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The Pamphlet Collection of Sir Robert Stout: Volume 10

* Page 5. Note 2

* Page 5. Note 2.

Mr. Busby's statement is cited as if it were entirely opposed to mine. In reality, the only difference between us is as to the origin of the rules: a question upon which it is unnecessary to enter.

To shew this I set out the whole paragraph, of which only the first sentence is cited in the Note:—

"I have no hesitation in saying that the rules which Sir W. Martin lays down, as established by a singular concurrence of the best evidence, are not rules of native origin. That they have been' generally accepted and acted upon by the natives' in the later periods of their dealings in rested to lands, I do not dispute; but they are natural and necessary deductions from the proceedings to which our own countrymen bad recourse, in order to obtain an equitable title to the lands which they purchased from the natives. It is not mort than twenty-five or thirty years since the native first began to look upon land as an object of exchangeable value."—(Mr. Busby, page 7.)

page 4

In page 8, Mr. Busby again carries back the existence of those rules to a time previous to the foundation of the colony.

"In fine, the result of my experience during the seven years in which I held office, was a conviction that the natives had no idea of property in land, such as exists in the minds of the people where it has been the subject of legislation. And that the rules which Sir W. Martin lays down, were not rules established by natives, but suggested by the precautions adopted by our own countrymen in order to obtain a title which could not be justly disputed."

These admissions are quite sufficient. Indeed there is no real contradiction between Mr. Busby and myself as to the existence of rights of property among the natives. The difference is in the sense given to the word "right." Mr. Busby uses the word in the legal sense, as that which has a corresponding remedy, and is supported by some law.

He says in page 5:—

"In these remarks we have only to do with the rights of property, as they are necessarily understood by jurists and statesmen, implying corresponding obligations to respect such rights. In this sense I do not hesitate to say that, so far as we can trace their history, there is no evidence of the New Zealanders ever having possessed any rights, with the exception of those which were created by the Treaty of Waitangi. Of what use is it, practically, for a man to say I possess a right to my page 5 property, when there is no law to define the obligations which are created by such a right or government with power to administer the law. supposing it to have existed? New Zealand was, in an emphatic sense, a country without a law and without a prince."

I use the term for that which was acknowledged and warranted by custom, though there was no law in our sense to uphold it.

I subjoin a passage from a speech delivered by Mr. Dillon Bell in the House of Representatives, 3rd of August, 1860:—

"We know how at the great original migration the occupants of the first canoes took possession of the land; we know how it became subdivided as the tribes increased, and the hapu branched off from the iwi; we know how particular and distinct titles arose as land was subdued by cultivation, as hunting grounds were claimed for catching the rat, as weirs were erected in the streams, or as numberless other special acts of ownership were exercised; we know horn these distinct titles still merged in the tribal title, and did not destroy it: these are customs universally recognized, lying (as I said) at the foundation of native tenure throughout the islands."—(New Zealander, Aug. 8th, 1860.)

It may be well to say that I have never intended to uphold the tribal or communal right as a good thing in itself. I assert it only as a fact which now page 6 exists and which has existed from time immemorial. It was the only way in which the tribal form of society could be kept up. For to alienate land to a stranger, was to alienate to one who might any day become an enemy. The whole tribe therefore was interested in the matter for the sake of its own independence. It was something like what we call an Alien Law. Afterwards when the Pakeha came, it acquired a new meaning, but one of scarcely less practical importance to them. It is a question of great moment to them, whether a single man or a few men may, without the consent of their fellows, introduce into the midst of their cultivations an ineligible neighbour whose cattle may range over their unfenced land, or who in a variety of other ways may injure or annoy the rest of the community. Nor would the social evil be less. Such a principle would be fertile of quarrels. It would offer an opportunity to every ill-disposed man to gratify private resentment, and to embroil his tribe with the Pakeha. In this very case there are indications of something of this kind.

It is for the interest of both races that individual rights should be substituted for the right of the Community, as far as possible. But this can only be effected by rational means, not by mere force.

* These references are made to the pages of the London edition of "The Taranaki Question," by Sir W. Martin.