I. On the General Principle of Exceptional Laws.

In an earnest and most important letter from Captain Byron Drury, late in command of the Marine Survey in New Zealand, which appeared in the "Times" of November 16 he says, "Extraordinary circumstances require exceptional measures." That such was the writer's opinion, in anticipation of the colonization of New Zealand, twenty-four years ago, may be seen by the following extract from an essay on "Exceptional Laws in favour of the Natives of New Zealand," which appears in a work called "The Present State of New Zealand," published by the New Zealand Association in 1837. The first portion of the Essay is as follows:—

"1. It is possible to oppress and destroy under a show of justice.

"The conduct of Europeans towards the original inhabitants of newly-discovered countries has been for tie most part so recklessly unjust and destructive, that we should seem at first sight to be conferring a great and unwonted blessing on a barbarous race, were we to settle among them as friends, and having purchased their lands from them at their own price, to declare them our equals in every particular, and surround them in precisely the same measure as ourselves by the just and impartial sanctions of British law. Such an assumption, however, would be eminently fallacious. The establishment of the same rights and the same obligations can only be fair between parties who have the same power in the same field; but where one of the parties is immeasurably inferior to the page 13 other, the only consequence of establishing the same rights and the same obligations for both, will be to destroy the weaker under a show of justice. Now, it is obvious that such would be the case with the New Zealanders, or any other barbarous race, if put in competition with the European. And since it is one of the characteristics of civilization, and preeminently so of modern British civilization, that every individual is more or less in a state of competition with every other individual, it may safely be inferred, that were a colony of British to plant themselves in New Zealand, on land purchased from the natives, and on which the natives should continue to reside, under the influence of British law, and on a footing of perfect equality with British subjects, though no cruelty were inflicted, though strict and impartial justice were administered, though posts of honour and emolument were offered equally to all, a species of social attrition would at once begin, and never cease till it ended in the degradation and destruction of the New Zealanders.

"In the mean time, neither the New Zealanders nor the British might be conscious of the process; and its effects might be deeply lamented by those very individuals who were the instruments of promoting its operation, and who, from the long-settled persuasion that the principle of equal laws and equal rights for all' is the great glory and blessing of a well-regulated constitution, would never suspect the possibility of a state of things in which the same principle would be unjust, tyrannical, and oppressive.

"So that it might well be questioned whether it would not be less destructive to conquer the whole country by force of arms, as Britain was conquered by the Romans², and by arbitrary power to make such allotments of the land, and establish such laws and institutions as should be suitable to the state and genius of the people, than to invite them to a community of rights, without placing them in such a position as would enable them to derive page 14 from such rights the same benefit as we should ourselves.

"2. Laws should be adapted to the character and circumstances of those whom they are to govern.

"No law nor any concession of his own could at once convert the New Zealander into a British subject. The very idea of law supposes a preadaptation of nature in those who are to be the subjects of the law. And no power can by an instantaneous operation effect that in the mind and moral constitution of the New Zealander, which has been insensibly imbibed from his earliest years, and inherited from his ancestors, by the Englishman. Since, then, the people are not adapted for our laws, the only course which remains to us is to adapt our laws to the people; acting in the spirit and under the sanction of the philosophic reflect ions of Octavio Piccolomini:—

'The way of ancient ordinance, though it winds,
Is yet no devious way. Straightforward goes
The lightning's path, and straight the fearful path
Of the cannon-ball. Direct it flies and rapid,
Shattering that it may reach, and shattering what it reaches.
My son, the road the human being travels,
That on which blessing comes and goes, doth follow
The river's course, the valley's playful windings,
Curves round the corn-field and the hill of vines,
Honouring the holy bounds of property.'

Coleridge's Translation of Wallenstein, Act 1, Scene 4.

"In order to put these principles into execution, there must be an accurate knowledge of the existing institutions of the country, their present laws, and the genius of the people, as expressed in their language. We must carefully distinguish those which arc radically had, the result of passion, caprice, or vanity, from those which are founded on the permanent principles of human nature; and while patiently removing what is vicious, we should spare whatever is at once innocent and characteristic and sedulously foster whatever may be a germ of future good. To aid us in this work, we should have a sound page 15 knowledge of the principles of human nature, and be well acquainted with the experience of past ages, and the various steps by which former races, possessing the same characteristic traits us the present inhabitants of New Zealand, have been moulded into civilization." 1837.

I now proceed to give some extracts from the "Earnest Address to New Zealand Colonists," published in 1840:—

Of Laws and Civil Institutions for New Zealand.

"I am now brought to a topic which I naturally approach with the greatest diffidence, as it is by far the most important and most delicate that can he discussed with respect to New Zealand, and is beset with difficulties of every kind.

"Those who opposed the New Zealand Association of 1837, were anxious for the establishment of a native dynasty governed by laws framed with an especial view to native interests, and administered by natives. I should have rejoiced had it been possible to realize a project so novel and so chivalrously benevolent to the aborigines. But I believe that such expectations are now given up by every one. It only remains for us to hope that the whole New Zealand question will he taken up by Government, and that the collective wisdom of the legislature will be exerted in the construction of a scheme which shall provide for all the peculiarities of the New Zealand case, and lay the foundation of one uniform, powerful, and happy state.

"The grand difficulty that besets the case is, that at present the sovereignty of New Zealand may be said to be in abeyance. Whether it will be obtained by England, or retained by New Zealand; or whether the country will be parcelled out into little separate sovereignties, (some antier Great Britain, some under single chiefs, and some under congresses of chiefs,) it is impossible to say; and it is therefore impossible to say what individual, or what body of individuals, should be addressed with a view to the establishment of a good constitution and code of laws for New Zealand.

"That neither you nor any other body of Englishmen page 16 resident in New Zealand, can legally enact laws for your own government, has been decided. But it is by no means so certain that you will not be called upon to propose laws to be enacted and executed by the native chiefs in the territory where you reside. This the missionaries of the London Society have done for the natives of Otaheite, and the same tiling might be done with equal propriety by the Church misionarios for the natives of the Bay of Islands, or by you for the natives of Port Nicholson.

"So that,—although I believe you will agree with me in thinking that such a contingency is neither to be expected nor desired,—it will not be altogether out of place to address you upon this subject. And, indeed, whether British sovereignty is established or not, every British inhabitant of New Zealand must exercise an important influence over the future destinies of that country; and the law must leave much to be determined by the opinion and will of individuals, whether acting separately or conjointly.

"One thing I trust may be anticipated with confidence, that some laws will be made, with an especial reference to the circumstances of the natives. For to submit them at once to the rigorous action of British law, would be to oppress and exterminate them under a show of justice,—the most cruel and most wicked way in which a helpless and confiding people can be destroyed.

"For a rigorous subjection to British law they are unfitted on two most important accounts:—1st, Because British law is law suited not for a savage, but for a highly civilized people; and 2ndly, Because British law is law suited for a people of one race;—whereas the inhabitants of New Zealand are of two races, not merely differing in language and national usage, but in every possible way in which two people can be contrasted. Hence the absolute necessity of exceptional or special laws of some kind or other;—of special laws to regulate the course of justice between British and native, and special laws to regulate the course of justice between native and native." 1840.

In illustration of these views I need only refer to the history of New Zealand for the last twenty years, issuing in a state of things which threatens page 17 ruin to the colony, or the extermination of the native race.

The notion of a national sovereignty residing in the whole New Zealand people led to the treaty of Waitangi, which purported to transfer that sovereignty to the crown of England. The effect of this treaty on those who accepted and signed it was to convert them at once into British subjects, and make them amenable to every minute regulation of British law. We shudder at the ruler who wrote his laws in characters so small, and placed them up so high on pillars, that his people could not read them, and punished them for unconsciously breaking them. How then can we defend our own conduct, when we induced the chiefs of New Zealand to bind themselves to a treaty, the nature and obligations of which they could not possibly understand, and which has virtually given them nothing but the privilege of becoming rebels?

See how it works. They sign the treaty in ignorance—this must be so, it could not be otherwise—then when their eyes open to their new relation and its consequences, when they would retrace their steps, and pull down the English flag to vindicate their rights unconsciously let go, our loyalty is roused, we call them rebels, and shoot them down with the highest feelings of self-approbation.

Or we may take another course. We are ourselves the interpreters of the treaty, and though they are British subjects, we need not deal with them exactly as we should with British subjects.

Now this is the principle I have myself advocated. But as it is possible to make exceptional laws in his favour, so it is possible to deal with him in an exceptional way for his destruction. Thus, if they choose, according to their old national customs, to fight tribe with tribe, we may stand by and let them fight it out. And this has been done, as appears by the following extract from the "War in New Zealand." by William Fox:

"Another cause which gave great impulse to the movement, was the declared policy of the Governor not to interfere in armed feuds between native tribes. Such feuds had become rare, but one was raging at Taranaki at the date of his arrival. He then laid down the principle, that unless when the conflict actually occurred within the limits of an European settlement and endangered its peace, he would not interfere. The immediate consequence was, that four intertribal wars were raging in different parts of the island during the following year. While his Excellency's chief adviser in one instance, and subordinate officers of the native department in others, actually stood by and looked on as spectators of the fight. "What could the natives think of such a policy? seemed to them a declaration that they were an independent people, neither controlled nor cared for by British power. It was urged by them as an argument for joining the King movement. 'Let us have a king of our own, then those feuds will he stopped. The Queen is glad to see us kill each other; when we are gone she will take our lands and have nothing to pay.' They would gladly have seen the Governor interfere to prevent their fighting, and any such interference on his part would have mot with general support among them³."

Again, we may restrict him, intending our restriction for his good, and it may do him harm. Because in the days of his ignorance the land-sharks of New South Wales purchased whole districts from him for a mere song, we, for his protection, made a law that no settler should purchase land directly from a native, but that all native land should be sold in the first instance to the Crown, and by the Crown to the settlers. I am not sure whether the price paid 0 the Crown to the native was three farthings or threepence per acre, but the price paid by the settler to the Crown was 10s. At all events, the native now looks upon the law as doing him injustice by giving a monopoly to the Crown, and taking from him the benefit of competition. This has led to the formation of a land-league, or agreement among the natives to sell no more land; and as the Crown must have land, this has led to Governor Browne's determination to purchase Waitara, though King (the chief of the tribe to which the land belonged) forbade its purchase. Whether the chief was right or wrong in claiming to exercise this veto I will not say, but the question was decided by the Governor without referring the matte to any court of law. I think I may say there was no court to refer it to. This led King to prevent the completion of the purchase by force, and this led to that outbreak which has already desolated the fairest province of New Zealand, and now threatens ruin to page 21 the colony, extermination to the natives, and the inevitable maintenance of a wearisome and expensive war to England.

Take another instance of the mischief which arises From neglecting to give them laws suited to their circumstances. About five years ago the instinct of political life originated among them what has been called the New Zealand King movement. They elected a King to rule over them, as the Governor rules over the British settlers. How was this treated? Was it regulated so as to make it a serviceable feature of the political system of the combined races, or was it put down? Neither one nor the other. It was regarded as child's play, not worthy of a thought—"mere talk." And now it has assumed dimensions which make it no less alarming for all Spies than the war with William King: indeed the last battle seems to have been fought with its partisans. And Mr. Brodie, in his letter to the "Times" of December 25th, regards the King movement as a more important one than the land-league.

Here then are the results which have followed from not making special laws with a view to our relations with that people and theirs with us. On all sides disaster to the colony, extermination to the native, dishonour and expense to England, stare us in the face. And this when there is nothing which the New Zealanders themselves so much desire as to have laws given to them.

Long before the colonization of New Zealand, a letter was written by a New Zealand chief to Mr. Marsden, the first Missionary, entreating him to give them laws on various specified subjects; and it was the want of laws suited to their peculiar circumstances which appears to have originated the Native-king movement. "I want order and laws," said a chief in reference to that movement; "a king would give these better than a governor. The Governor never does any thing, except when a Pakeha is killed; we page 22 are allowed to fight and kill each other as we please, A king would end these evils.⁴"

The great influence which the missionaries had acquired over the natives, assures me that all this was perfectly true at the time when it was written, and I believe it would be found to be perfectly true now if the New Zealander were treated with by persons having the power as well as the will to make laws for the common benefit of the two races.

I close this portion of my work by one more extract from the "Earnest Address:"—

"I. I think the first business of the British constitute] authorities, in reference to criminal affairs, should be to observe and not to act.

"(1.) To arrange and classify according to their different amounts of guilt the various crimes and enormities habitually committed by New Zealanders.

"(2.) To observe and ascertain the different degrees of criminality or illegality which may be attached to them, according to New Zealand estimation.

"(3.) To inquire what punishments, either in accordance with the lex talionis, or in any more formal manner, are usually awarded to particular crimes.

"(4.) To inquire what nativo customs respecting crime might with advantage be systematized and consolidated, so as to make punishment fixed and distinct, instead of random and uncertain; what native customs should be abolished as being in themselves criminal and contrary to humanity, and what new penal laws should be enacted.

"But let it not be supposed that in dissuading from an early exercise of penal measures, I mean that criminal acts ought not to be prevented. Let every effort be made, let no pains be spared, to prevent them. Were a murder about to be committed, either of a child by its mother, a slave by its master, a victim by the priest, or a captive by the conqueror, there is a law above every law, which would impel us to rush in and prevent the butchery, even at the risk of our own life. In such cases the authority of the British magistrate may safely be interposed; and it is to be hoped that his calm presence and strong prohibitory arm will be sufficient to put an effectual stop to all such proceedings throughout New Zealand. There must be in every human soul, civilized or savage, such an innate consciousness of the guilt of such actions, as to invest with a character of rectitude the power interposed for their prevention, even though that power have no civil right to exercise its authority for such a purpose; and these firm prohibitory acts would deepen in the New Zealand mind, the innate sense of the guilt of such atrocities, as their own old customary usage has long tended to weaken it. But it is one thing to prevent a crime, and it is another thing to punish it by death when it has been committed.

"II. Whatever laws issuing from British authority are brought to bear upon the natives, ought first to have the page 24 sanction of the natives themselves, and afterwards to be thoroughly made known throughout the country. The office analogous to that of herald which they are said to have among themselves, would probably afford facilities for this measure. It appears to me that if this be not done; the course pursued in order to invest Great Britain with the sovereignty of the country is a deception. If native consent is necessary in the one case, it is also necessary in the other. British sovereignty is not British despotism, and will not authorize an overthrow of the institutions of the country. The natives should find that the establishment of our dominion on their shores is not the annihilation of their political existence. It is evident from the measures which they take previously to the alienation of their lands, that they have some kind of social organization among themselves; that they have methods for ascertaining the public will, and making is the rule of their proceedings. This certainly ought not to be abolished, but modified in such a manner as to find its place among the future institutions of the country. It ought especially to be made use of in order to lay before the natives, and confirm by their sanction any change which it may be desirable to make in the cut tomary law of their country respecting criminal matters.

"III. The difficulty of establishing a good penal code in New Zealand may suggest the advantage of adopting in the case of an infant people, what is found so advantageous in the training of all other infants, the principle of rewards and honours. This principle is incompatible with an advanced condition of society, where a knowledge of the benefit of right doing is motive sufficient for the great majority; but there are many reasons for its adoption in the management of New Zealanders. For they, like infants, will not practise what is right for its own sake; but will easily be led to prize it for any arbitrary value we may append to it; and will by habit learn to esteem it as it deserves for its intrinsic worth.

"No objection on the ground of right can be made against this mode of governing, if we establish a system of rewards and honours, we make for ourselves a legiti- page 25 mate and merciful instrument of punishment, by having the power of withholding rewards and depriving of honours.

"And it would be for from difficult to devise a system of rewards and honours, which, with very little expense and trouble to the settlers, would be most highly valued, and afford the strongest impulse to good conduct among the natives.

"One mode of conferring honours would be to place them in offices of authority and trust. It is a fact confirmed by the testimony of those who have had experience in the training of youth, whether in the navy or in public schools, that the very circumstance of being placed in a position of trust and authority, has often proved sufficient to call forth the qualities required for its discharge, where before there were no symptoms of their existence.

"Nor would distinctions purely honorary be without their use. One might, perhaps, suggest a ribbon, or a medal, or enrolment in an order of merit."

There is probably exaggeration in this, as the settler is telling bis own story, but it indicates very plainly—not that British law as it exists should be enforced strictly on the native, a measure which could not be accomplished without a power sufficiently great to overcome all resistance, and crush out disobedience even at the risk of crushing out the whole race, but—that we should make laws which, while equally binding on and beneficial to both races, should be framed with an especial reference to their relative origin, character, and circumstances; and which, recognizing in the native the existence of political rights, and ratified by his sanction and concurrence, would enable us to enlist his arm in aid of our own for their enforcement.