killed some pigs belonging to the Marutuahu, which were running on the land (Marutuahu call this stealing pigs), and also did a petty act of mischief by cutting down a peach tree which had been planted by some Marutuahu people, but he soon after lowers very much the prestige which he hoped to obtain by these high-handed acts of ownership and authority by allowing, when questioned, that he would not have ventured on the demonstration in the presence of the Marutuahu, as it would have created a disturbance. As to the cultivation of wheat for six years at Waiharakeke, this would, if done on the Aroha, have looked something like a real occupation, but the place is not on the Aroha block, though close to it, and has never been claimed by the Marutuahu as a tribe, though one Marutuahu chief, Taraia, appears to have had an interest in it, and which he asserted very vigorously in 1832 by driving off the Ngatihaua from that place, killing two of them, and taking one prisoner. It also appeared, from evidence which seems quite trust-worthy, that the cultivation of wheat mentioned by the witness between 1857 and 1863 was not undertaken until permission to do so had been asked by the Ngatihaua chief, Thompson, and granted by this same Taraia, who in 1832 had driven the Ngatihaua off. This witness also admits that when, after the Waikato war, a con-page 132siderable number of the Waikato people and some of the Ngatihaua came to live on the Aroha, they were brought there by Waraki, a Ngatimaru chief, who removed them afterwards to the Thames after a year's residence.

Pero Tio, a Ngatihaua witness, amongst other admissions, says, "When I went to cultivate at Kaipara, on the Aroha, myself and three others, all the cultivation we did was to plant one basket of potatoes. The subsequent cultivations were of the same description. We never had any cultivation of consequence. Our houses were such as other travellers make, mere temporary sheds. I went first to the Aroha after peace had been made. We used after to go to the Aroha to catch pigs." The admission made by the Ngatihaua witnesses are quite inconsistent with the position they claim to hold with respect to the Aroha lands; indeed, they from the beginning have been under the difficulty of claiming to have taken the land from a people whom they acknowledge they did not conquer, and who made no cession of the land to them.

On the other hand, the Court, on examining the evidence brought up by the Marutuahu, finds that it must either reject much of that evidence as false, without any just reason for so doing, or must conclude that the Marutuahu have proved the following facts:

1.That although they, the Marutuahu, evacuated the Horotiu and Maungatautari lands after the battle of Taumatawiwi, and returned to their own proper district, of which the Aroha is a part, they never did relinquish their claim to, or relax their hold on, the Aroha block.
2.That for twelve years following the battle of Taumatawiwi they made active and successful war against the Ngatihaua tribe and their allies, not on the Aroha lands, where no one was found to oppose them, but in the country of the Ngatihaua themselves.
3.That by this aggressive warfare they prevented and rendered it impossible for the Ngatihaua to occupy the Aroha lands permanently or in any way that would give or indicate title or ownership according to Maori usage.
4.That during the twelve years of hostility following the battle of Taumatawiwi, the only persons found living in anything like a permanent manner on the Aroha lands were some seven or eight-men and their families of whom the chief Parakawere was the principal person, and that all these men, though some of them were related to Ngatihaua families, by marriage or otherwise, were Marutuahu warriors, who most of them fought against the Ngatihaua at Taumatawiwi and the following battles, and that this chief, Parakawere, instead of being a Ngatihaua, and holding the Aroha, as was attempted to be insinuated, as locum tenens for the Ngatihaua, particularly distinguished himself in fighting against them, the Ngatihaua having murdered his wife and eaten her at the time of the massacre of the chief Takorua and his people.
5.That those parties or individuals of the Waikato or Ngatihaua tribes who, since peace was made between those tribes and the page 133Marutuahu, have been living for a time unmolested on the Aroha lands, were there by permission of the Marutuahu people, but who did not concede to them any right of ownership.
6.That the Marutuahu tribes have, since the battle of Taumatawiwi —both during the twelve years of war following the battle, and since peace was concluded with the Ngatihaua—made use of the Aroha lands at will, and in a profitable manner, both by cultivating the land and running stock, and as fully and frequently, it would appear, as they chose to do.

The evidence on which these conclusions are founded is positive and direct, and has not been shaken or weakened in cross-examination.The Court, therefore, taking into consideration also the admissions made by the Ngatihaua witnesses, which go very far indeed to strengthen and corroborate the evidence of their opponents, and seeing that the whole of the evidence as to the Marutuahu side must be discredited without reason, or that the points maintained must be taken to be proved, is unanimously of opinion that the Ngatihaua claimants have failed to prove their title to the Aroha block, and that the Marutuahu tribe have a right to the certificate of title which they claim.

It is therefore ordered that a certificate of the title of the Marutuahu tribes to the lands of the Aroha block shall be issued to the Governor if in years a survey plan, certified by the Inspector of Surveys, shall be delivered to the Chief Judge of the Native Land Court.

Te Wharenui claims to be individually interested in a large portion of the Aroha block. He grounds his claims on descent from Ngatihue, the original owners of the Aroha, and on occupation. It has, however, been proved in evidence that the Ngatihue were conquered and dispossessed by the Marutuahu, under Te Poporo, Te Pukeke, and others, and, moreover, Te Wharenui is only distantly connected with that tribe, and that his ancestress, Te Kura, from whom he claims, left the district five generations ago, married into a strange tribe, and never came back. Te Wharenui appears to have lived for a short time on the Aroha of late years, but merely as the guest of Parakawerc.

The Court considers that he has no claim.