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The Pamphlet Collection of Sir Robert Stout: Rare Volume

(K.) Page 23. — Subsequent Measures of the Colonial Government

(K.) Page 23.

Subsequent Measures of the Colonial Government.

On the meeting of the General Assembly in August, 1860, the Responsible Ministry introduced a Bill to be entitled "The Native Offenders' Act, 1860." It encountered very strong opposition, and while these remarks were passing through the press, it became known that, in consequence of the page 42 motion for going into Committee having been carried only by the casting vote of the Speaker, it has been withdrawn. Its abandonment is here recorded as a matter of deep thankfulness. But it serves to illustrate the policy of the present New Zealand Government towards the natives, and publicity is now given to its provisions, to show the necessity for the introduction of some such measures as are calculated to secure for the natives a full and fair consideration of their rights and interests.

The exorbitant powers which would have been conferred by this Bill over the rights both of person and property, in the case too of British Subjects, will be at once seen from the offences which it created, and the penalties which it imposed; and which might at any moment and over any extent of country, have been called into active operation by Proclamation, on the sole responsibility of the Governor.

The objects of the Bill are stated in the Preamble :—

"Whereas Aboriginal Natives, after committing offences against the law, occasionally escape to remote districts, and are there harboured by Chiefs and Tribes who refuse to deliver them up to justice : And whereas also combinations are occasionally formed amongst Aboriginal Natives for the purpose of resisting the execution of the Law and for other unlawful purposes : And whereas it is expedient, in order to enforce obedience to the Law in the cases aforesaid without the employment of military interference, that the Governor should be enabled to prevent dealings and communications with the Aboriginal Natives offending as aforesaid : Be it therefore enacted, &c."

Clause I gives the short title, "The Native Offenders' Act, 1860."

By Clause II the Governor was authorised to declare that all or any of the provisions of the Act shall apply to any specified district.

The offences it proposed to create are :—

"III. Whenever any district shall, by virtue of any such proclamation, have been declared and be subject to the provisions of this Act, every person who, without the written permission of the Governor first obtained for such purpose, shall do any of the acts next hereinafter specified, shall be deemed page 43 to be guilty of an offence against the provisions of this Act and shall be punishable accordingly, as hereinafter provided, namely, every person—
"(1.)Who shall wilfully visit any part of such district, either by land or water, or, not being a resident thereof, shall remain therein after having become cognizant that the same is subject to the provisions of this Act.
"(2.)Or who shall knowingly purchase, or carry by land or water, or receive, any goods or chattels whatever the produce of such district, or the property of any aboriginal Inhabitant thereof.
"(3.)Or who shall purchase or otherwise obtain any goods or chattels for the use or benefit of any aboriginal Inhabitant of any such district.
"(4.)Or who shall knowingly sell any goods or chattels whatever to any aboriginal Inhabitant of any such district, or to any person with intent that the same may be applied or disposed of for the use or benefit of the aboriginal Inhabitants of such district, or any of them, or who shall otherwise carry on trade or commerce with such Inhabitants or any of them.
"(5.)Or who shall knowingly and wilfully hold any communication or correspondence whatever, directly or indirectly, with any aboriginal Inhabitant of any such district.
"(6.)Or who shall by counsel or otherwise assist, invite, or encourage the inhabitants of any such district to offer or continue to offer resistance to the execution of the Law, or shall publish or utter in writing or by word of mouth, any language calculated to invite or encourage such resistance with intent to produce that effect.
"(7.)Or who shall refuse or wilfully neglect to depart from or leave any such district within a time to be fixed by the Governor by any writing under his hand, after having been personally served with a copy of such writing, or otherwise made aware of the contents thereof.
"(8.)Or who shall aid, assist, or abet any person in the commission of the above-named acts, or any of them, or shall knowingly excite, encourage, solicit, ask, require, page 44 or induce any person or persons to commit, or aid, assist, abet, or join in the commission of any of the above-named acts."

Clause IV gave the Governor power to declare tribes or individual natives subject to the provisions of the Act.

The penalties are contained in Clauses V, VI, VII :

"V. Every person who shall be convicted in a summary way before two Justices of the Peace of any offence under this Act shall for the first offence forfeit and pay any sum not exceeding the sum of, £100 as to the said Justices shall seem meet; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in a summary way before any two Justices of the Peace, every such offender shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labour for such term not exceeding twelve calendar months, or less than six calendar months, as the convicting Justices shall think fit; and if any person so twice convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted thereof before a Court of competent jurisdiction, shall be liable to be punished by penal servitude for any term not less than three years, and not exceeding six years, as such Court shall think fit.

"VI. Provided always that it shall be lawful for the Governor to commute the punishment to be awarded on a second or third conviction for any of the said offences, to banishment from the colony of New Zealand for such term as he shall think fit, and to order and cause such person to be removed from the said Colony accordingly, to such place to be approved of by the Governor, as the person so to be banished shall choose, and in default of his making such choice on being called upon or required by the Governor so to do, then to such place in Her Majesty's dominions as the Governor shall direct or appoint.

"VII. If any person who shall have been so banished and removed as aforesaid, shall be at large in any part of the Colony of New Zealand without lawful cause before the expiration of the term for which such person shall have been ban- page 45 ished, every such person being thereof lawfully convicted, shall be liable to penal servitude for any term not less than four years, and not exceeding ten years."

Summary jurisdiction over property, without a hearing on the part of the accused, and without requiring any previous primâ facie evidence as to its being stolen property, was thus vaguely and arbitrarily given in Clauses VIII to XII.

"VIII. All goods and chattels personal of whatsoever kind, or wheresoever found, of any aboriginal inhabitant of any district, or of any tribe of aboriginal inhabitants, or of any aboriginal native respectively, subject to the provisions of this Act, may be seized by any person authorised by the Governor to make such seizures, and when seized shall be delivered into the care of some person to be appointed by the Governor in that behalf.

"IX. All ships, vessels, boats, barges, punts, and canoes, and all vehicles, employed or used, and all goods or chattels personal, dealt with in any manner in contravention of the provisions of this Act, to whomsoever the said ships, vessels, boats, barges, punts, canoes, vehicles, goods, or chattels may belong, may be seized by any person authorised as aforesaid, and when seized shall be delivered into such care as aforesaid.

"X. Whenever any goods or chattels personal, ships, vessels, boats, barges, punts, canoes, or vehicles shall have been so seized and delivered as aforesaid, the person into whose care the same shall have been delivered shall forthwith cause a notice giving full particulars of such seizure to be published in all the newspapers published in the Capital Town of the Province in which the seizure shall be made, and if there be no such newspapers then in such other way as may be calculated to give full publicity to the same, and shall by such notice warn all persons having any claim in respect of such seizure to prefer the same to the Resident Magistrate of such Capital Town within twenty-eight days after the day of the first publication of such notice.

"XI. On such claim being made the said Resident Magistrate shall fix a day for the purpose of hearing the same, and shall, at the request of the claimant, issue a summons calling page 46 upon the person in charge of the property seized to appear. On proof of the due service of such summons it shall be the duty of the Resident Magistrate to examine the claim, whether the person so summoned be present or not, and either to condemn the said property as liable to seizure under this Act, or order the same to be given up to the said claimant, as to such Resident Magistrate may seem just.

"XII. If no claim shall be made in respect of any seizure within the time fixed for claiming the same, or, if made, it shall not be duly prosecuted, or if the property seized shall have been condemned in any such case, the property seized may be sold in such manner as the person in charge of the same shall think fit, and the proceeds arising from such sale shall be disposed of in such manner as the Governor shall direct."

Clause XIII indemnified persons acting under the authority of the Governor in pursuance of the provisions of the Act.

Clause XIV provided that no prosecution under the Act should be commenced without the authority of the Governor, and "that the production of any written authority, either general or special, and either previous or subsequent to the act done," for the purposes of the Act, "purporting to be signed by the Governor, shall be primâ facie evidence of such authority having been given."

The preamble of this Bill recites that its object was to enable the Governor "to enforce obedience to the law" "without the employment of military interference." It may reasonably be doubted whether the inhabitants placed under the ban would quietly submit to outlawry and civil excommuninication; and especially whether they would permit the comprehensive seizures contemplated in Clauses VIII and IX without resistance; or even whether friendly tribes and chiefs would submit to be debarred from all intercourse with their proscribed fellow-countrymen. It would be impossible to carry out such a measure without the general support of the people, a support which there is no probability that they would give.

The obstructions it would have placed in the way of the whole body of Missionaries are too obvious to require notice.

London: T. C. Johns and Son, St. Bride's, Fleet Street.