Major Bunbury to Lieutenant-Governor Hobson.—(Ib. page 109.)

"June 19.—We arrived off the island of Kapiti; several canoes were leaving the Island, and, on my preparing to go on shore, fortunately the first page viii canoe we met had on board the chief Rauparaha I was so anxious to see. He returned on board with me in the ship's boat, his own canoe, one of the most splended I have yet seen, following. He told me that the Rev. Mr Williams had been there, and had obtained his signature to the Treaty.

The following notes have been supplied to me by Mr. W. T. L. Travers, who acted as Counsel for the natives on the re-hearing of the Manawatu case in Wellington in 1869 before Chief Judge Fenton and Judge Maning, and who has since written a memoir of the life and times of Te Rauparaha. Mr. Travers explains to me that his knowledge of the case was, at the time he acted as counsel, very limited; but that since, when writing his memoir of Te Rauparaha, he had occasion to enquire more fully, and thereby obtained more accurate information upon the subject.

T. C. W.

Points to be considered in connection with criticism of the judgments of the Native Lands Court in the several Manawatu cases, as affecting the rights of the Ngatiraukawa.

1st. What is the duty of the Court in regard to the evidence of title?

Upon this point, inasmuch as the Ngatiraukawa and their allies rest their title upon conquest and subsequent continued occupation as of right, after over-coming and in spite of every opposition on the part of the previous possessors, the Court ought to determine the meaning of the word "conquest" as generally applied in such cases. I conceive that it would be held to mean "the forcible taking and subsequent settled occupation of territory, by a foreign people, in spite of, and after overcoming the opposition of the existing possessors of the soil."

Such, for example, amongst civilized nations, were the conquest and occupation of England by the Romans, and the conquest and occupation of the northern parts of Spain by the Moors. The conquest, in each of these cases, I has never been disputed, notwithstanding the original possessore were enabled, at a future time, to resume possession of the conquered territory by forcibly ejecting the conquerors.

Such, in the case of uncivilized peoples, are the numerous instances of Conquest recorded as having occurred amongst the aboriginal tribes of North America and the various parts of Asia, of which abundant accounts are to be found in the histories of both countries.

In all these cases the conquered territory was forcibly taken, and afterwards peaceably occupied by the conquerors for long periods, in spite of all opposition on the part of the previous possessors of the soil.

A perhaps more pregnant instance is that of the conquest of England, by page ix William the Norman and his forces. In this case although for a long period, there was no fusion of the two races, and although the Saxons where suffered to remain in quiet occupation of a large proportion of the lands of the realm, their title no longer depended upon that occupation, but was solely referable to the feudal system established by the Normans.

I have carefully studied all I could learn of the customs of the Maories in regard to the acquisition and occupation of territory by virtue of conquest, and I find nothing in their customs at variance with those which obtain amongst other people whether civilised or uncivilised. In their case, as in all others which I have studied, I find the definition I have given to be applicable, but I also find that where portions of the original possessors are allowed to remain in peaceable possession of parts of the territory, they are held to owe allegiance to the conquerors, and to occupy only upon the admission of such allegiance. Of course there are numerous instances both amongst civilized and uncivilized peoples, in which part of the inhabitants of a territory have held their own, in spite of all attempts on the part of invaders, who had effectually conquered the adjacent parts to reduce them to subjection. Such were the cases of the Welsh people, of those of the Basque Provinces of the north of Spain—amongst quasi-civilized peoples—those of the inhabitants of the mountainous districts of Ceylon, and of many mountain tribes in India, and of certain tribes in Algeria, in quite recent times. No doubt in all these cases the conquest was never sufficiently complete to enable the invaders peaceably to occupy, although they might have been sufficiently powerful to defeat the invaded people, whenever they met in battle. The nature of the country, had, however, much to do with the result in cases of this kind. No doubt in the case of the Ngatitoa and Ngatiraukawa conquest, those persons of the conquered tribes who were found living amongst the conquerors at the time of the colonization, would be looked upon by us, in accordance with the well known principles of English law, to be part of, or incorporated with the conquerors, and might fairly be held, on general principles, to be entitled to claim from the conquerors an allocation of sufficient territory for the purposes of necessary occupation. The allocations made by the Ngatiraukawa to the Ngatiapa on occasion of the sale of the country to the north of the Rangitikei and subsequently that of the Upper Manawatu or Ahuoturanga block to Rangitane, were allocations of this class, and were, in each case, in my opinion, an ample recognition of their rights. I contend, moreover, that the Court cannot properly determine what were the relative positions of the conquering and conquered peoples in the cases in question, (I using the terms conquerors and conquered advisedly, after a very careful investigation of all the circumstances), page x unless it puts itself back as making that enquiry before the commencement of the colonization of the Islands. In other words, the circumstances existing in the year 1838, ought alone to be taken into account as determining their relative positions. No doubt the Court will say it has done so, but it has refused all that class of testimony which, in such a case, must be looked upon as alone impartial, and has confined itself to the evidence of individuals belonging to the contending parties, regardless of the fact that both are directly interested in misrepresentation.

2nd. Nature of evidence to be received.

Whilst I admit that it was impossible to exclude the testimony of the litigant parties themselves, I think it was the duty of the Court to have ascertained whether any impartial testimony of a trustworthy character could be obtained, which would incline the balance the one way or the other between the necessarily directly conflicting evidence of litigants themselves.

Many additions might be made to these classes of evidence, all of which, as I contend, ought to have weighed with the Court in determining upon the testimony of the highly interested litigant parties. A careful perusal of a large mass of such documentary evidence, coupled with viva voce accounts received from living witnesses has satisfied me, and would, I believe, satisfy any impartial inquirer, that the claims of the Ngatitoa and Ngatiraukawa, upon the country from Kukutaueki to Wangaehu, were properly founded upon a complete conquest, followed by occupation, as of right, down to the date of the colonization, and that the original occupants had been completely reduced to subjection, and could, at most, claim a limited interest in the soil as having become incorporated into the ranks of the conquerors.^* To hold otherwise is, in my opinion opposed to all the facts of history, and to base the judgments upon a most unphilosophical and unsound view of so-called Maori custom.