Par. 98.

Here is the main proposition on which Mr. Richmond relies: "In law, as well as in fact, their territorial rights and obligations are not subject to the interpretation of our Courts. These rights stand upon Treaty, of which the Crown itself is, rightfully, the sole interpreter." The practical consequence is drawn in Par. 121: "If the Governor had jurisdiction, he was justified in asserting it in the only practicable mode, viz., by force; in other words the Governor being of right sole judge of questions respecting Native Territorial rights, was justified in enforcing his jurisdiction in the only practicable mode, vis., by military occupation."

I have argued that the people of the Waitara, being subjects of the Crown, have not been dealt with as subjects of the Crown. Mr. Richmond answers by saying, they are not subjects of the Crown; they have had all they are entitled to.

page 41

The fallacy of Mr. Richmond's argument is obvious. A Treaty in the ordinary sense is a compact between two independent nations, independent before the Treaty was made, and independent after it was made. Such a Treaty is not within the jurisdiction of the Courts of either nation. For an independent nation cannot be bound by the decision of the Courts of another nation. Disputes therefore between independent nations, respecting the meaning of a Treaty, must be decided by force or by arbitration. Of late even Sovereign powers have inclined to the latter mode. But the Treaty of Waitangi is of a different kind. The parties thereto were independent before, but not after. It is an express article of the Treaty that one party shall there by become subject to the other; that the Maories shall become subject to the Queen, and shall receive the protection due to subjects. "Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection, and imparts to them all the rights and privileges of British Subjects."

It may not be easy to find an exact counterpart to the Treaty of Waitangi: but there is a considerable analogy between it and the Charters and other instruments, by which Princes at various times have granted rights and franchises to their people. Whether the rights of the subject have been, as in Europe for the most part, doled out by Charters wrung from unwilling hands, or given freely and at once, as in this case, makes no difference as to the nature and effect of the compact: the only difference is one of degree, and not page 42 of kind. Now in such cases it has not been left to the Prince to put his own construction upon the Charter; but the franchises of the people have been expounded and maintained by tribunals independent of the Prince.

It is not meant, that the whole complex body of English Law was at once to be applied to the Natives; but it is meant, that the plain and fundamental principles of English Law became applicable at once; that the Natives became at once entitled to the essential rights of British subjects. Amongst those rights surely are the following—that life shall not be taken without a fair trial; that land shall not be taken without a fair trial. "The rights and privileges of British subjects" must mean at any rate the opposite to despotism. The proceedings of the Government at the Waitara were pure despotism.

Mr. Richmond has entirely overlooked the consequences of his theory; namely, that if the Treaty of Waitangi be (as his argument assumes it to be) a Treaty in the ordinary sense, then the right of interpreting and enforcing the Treaty must belong not to one party, but to both equally; that the Natives are at liberty to resort to force in support of their view, as much as the Governor in support of his; and that they cannot be charged with rebellion, if they do so.

However little the theoretical value of Mr. Richmond's doctrine may be, it is a significant and remarkable fact that such a doctrine is put forth. It is remarkable as bearing on the position, which I have maintained, that the Natives at the Waitara, being page 43 British subjects, have not been treated as British subjects. Had it been possible to shew that they have been treated as British subjects, Mr. Richmond would hardly have had recourse to a doctrine which denies them to be British subjects at all, which repudiates the assurances given by word and deed in a vast variety of ways during twenty years, and which puts the Natives in the same position in which they would have stood, bad the Treaty never been made. It should be noticed also, what that is which is now clothed with the name and dignity of "the Crown." "The Crown itself (says Mr. Richmond) is the sole interpreter of the Treaty." (Par. 98.) It might be inferred then to be the duty of the Governor to provide for the Crown the means of interpreting, to ascertain all the facts, to submit them to the Home Government, and to act upon their decision. But Mr. Richmond requires nothing of the kind. In Par. 121 he applies the general principle to the particular case of the Waitara, and attempts thereby to justify the proceedings of the Government in this particular question. This enables us to understand what Mr. Richmond means, when he says that the Crown is the sole interpreter of the Treaty. The Crown then, in Mr. Richmond's sense, does not mean the Queen or the Government of England. They had never authorized, they did not understand, they had no means of understanding, what the Colonial Government was doing at the Waitara, That which Mr. Richmond calls by the name of "the Crown" is in fact the Governor of the Colony, acting in a matter vitally page 46 general character of the people may be more fairly estimated from the large majority who fulfil their contracts without legal compulsion than from the minority, against whom the process of the Courts is resorted to.