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

[No. 47.]

No. 47.

Copy of a Despatch from Governor Sir G. F. Bowen, G.C.M.G., to the Right Hon. Earl Granville, K.G.

Wellington.Respecting Trial of the Hauhau Prisoners. Government House, Auckland, N.Z., 28th October, 1869.

My Lord,

In continuation of my Despatch No. 113, of the 4th September ultimo, I have the honour to report that the trials of the Hauhau prisoners from the bands of Te Kooti and Titokowaru have been completed during the past month, before the Supreme Court of this colony.

2.Your Lordship is already in possession of the opinion of the Attorney-General of New Zealand as to the political and legal status of these men, and is aware that he declared that they should be tried for levying war against the Queen; also that the learned and able Judge who presided at these trials (Mr. Justice Johnston), in his charge to the Grand Jury, practically indorsed the views of the Agent- General. I now further transmit a printed copy (corrected by himself) of the Judge's charge to the petty jury in the high-treason cases.
3.Out of the total number of nearly one hundred prisoners, more than twenty of the least criminal were discharged, no evidence against them having been tendered on the part of the Crown; while the remaining seventy pleaded guilty, or have been convicted after long and patient trials before the Supreme Court. As I have already informed your Lordship, the Colonial Ministers and I, have been agreed from the beginning that, under the peculiar circumstances of this country no capital sentence should be carried out against Natives convicted only of having carried arms against the Queen. Accordingly, all the sentences, with three exceptions,, will be certainly commuted, according to the degree of guilt of each individual, to various terms of imprisonment. The three exceptions referred to are those of' Hauhaus convicted of treason and rebellion, and found in addition to have been concerned in cruel murders of unarmed men (Europeans or friendly Natives), and of women and children; or in other heinous atrocities, generally abhorred by the Maoris equally with the colonists. In these three cases, or at all events in one or two of the worst of them, the law will be allowed to take its course. However, the final decision on the report of the presiding Judge cannot (in pursuance of the regula tions prescribed in the Governor's Commission and Instructions) be pronounced until after the formal meeting of the Executive Council, which will be held next week. It cannot, consequently, be communicated to your Lordship by this month's mail, which leaves Auckland this day.
4.It need scarcely be said that in any capital executions the aggravations peculiar to sentences for treason will be remitted. Mr. Justice Johnston is of opinion that, in the present condition of the Statute Book, he was bound to pass sentence in the following terms: "You shall be drawn on a hurdle to the place of execution, and be there hanged by the neck till you are dead; and afterwards your head shall be severed from your body; and your body shall be divided into four quarters, which may afterwards be disposed of according to law." The Judge, with my sanction, stated on each occasion that this sentence would not be carried out in its terms. With regard to this point, I request your Lordship's attention to the following paragraph, which has appeared in one of the leading journals of New Zealand {Wellington Independent, 2nd October, 1879): "It is a matter of regret to almost every member of the community that the necessity of pronouncing sentence after the old form established by Euglish law had not been removed by legislative enactment. Our civilization revolts from the parallel which may be drawn between the horrible mutilations of their victims by the Maoris, which we so emphatically denounce, and the sentence of barbarous mutilation after death to which the law deliberately consigns those condemned for the crime of high treason. This was evidently felt by the Judge whose painful duty it was to pronounce the sentence, and he took care to explain to the condemned that such part of the sentence would not be carried out. Nevertheless, soften ifc as we may, it gives a handle for recrimination which we would fain avoid."
5.Mr. Justice Johnston has written to me that, with the exception of the unfortunate circumstance alluded to above, the general result of these trials has been, in his opinion, "most satisfactory;" and that "they will prove of great service to the colony, as showing the true intentions and objects of the rebels, and silencing the calumniators of the Government and of the settlers in respect of their treatment of the Hauhaus…. The real nature of the West Coast rebellion has been made manifest—Te Kooti's professed object clearly having been to exterminate the adherents to the Government of both races, and to enjoy the plunder."* Mr. Justice Johnston further writes that the prosecutions were very well conducted by the Attorney-General on behalf of the Crown; that the

* Compare the emphatic language on this point used by Mr. Justice Johnston in his charge, transmitted herewith (see the Enclosure).

page 199prisonors were ably defended by the counsel procured for them at the expense of the Colonial Government; and that the general demeanour of the jurors left nothing to desire.
6.I will transmit by the next mail full official documents, and details respecting these important trials, and a report of the final decision of myself and my Ministers on the fate of the three most guilty criminals. Meanwhile, I beg leave to submit that the above-mentioned facts and opinions, as stated by the experienced Judge who presided, would of fhemselv es be sufficient to justify the objections raised by me and others to the proposals made a short time ago for superseding the Supreme Court of the colony by the establishment of Courts-martial and other special and extraordinary tribunals for the trial of Maori prisoners. To omit many other obvious considerations, we felt, in the terms used in a previous despatch,* that "there was no reason to suppose that the Supreme Court and the civil juries are unable or unwilling to administer with a severity sufficiently deterrent impartial justice to both races of the inhabitants of this country."

I have, &c.,

G. F. Bowen.

The Eight Hon. Earl Granville, K. G.

* Governor of New Zealand to Secretary of State, No. 113, of 4th September, 1869.

Mr. Justice Johnston's Charge on the High Treason Cases.

Gentlemen of the Juby,—We have now come to the last stage of this most interesting and important trial—important in many ways which have been suggested to you by the learned counsel on both sides, and which will also suggest themselves to your own minds. I think it was quite unnecessary for either of the learned counsel to advert for a moment to the possible or probable results of the case, in order to induce you to give it your careful and dispassionate consideration; for if you feel, as I can scarcely doubt you do, the sense of awful responsibility which I feel towards the community on this occasion, you require no urging to be calm, careful, patient, and dispassionate. In your treatment of the case, what you have to think of is not what your neighbours will say, nor what public opinion may say to-morrow or the next day, or by-and-by, but what will weigh most with you is, how you shall answer hereafter, long after this trial is concluded, to your conscience and to your God.

Fortunately, the circumstances of our Mother-country, and of the vast majority of her colonies, have been such for many years that trials for high treason have been few and far between. Thank God for it. Nay, it has been so much so that we almost lose sight of the importance of the law on the subject, and of the punishment of crimes committed against that law. The prisoners at the bar are charged on this occasion under a statute no less than five hundred years old,—a law passed, not in the interests of authority and despotism, but in the interests of liberty, that men might know clearly and distinctly what treason was. Although the prisoners at the bar may not have had the same opportunities which many British subjects have had, by education and instruction, of knowing what the law is under which they live, I am bound to tell you that you must treat those men exactly on the same footing as any other British subjects amenable to the same laws, and that you ought to take the difference of race and situation no further into consideration than to ascertain how far it ought to influence you as to the inferences of facts which you should draw from their conduct and language. I should be wanting to myself and to the colony were I not to offer a just tribute to the learned counsel who have conducted this anxious inquiry. We have seen the principal law officer of the Crown, the Attorney- General, conducting the case on behalf of the Government; and a gentleman of long standing at the English bar, and of evident experience and skill, has been enabled, through the liberality and feeling of justice of the Government, to give the prisoners the benefit of his advice and watchful attention throughout the inquiry. I congratulate the colony on this being the case, because there is nothing which I have felt more strongly since I came into the colony, and which I feel more strongly day by day, than that the real welfare of this colony for the future, and the satisfactory connection between the aboriginal inhabitants and the Europeaus, must in a great measure depend upon the temper and manner in which justice is administered in the tribunals of the country. While I pay this well-merited tribute to the counsel both for the prosecution and for the defence, I at the same time cannot believe that either kind of prejudice suggested by them will be likely to affect your minds in the least when you apply yourselves to the consideration of the matters before you. It is 'my special and peculiar duty, in the first place, to state to you what the law is as it affects the indictment and the circumstances proved; and, in the second place, to endeavour to assist you in applying that law to the facts. But with regard to the proper conclusion to be inferred, as matter of fact, from these facts, you are the responsible tribunal, not I; and, although it is competent for me to express my opinion upon the facts, and the inferences from facts, I shall probably, on this occasion as on most others, very rarely do so. If I indicate to you any kind of opinion of my own as to the inferences to be drawn from facts, correct me in your better judgment, if you should think I am mistaken.

The prisoners at the bar are accused by this indictment, on two different counts, with levying war against the Queen, under the statute 25 Edward III., passed in the year 1354, and called the Statute of Treasons. I shall confine my remarks to that portion of the statute which refers to the case we have to deal with,—the levying war against the Sovereign. Now, gentlemen, you will take it from me as settled law that any use of violence by a number of persons for the purpose of obtaining the redress of public grievances, or for the purpose of overthrowing the authority of the Queen, or of the constituted Government of the country of which she is the supreme head, amounts to the crime of high treason. Allegiance, which is the duty that underlies the definition of the crime, is the bond between the Sovereign—whether an individual, as in a monarchy, or the State, in a republic—and the people of the country. The duty on the part of the sovereign power in the State is to protect the people, their lives, liberties, and property; and the duty on the part of the people is to obey the law as declared and administered by the tribunals and Government of the State. In New Zealand—in all its islands— whatever the source may be from which the authority has arisen, I must lay it down to you as law that Her Majesty Queen Victoria is Sovereign, and that the Government established in New Zealand by page 200virtue of the Acts of the Legislature of England is the Government of the Queen of England for this her colony. I further state to you that every person, not being merely a visitor from other countries, but who remains in these Islands, is, while residing under the protection of our laws, a subject to the Crown of Great Britain; and that the aboriginal or half-caste inhabitants, whether born before or after the settlement of this colony, are, by law, British subjects, and have the same rights and duties as natural-born subjects of the Crown. Therefore, if the prosecution have made out to your satisfaction that the prisoners at the bar were engaged with others in endeavouring, not to right some private grievance, or to exact some retaliation against private enemies of their own, or against tribal enemies, but to deny and resist the authority and withdraw themselves from subjection to the authority of the Government of Her Majesty in the colony; they are guilty of high treason. In allusion to one matter to which attention has very properly been called by the learned counsel for the defence, I tell you that you need not embarrass yourselves as jurymen—-who have only to pronounce, as a verdict, Guilty or Not guilty—with any question as to the relative degree of guilt of these prisoners and the persons with whom they have acted in concert. I shall tell you presently the law in respect to persons acting in concert for a common purpose; but, referring as I have done to the question of the results of this inquiry, let me tell you that you have no right—and it must and would be unwise of you—to contemplate what may be done afterwards should your verdict be one condemning the accused. You must not consider whether the sentence of the law will be modified, or how the prerogative of the Crown may be exercised by those who have the power to exercise it. You must come to your conclusion regardless of the consideration whether, from what may be called the moral point of view, the prisoners before you are more or less guilty than those with whom they have been acting. I put it succinctly to you that it matters little to you whether it is Te Kooti or the humblest of these men that you have before you, if it be established that the acts of any may be taken to be the acts of all. And now I must advert to the question of force or compulsion, which was very properly urged by the learned counsel for the defence. This is one of the most prominent features of the defence, and requires that you should apply your minds vigilantly to the consideration of it, in order to see whether these parties, or some one of them, may not come within the principle on which compulsion is admitted as excusing co-operation with rebels. On this subject I will read to you a passage from the work of Mr. Justice (Sir Michael) Forster on the subject, which is one of the highest authorities on the head of law. The doctrine had originally been laid down that "the only force that doth excuse is a force upon the person, and present fear of death, and this force and fear must continue all the time the party remains with the rebels." But Forster afterwards says it will be enough if "upon the whole the accused may be presumed to have continued among the rebels against his will, though not constantly under an actual force or fear of immediate death."

Now, it is for you to say, when you come to review the evidence, whether that rule can be applied to the conduct of any one of the three prisoners. There is, no doubt, a considerable amount of evidence to show that Te Kooti is.a man of strong will and iron rule, who does not threaten without striking; and from the evidence of some of the women you will probably infer that there were persons iu his camp—-females among them—who were almost paralysed by the fear of his threats, and who,—when you consider the specific language about prisoners, and his threats of how his god would deal with them,— may have been put into an irresponsible position. You will, however, have to test whether, when you review the whole evidence, that can be said with any show of justice with regard to any one of the three prisoners. If, as it is suggested, here is Hetariki at one time alone with the women, there is Rewi at another time alone, sick at Hungaroa, far away from Te Kooti, and again there is Matene going backwards and forwards as Kokiris, and taking an active and prominent part in attacks on outgoing scouts of the colonial forces—if all this be proved to your satisfaction, you are to say whether these men were acting voluntarily or were under compulsion. I must point out to you that, according to my judgment, you must, in asking yourselves whether there was force and compulsion or not, remember that if these men were originally forced, by fear of death and by the fear of Te Kooti's threats, to obey his orders while his power was impending over them, yet they afterwards got, as I may say, into the spirit of the thing, and voluntarily went and fought,—there was not such a present fear of death and danger to' their persons from Te Kooti as would justify them under the rule which I have pointed out. That is to say, supposing it to be true that their first joining was under compulsion—that the first step in this long tragedy was under compulsion—yet if afterwards they resigned themselves to the' situation, and did not-escape when they could have escaped, but voluntarily joined in acts of rebellion, the doctrine of compulsion cannot be held to apply. In the first place, with regard to Hetariki, you find his voice—the voice remarkable above all others—recognized as the voice crying out, "Kekaka, kekaka," "Be strong, be strong," in the midst of the fight. Is that an indication that at that time he was there against his will,—that he was there doing something that nothing but the fear of death would compel him to do? Rewi is not certainly shown to have taken any leading part in the matter; but, with regard to Matene, the attack on the escort would seem to be almost conclusive. With regard to escaping, it has been shown that Ohapata escaped because he wished to do so, and it has been shown also that several women escaped. It is for you to consider whether, from the beginning tp the end of this disastrous tale, you have any indication of any one of these men attempting to escape from the influence of the force of which it is said they were afraid.

Now, I lay it down to you as law that, without speculating about the animus and the intention of particular parties, if a body of men use violence towards the Queen's troops, whether Imperial or Colonial, or towards any persons in authority under the Crown, or assisting persons in authority under the Crown, for the purpose of shaking off the yoke of Government, it is as much levying war against the Queen as it would be to go and attack Her Majesty in Windsor Castle and slay her guards. Then, as it may be necessary to import the doctrine of specific intention, you will have to consider whether there is ample evidence of the intention of the parties, if not on their first arrival, at all events during many of the scenes that occurred after their arrival from the Chatham Islands. What was their intention ? Te Kooti's intention at first, as he said, was to go to Taupo and overthrow the King. It is not suggested for a moment that he was going to make war on his own account. There is no indi-page 201cation, nor is there any pretence for saying, that what was done by Te Kooti was either in consequence of tribal quarrels or for the purpose of repossessing himself of land of which he or his party had been dispossessed by the Government. They belonged to different tribes, few of them had dwelt there, and there is no evidence to show that any laud was taken from them by the Government; neither is there any evidence to show that the intention was to avenge themselves for a wrong they had suffered. Furthermore, there is no evidence to show that it was upon any plea of illegal detention or bad treatment at the Chatham Islands that they sought to take revenge. Endeavours were very properly made by the learned counsel for the defence to show that all their subsequent attempts were in consequence of the treatment they had received at the Chatham Islands; but you will see that those endeavours failed. No doubt the mere act of escaping from there is such as no one will blame them for, for they only obeyed the first law of nature. But they brought guns from there which were not their property, and they used those guns afterwards and took other guns. The case does not, however, stop there, for we have positive evidence as to the intention of Te Kooti, from what he repeatedly said in the hearing of persons at times antecedent to that at which their men voluntarily took a part in his acts. Gentlemen, if there were no other purpose that this trial could serve than this, it is well that the colony, the Mother-country, the world, should know that the deliberately avowed and repeated intention of Te Kooti was, as it has been expressed,—and I shall use no language of rhetoric to characterize the expression—to annihilate the momo kino, the "bad breed." On pressing the matter, and questioning the witnesses as to what Te Kooti meant by the "bad breed," and what was understood by it by his followers, it became a clear matter of fact that the "bad breed" did not mean this man or that; it did not mean the pakeha, the foreigner, merely, but the Government people of both races. Throughout the whole disastrous events, both the language and the actions of this party showed that their attacks were levelled against those who supported the Government. What Government that was there can be no doubt. It was the Government of Her Majesty in the colony. Therefore, I say, this is so pregnant and important a fact that, if nothing else resulted from this trial, your long detention from your homes, the inconvenience you have been put to, and which you have borne so patiently and intelligently, would be but little in your estimation compared with establishing the fact before the world that such are the intention and meaning of those persons, who, I am sorry to say, are still, as far as we know, in more or less active insurrection against the Government. The importance of the trial in this respect, of course, so-far from tending to prejudice the prisoners at the bar, would have rather a contrary effect, for I say, notwithstanding the perhaps justifiable observation of the Attorney-General, that to my mind what becomes of these three men is comparatively insignificant to the great fact which this trial will probably establish—that, as far as regards the circumstances of that portion of the colony with which this case is connected, the Government has not been acting otherwise towards the hostile Natives than for the maintenance of the peace of the country, and that To Kooti and his followers have not set up the pretence of a grievance done to them.

Much has been said during the trial as to the relevancy of particular facts towards establishing the general conclusion charged in the indictment; but, having paid due attention to the suggestions of the learned counsel for the defence, I have not seen my way to the disallowing any part of the evidence as to events, from the landing at Whareongaonga to the taking of Ngatapa, because, to the best of my judgment, all the acts appeared to be done in pursuance of one common design, perhaps originally instituted by Te Kooti, but carried out by him and his followers, of whom were two of the prisoners from the first, and the third joined them afterwards, all three, according to the evidence, taking an active part at some time in the conspiracy, and being well informed as to their leader's objects and intentions. The line of the case for the prosecution is this: that, having arrived from the Chatham Islands, where they possessed themselves of the ship and overpowered the guard, and brought away the guns of the guard with them, they went through a series of engagements with what I call the Queen's troops— the troops of the Government of the colony; that, living together in camps and pas, they had daily instructions, and that they were from time to time ordered by him to go by night, as detached parties called "kokiris," for the purpose of doing what? On one occasion to fetch ammunition; on three occasions, at least, if you believe the evidence, for what purpose? Not meeting the troops with whom they were fighting according to the custom of war, but going to detached places where settlers were, and Maoris friendly to the Government, for the express purpose of assassinating and destroying men, women, and children, who might be friendly to the Government. Whether the prisoners themselves took part in this particular action, or were one of this particular kokiri or that particular kokiri, seems to me to be a matter of little importance, if they voluntarily continued under Te Kooti, taking part in his proceedings; after the first occasion on which an order of this kind was given. Whatever may be the degrees of moral guilt, clearly in point of law they must be as guilty as if they themselves drew the murderous sword, or fired the destroying gun. [His Honor here described the relative positions of the various places at which the several events took place, and read the evidence at length, to the jury.]

Gentlemen, the case has occupied much of your time. If any of us, fallible and weak as we are, have in the course of the investigation allowed our minds to be either clouded by prejudice, or excited, I need not urge upon you that, now that solemn moment is coming when you are to determine, so help your God, Are these men guilty of the crime laid to their charge ? you will allow no passion, feeling, or prejudice, or suggestion from any source but one, namely, the evidence, to weigh either for or against the prisoners at the bar. As I said before, it may be that the moving spirits who have designed this great evil have not yet reached the hand of justice, but that, I again point out to you, can be no justification for making these men irresponsible for the acts that were committed by the followers of those leading spirits, if done in common concert with them. With regard to the question of levying war, I repeat that attacking the Queen's troops—and these men were the Queen's troops for this purpose—is of itself levying war; resisting the Queen's troops when they are supporting the Queen's authority, or endeavouring to take a place occupied by the Queen's troops, is of itself levying war against the Queen. Can you have any doubt the principal if not the only object existing in the mind of Te Kooti, and known by all his party to be existing in his mind, was to throw off the yoke, as they page 202might have termed it, of the British Government—to rid themselves of that which they might consider [gap — reason: damage] between them and the enjoyment of the whole country ? No possible suggestion can [gap — reason: damage] be made, with regard to this portion of the Native race, at all events, that their object was to get [gap — reason: damage] and of which they complained that they had been wrongfully dispossessed. No suggestion can [gap — reason: damage] aftef be made that their conduct was even retaliation for some oppression or injury which they even pretended to have received at the hands of the British Government. No suggestion can be made that the insurrection in this part of the colony was the result of misconduct, ill-feeling, or mismanagement on the part of the European settlers or of the Government. With matters which are called political we have nothing to do here." It may be that some persons may think ihat if these prisoners - had been better; guarded these events would not have occurred; but what justification can that be to them for anything further than their escape, which undoubtedly the law of nature suggested to them ? If it were necessary to show this distinctive motive more clearly, does it not appear that the mode by, whieh, they sought to shake off the yolce of British rule was by annihilating the British people? Aye, and that so little was there of anything like a nationalspirit in it, that they were ready to sacrifice persons of their own race, and not only those who, in assisting the Government, might be said in some kind of sense to be traitors to the Native cause, but, harmless women and children of their own blood, merely because they were under the protection of the Government. If, gentlemen, these things or any of them are made out to your satisfaction, you cannot have any reasonable doubt, after the definitionl have given you, that there has been levying war under the statute. But, gentlemen, before I conclude, I must caution, you not to allow any feelings, which may have arisen at the recital of the various events of the sad tale to blind, your judgment. The qtiestiou for you to decide is, Did the prisoners assist willingly or by force to put down the Government of the country, or, throw off subejection to it, not with the idea of getting another political Constitution, but simply for the purpose of overthrowing the Government ? I wish you to understand that the incidental barbarities introduced into the case are; admissible as evidence, because they were committed upon persons, who were, or who were supposed to be, friendly to the Government. And now, gentlemen, the whole case is before you. Its importance cannot be overrated, and I feel very confident that no prejudice will have any effect upon your minds. You will feel you are now going to perform a duly, perhaps one of the most sacred, the most important, the most responsible, that you can have to answer for from your cradle to your grave.