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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

No. 36. — Memorandum on Bishop Selwin's Protest

No. 36.
Memorandum on Bishop Selwin's Protest.

Auckland, 25th May, 1860.

His Excellency's Responsible Ministers recommend that the letter recently addressed to the Acting Colonial Secretary, Mr. Tancred, by the Bishop of New Zealand, in which his Lordship records his deliberate protest against the statements contained in a resolution of the Provincial Council of Hawke's Bay, be forwarded to the Secretary of State for the Colonies, together with the resolution which called forth the protest.

Ministers make this recommendation because the Bishop's letter is the only tangible manifestation of his Lordship's opposition to the course taken by His Excellency in reference to the purchase of Teira's block at Waitara—an opposition which is nevertheless open and active in the colony, and likely to be influential wherever the facts of the case are imperfectly known. For the Bishop of New Zealand may claim to be regarded, in matters affecting the relations of the settlers and Natives, as a disinterested witness—a character which will (rightly or wrongly) generally be denied to colonists. It should, however, be remembered that the philanthropist, notwithstanding the high ground he takes— which gives him perhaps an undue advantage in public opinion over those who are discharging the ordinary duties of life—is often found to be liable, even beyond other men, to the disturbing influences of prejudice and passion. The Abolitionists of North America, for example, are certainly disinterested, but few statesmen will hold that they take a sober and just view of the great question of humanity, to which they have devoted their lives.

It is not easy for supporters of His Excellency's policy to meet an attack so indirect as that which his Lordship the Bishop has made in the protest under consideration. Notwithstanding that his Lord-ship styles the document his "deliberate protest," it ought probably to be regarded rather as the outbreak of irrepressible feeling than the expression of calm and matured opinion; and it is for that reason, but only for that reason, difficult to meet it at all points with a logical reply.

The real matter of the protest is contained in its third clause, which is as follows: "Because, in entire opposition to the resolution in question, I claim, on behalf of the New Zealanders,—(1.) An investigation of all questions relating to their title to land before a regular tribunal, with the usual safeguards against partiality or error, viz., evidence on oath, arguments of counsel, and a right of appeal; (2.) That military force shall not be employed until the civil power shall have been tried, and shall have been found insufficient to carry out the judgment of the Court; (3.) That, inasmuch as this colony was avowedly formed, not for the acquisition of territory for the English race, but for the protection of the New Zealanders, this primary object shall not be sacrificed to the aggrandizement of the English provinces."

Looking to the whole tenor of the Bishop's letter, and to the attitude of open opposition to the Governor which his Lordship has unfortunately assumed in reference to the Waitara land question, His Excellency's Ministers have no hesitation in treating the three subdivisions of the clause as really meaning—

I.That William King's right was not fully and fairly inquired into:
II.That military force was prematurely employed to take possession of the land at Waitara:
III.That the interest of the Natives of the Taranaki district has been sacrificed in the transaction to the interest of the European settlers.

It is proposed to reply to these charges in succession, adverting to various collateral topics.

I. In answering the charge that the right of King was not duly investigated, Ministers would, in the first place, refer to their memorandum of 27th April, 1860, as showing that the negotiations for the purchase of the block in question were carefully conducted, and unusually prolonged.

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Secondly, it is to be observed that William King has never put forward any proprietary or other claim, of a nature that would be recognized by the British Government, to the land on the south bank of the Waitara. A few words will here be necessary to call the attention of the Secretary of State to the position which has been taken by the British Government in reference to the Taranaki land question, and to explain the true nature of King's pretensions.

Governor Sir George Grey, on the occasion of his visit to New Plymouth in 1847, distinctly repudiated the claims of the Atiawas who had returned, or might return, to Taranaki, to anything beyond fair compensation for the value, as wild land, of the block comprised in Mr. Commissioner Spain's award after proper reserves should have been made for them. Accordingly, his instructions to Mr. McLean (the present Chief Land Purchase Commissioner), which bear date 5th March, 1847, after directing that ample reserves should be made, and not exceeding 1s. 6d. per acre offered for the residue of the block, declare that "those Natives who refuse to assent to this arrangement must distinctly understand that the Government do not admit that they are the true owners of the land they have recently thought fit to occupy." (Parliamentary Papers, December, 1847, p. 12.) Notwithstanding this explicit declaration, which accords with what Governor Grey had previously announced to the Natives at his interviews with them (see his despatch to Earl Grey, ibid., p. 4), he thought proper (probably on grounds of policy) to acquiesce in the assertion of proprietary rights by the ancient occupants; and the precedent thus set has been followed by His Excellency the present Governor. On the occasion of the Waitara purchase the proprietary right has been respected in the persons of Te Teira and the other members of his section of the tribe, who will be paid at the rate of £1 per acre for the land they cede. King fully admits their rightful ownership, and opposes the sale on another ground.

The right set up by King is simply the old title of the Maori chief—the right of the strong arm, which he asserts under quite novel circumstances. At the meeting in March, 1859, when Teira's offer was accepted by the Governor, King plainly took his stand: "Waitara," said he, "is in my hand; I will never let it go" —thus defying Governor Browne, as he had before defied Sir George Grey. It is well known that when King, in 1848, deserted his pa and cultivations at Waikanae, and was moving northward to Taranaki, Sir George Grey forbade him to settle on the south bank of the Waitara. But King, having first obtained the leave of Raru (Teira's father) to build his pa on the south bank, disregarded the Governor's prohibition, and now pretends to claim Waitara in virtue of a species of conquest achieved by his defiant return.

The European apologists of King, as might be expected, are not satisfied with the naked simplicity of this claim, but have contrived a more elaborate and technical defence. By a strange jumble of Maori customs with the feudal notions of English law, they assert that King is now entitled in Taranaki to what they call "a manorial right"—a species of minor sovereignty—over the whole district. This right, they assert, has survived the migration to Cook Straits of King's section of the Ngatiawa, which they declare was voluntary, and not in fear of the northern tribes, and which took place twenty years before King's return. Being based upon neither the English nor Maori rule, but upon a compound of the two, uniting the advantages afforded by either law to antiquated claims, this right is supposed to be unaffected by the Waikato conquest, the consequent slavery or dispersion of the remnant of the tribe, and the transfer of the title of the conquerors to the British Government. Nor is it prejudiced by the fact (vouched for by Mr. Spain) that Colonel Wakefield's original treaty for the purchase of the district was entered into with the approbation of some, and with ample notice to all, of the Ngatiawa chiefs, including King's own father. Every other claimant, it is admitted, has been satisfactorily dealt with; but, in virtue of this shadowy pretension, King, it is asserted, is now justified in putting his veto upon the cession of the rights of the aucient Ngatiawa occupants of Waitara, in refusing all propositions for the settlement of this long-vexed question, and even in armed resistance to the British Government.

Considering the position assumed by Sir George Grey upon the Taranaki land question, and that nothing has ever been put forward by King, or on his behalf, but pretensions which are either insolent or flimsy, it will scarcely be thought that his claim admitted of elaborate investigation. Had he set up any right of ownership, it would doubtless have been looked into by the experienced officers intrusted with this duty. But King has repeatedly disclaimed any such right, and admitted Teira's proprietary title. This has been shown at large in Ministers' memorandum of 27th April, 1860, already cited.

The question of Kingi's rights over Waitara, it will be observed, is a special one, and is quite independent of the vexed question of the right of Maori chiefs over the lands of the tribe, which is probably incapable of any general solution. It may be true, as is alleged, that where a tribe has a recognized head such head has, according to Maori usage, a power distinct from any right of ownership of prohibiting the alienation of any part of the lands occupied by members of the tribe. The question does not, it is repeated, arise in the present case, or it would deserve consideration how far the exercise of such a right is consistent with the stipulations of the Treaty of Waitangi, whereby the chiefs, parties to the Treaty, yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be pleased to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Thirdly, as it is partly implied in what has been already stated, the facts of the case were not simply known, but notorious and undisputed. On this ground, therefore, no elaborate investigation was requisite, and the purchase might without blame have been speedily concluded, though in fact its transaction occupied eight months.

Lastly, the matter, it has been already shown, was, to all intents and purposes, res judicata. But, had this been otherwise, a trial "with the usual safeguards against partiality or error, viz., evidence on oath and arguments of counsel," would, under the circumstances, have been something more ludicrous than has yet been seen in our public dealings with the New Zealanders, which is saying a great deal. To suppose that King would have submitted himself to the jurisdiction would be a piece of such pure simplicity that it is impossible to imagine that the Bishop of New Zealand really believes he would have done so.

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As regards his Lordship's claim on behalf of the New Zealanders of a regular judicial investigation of all questions relating to their title to land, his Lordship's anxiety to see such a tribunal established, and rendered effective, cannot exceed that of the Governor and his Ministers. All persons at all acquainted with the affairs of New Zealand are aware that the difficulty in the way of the establishment of such a tribunal lies with the Natives themselves. One of the grounds lately assigned by the Imperial Government for withholding the Royal assent from the Native Territorial Rights Bill, 1858, was the likelihood that the award of the Governor in Council, or of such tribunal as His Excellency in Council might appoint for the investigation of Native title, would not be acquiesced in by the contending parties.

The New Plymouth case is a particularly unfortunate one in which to advance the claim for forensic discussion and investigation, since Mr. Commissioner Spain's award was made after precisely such a trial as his Lordship, with characteristic emphasis, now demands on behalf of the New Zealanders. Mr. Spain's decision was, it is known, utterly disregarded by the Natives, and their turbulent conduct induced Governor Fitzroy to set it aside. The Bishop must be aware—certainly no one else in the country is ignorant—that the Natives in their present state, though ready to take advantage of favourable decisions upon such questions, would never voluntarily submit to an adverse one.

The investigation of the Native title to land offered for sale has been left to officers of the Executive Government, partly because from the habits of the Natives the truth can be better got at by desultory conversations and examinations extending over a long space of time than by the peremptory procedure of a Court of law; partly because reasons of policy ought to be taken into consideration by Government which could not be admitted as elements in the decision of a judicial officer. The flexible practice of the Land Purchase Department—which is under the direct control of the Imperial Government—admits of concessions to the Natives not justifiable upon any ground of strict principle. It cannot be unknown to the Bishop that the arrangement of which he complains is beneficial to the interests of the Natives—if indeed it be beneficial (as his Lordship generally appears to think it) to yield to them upon almost every occasion upon which there is any show or likelihood of resistance or dissatisfaction on their part.

The purchase of the Bell Block at New Plymouth was a transaction in which the methods of investigation pursued did not differ from those adopted in the instance of the Waitara Block. Yet his Lordship, while he condemns the present transaction as concluded upon insufficient inquiry, has in a pastoral letter signified his complete approval of the manner in which the Bell Block was acquired. (See Pastoral Letter of the Bishop of New Zealand to the members of the Church of England at New Plymouth, 1855.)

II. The second charge is that military force was prematurely resorted to. The facts are shortly as follow: The party which attempted the survey on the 20th February was met by from seventy to eighty of W. King's Natives, who seized the survey instruments. A short struggle ensued, in which a Native who accompanied the survey party struck down one of Kingi's men. The District Land Purchase Commissioner (Mr. Parris) thereupon rushed in to prevent further collision and probable bloodshed, and directed the surveyors to retire. Unquestionably the interruption of the surveyors was a formal act of defiance on the part of the Natives. On the 4th of March the block was occupied by the troops—not as a military operation against King, but in support of the civil power. As to the proclamation of martial law, that was a measure of precaution rather intended to restrain, if necessary, the Europeans than directed against the Natives. Actual force was not used until a fighting party of King's people had erected a pa and danced the war-dance upon the disputed ground, and had contemptuously rejected a summons by the Officer in Command to evacuate the pa.

Immediately after the offer of land to the Governor in March, 1859, King wrote to the Waikatos for aid in resisting the sale of the block, and before the troops moved to Waitara he had prepared two strongly fortified pas, well stored with ammunition, and had sent letters to all parts of the country requesting support. It will scarcely be believed that King would have proved amenable to the civil authority when he had been thus actively preparing for armed resistance to Her Majesty's Government. And surely it is blind unreason to expect that a Maori chief with a hundred or two of armed followers prepared to do his bidding whatever it be, and who has set at defiance successive Governors, can or ought to be dealt with in all respects as a loyal and peaceable citizen.

III. Upon the third and last head Ministers remark that the interest of the Natives, no less than that of the colonists, requires the settlement of the land question in Taranaki, which has been an open sore for sixteen years. Sir George Grey, in his despatch to Earl Grey of 2nd March, 1847 (Parliamentary Papers, December, 1847, p. 2), remarks, "These individuals [of the Ngatiawa, in Taranaki] have been quarrelling amongst themselves regarding their respective claims, and, in order that there might be much to pay for, have prevented the Europeans occupying any additional land, although many hundred thousand acres of the richest soil are lying perfectly neglected and useless, whilst many European families have been left in comparative want. Indeed, the inability of the Natives to adjust their respective claims now makes them unwilling to allow the land to be sold at all, and they constantly assert that those Natives who wish to sell land have no right to dispose of it." Such is the testimony of a dispassionate witness. The quarrels to which Sir George Grey alludes have gone on increasing in bitterness, till in 1854 they resulted in bloodshed, and the peace of the province ever since has been more or less disturbed by Native affrays. Referring to a temporary cessation of these hostilities in 1859, a recent intelligent writer on New Zealand observes, "The feud, however, is not settled; the cessation of hostilities is more an armistice than a peace, and its permanence will only be secured by the Government purchasing the disputed lands" ("Story of New Zealand," by A. S. Thompson, M.D., Vol. ii., p. 259). His Excellency's Ministers entirely concur in this opinion.

A few minor topics touched on in the protest ought not to pass wholly unnoticed. His Lordship extols the loyalty of King and his people. Of the truth and fairness of the reflection upon the settlers let any one judge who has perused the reports of Mr. Spain, and the correspondence of Sir George Grey on the Taranaki land question. As to King's alleged services against Rangihaeata, their page 149 value is very questionable. It is certain that King absolutely refused to join the Ngatiawa of Port Nicholson in the pursuit of the rebel chief, and that in consequence the latter made good his retreat to his stronghold at Poroutawhao. King's attitude throughout the war was little, if at all, more favourable to the British Government than that of an armed neutral. More perhaps could not be expected of him, but it is absurd to extol him as an faithful and efficient ally. His fidelity was doubtful; his efficiency was altogether denied by those who were serving with him. (See the report, passim, of Mr. Servantes and Major Durie in the Parliamentary Blue Book, in continuation of papers presented 26th August, 1846.) King's position at Waitara has been one of pure hostility to the interests of the settlement, of which he has been occupying a part of the destined site—a hostility unattended by the least advantage to himself or his followers, and which has, on the contrary, plunged the district into a series of disastrous feuds. Upon the vast tract of fertile land which he and his party have been the principal means of withholding from the industry of the European settlers the thistles now stand, in many places so thick that a horseman cannot pass, and the seed may be seen blowing along the ground like snow. Allowance may and ought to be made for a savage who clings to his savage life, and to the beautiful wilderness which he cannot use, but has always been free to roam over. But it is worse that injudicious to hold him up as a benefactor, entitled to the grateful feelings of the English settlers. Such unjustifiable exaggerations evidently tend to excite sentiments the very opposite to those which they purport to inculcate.

More important than these trifling indications of his Lordship's constant bias is the declaration that the colony was avowedly formed for the protection of the Maoris, and that this remains of right the primary object of the British policy in these Islands, to which every other is to be sacrificed. It is believed that there is no sort of authority for such a doctrine, successive Secretaries of State, beginning with the Marquis of Normanby, having declared that the equal benefit of both races was the motive for assuming the sovereignty of the Islands. The true state of the case is clearly expressed by Lord Stanley in his despatch to Governor Sir George Grey, dated the 13th June, 1845. "You are aware," his Lordship writes, "that the colonization of New Zealand was not the spontaneous act of the Queen's Government, but was forced on them as the only means of averting the evils with which the unauthorized settlement of Her Majesty's subjects there appeared to threaten the inhabitants, whether European or aboriginal."

But, holding as they do that the preservation and civilization of the Native race, and the promotion of the settlement of the country by Europeans, are objects of policy not merely compatible, but, in the present circumstances of the colony, inseparable the one from the other, His Excellency's Responsible Ministers consider that the controversy opened by these expressions of his Lordship the Bishop is idle and mischievous.

If his Lordship desired to arouse and stimulate the hatred of race, he could not do so more effectually than by such assertions as are scattered with a profuse hand over the short document under consideration. Once let it be understood that the interest of the settlers is to be subordinate to that of the Natives, and a war of races is inevitable. Earl Grey has rightly said that such a struggle once commenced could hardly close, except by our abandonment of the Islands in disgrace or the extirpation of the aboriginal inhabitants. (Earl Grey's "Colonial Policy," Vol. ii., p. 137.)

The insinuation that the war is one of aggrandizement—that it is undertaken for the sake of acquiring territory—is quite untrue. The proceedings which have led to it were under the immediate superintendence and control of the Governor. His Excellency will confirm the statement that those proceedings were not, at any stage, urged upon him, or so much as suggested to him, by the Responsible Ministers, nor was there, previous to the commencement of the war, any manifestation of public feeling on the subject of the dispute between the Governor and William King. It would be absurd to suppose that His Excellency could be actuated by the motive imputed. And it must appear almost equally improbable to any person who calmly reflects on the matter, that the colonists or their representatives should willingly incur the risks, and submit to the sacrifices, of a Maori war, for the sake of a few hundreds of acres in the least important province of New Zealand. Other motives must be sought to explain the general support which His Excellency has received in the colony upon the present occasion.

There is in New Zealand a small and happily decreasing party who, to benefit as they suppose the Native race, would willingly check what is invidiously styled "the aggrandizement of the English provinces." Their apprehensions for the future (which seem in a great measure to blind them to the danger and even impossibility of a continuance of the present relations of the races) are aggravated by the low conception they have formed of the general motives and objects of their fellow-countrymen in New Zealand. Moving, as these gentlemen for the most part do, in a narrow social circle, and mixing little with the settlers, having moreover their feelings and energies concentrated upon one great and in itself most noble object, it is not wonderful that they should do but scant justice to the motives of the colonists. On behalf of their fellow-settlers. His Excellency's Ministers would represent to Her Majesty's Imperial Government that the grand desire of the British colonists in respect to the Natives is not the appropriation of the Native territory, still less the destruction of the race, but it is to see the Maori people rendered amenable in their dealings with the settlers to British law. The restless instinct of progress, the, love of wealth, the hatred of race, are all no doubt motives at work in the country; and against the indulgence or the excess of these strong passions the Government is bound to be upon its guard. But stronger and more universal and more inevitable than all these feelings is the desire which animates the public mind that all the inhabitants of New Zealand should be subjected in their mutual dealings to the control of one equal law. This is a natural and praiseworthy desire, and if duly regulated must be conducive to the good as much of the Natives as of the colonists.

The addresses which have been presented to the Governor since the commencement of the war justify these representations. Under accumulated provocations—the contemptuous defiance of Her Majesty's authority, the ruin of one British settlement, the most serious injury to several others, the interruption of the advancing prosperity of all,—under the natural indignation caused by the cold-blooded murders perpetrated upon unarmed men and young boys,—the settlers of New Zealand still page 150restrain their passions, and confine themselves to the prayer that the majesty of the law may be vindicated and the authority of the Queen upheld.

Perhaps only those who have lived as settlers surrounded by a Maori population are able to realize the intensity which the desire expressed by these addresses can attain amongst Englishmen so situated. In his intercourse with the Natives the colonist is exposed to daily provocations. His cattle, for example, stray from his paddock: he follows them to a neighbouring pa, and is compelled to redeem them by an exorbitant payment. In the course of the altercation a musket is perhaps pointed at him, or a tomahawk flourished over his head. On the other hand, should he try the experiment of driving Native cattle to the public pound for trespass on his cultivations, a strong party of Maoris, with loaded muskets, breaks down the pound and rescues them. He has to maintain party fences without contribution from his Maori neighbours; herds of Native pigs break through to his crops; the dogs of the pa worry his sheep. To save his own farm he has to pay for the extirpation of thistles on the neighbouring Native land, hundred of thousands of acres of which lie waste and worse than useless around his homestead. Redress in the Courts of law is not to be obtained, because it would be dangerous to the peace of the country to enforce the judgment. On the other hand, Natives, freely avail themselves of their legal remedies against Europeans. At the present time a trader lies in the Auckland gaol under arrest for debt, at the suit of a Native chief. About a year ago this same European had a judgment for a large amount against the Native who has now imprisoned him, which he was of course unable to enforce by execution.

Men of great judgment, tact, and courage, and of a commanding type of character, may get on well with their Maori neighbours; but even these sometimes fail, and such men are the exceptions in every country. Missionaries, again, may take refuge in mere passiveness; their calling permits it without reproach. A Missionary is wronged, and he submits, and there is an end of it. But the settler cannot do the like without loss of self-respect, and to him the petty provocations and injuries to which he is subject are rendered galling by the sense that he is compelled to bow to the will of an armed, lawless, and insolent mob.

There is a reverse to the picture which has been drawn of the wrongs of the settlers. Much might be said of frauds by European traders, of wanton insults offered to Natives by the lower class of settlers, and of other inconveniences which have followed from the settlement of the country. Nor would it be wise to expect that an uncivilized people should at once conform to the usages of strangers who have come to plant themselves amongst them. But, freely admitting the whole of what may be said on these points, it is still true that the strong desire of the colonists for the thorough establishment of British authority is natural and laudable, and that its fulfilment, if attained by no violation of the laws of humanity and justice, will conduce to the benefit of both Europeans and Natives.

It is because the decisive action of His Excellency the Governor appears to the colonists adapted ultimately to secure this great and happy result that they are not merely reconciled to the heavy present sacrifices it entails upon them, but prepared to give to the Imperial Government their most active support in suppressing the existing rebellion. His Excellency's Responsible Ministers concur in this general opinion and determination, and now express their expectation that His Excellency's policy, though beset with unavoidable and accumulated difficulty, will be recognized and supported as neither unwise nor unjust, nor likely to prove disastrous to either race, but that it will be seen to have been, on the contrary, dictated by a due regard for the welfare of New Zealand and the dignity of the Crown, and, of necessity, to have been in strict accordance with those just principles which have hitherto regulated the conduct of the, British Government in these Islands.

C. W. Richmond.