An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand
III. Status of the Chiefs
III. Status of the Chiefs.
- 20. There can hardly be a doubt that, prior to the establishment of British sovereignty, the power of a chief in his tribe depended as much on his courage and skill in war and his ability in council as on rank by birth or on territorial possessions. It often happened that the most powerful chief was a small landholder. Their law was the right of the strong arm. Mr. busby, writing in 1837 to the Governor of New South Wales, tells us what kind of rank the chiefs had in those days: "To those unacquainted with the status of a Native chief it may appear improbable that he would give up his own proper rank and authority. But, in truth, the New Zealand chief has neither rank nor authority but what every person above the condition of a slave, and indeed the most of them, may despise or resist with impunity."
- 21. But the kind of authority which the chiefs exercised in reference to land may be gathered from the following extracts from the authorities whom I have already quoted: Sir William Martin said in 1846: "There is no paramount or controlling power, either in the tribe or in the sub-tribe, to restrain or direct the exercise of the right of appropriation [of land]. Each family or freeman may use and appropriate without leave of any." The Board of 1856 said: "The chiefs exercise an influence in the disposal of land, but have only an individual claim, like the Test of the people, to particular portions." Archdeacon Hadfield, in 1845, said: "The chief of the tribe, since he has no absolute right over the territory of the various hapus, nor over the lands of individual freemen of his own hapu, cannot sell any lands but his own, or those belonging to the tribe which are undoubtedly waste lands."page 32
- 22. I take the preceding opinions because they were given years ago, and have nothing to do with the present state of things. Since the insurrection which has unhappily broken out at Taranaki a great effort has been made by many persons to claim for all the chiefs, and in all circumstances, a paramount authority in the sale of land; such a power, in short, as Mr. Fortescue describes—"one distinct from the right of property, to assent to or forbid the sale of any land belonging to the tribe." Various names have been given to this right. It is called by the Bishop of New Zealand and some of his clergy a "seignorial right," by others a "manorial right," by others a "feudal right." I wish to show your Grace that the universal exercise of any right of the sort is by no means admitted or even understood by persons extremely well qualified to form an opinion.
- 23. Mr. Busby says: "I have read much of 'manorial' and 'seignorial right,' of 'tribal right,' and even of 'feudal-right,' in relation to the Maori tenure of land. Persons use these expressions with ideas more or less distinct attached to them, taking it for granted that corresponding ideas exist in the minds of the Maoris. I question whether many of the Maoris are better informed on such points now than they were at the time of the Treaty of Waitangi; but it is very certain that at that time no Maori entertained the idea of a right existing in one party which implied an obligation upon all other parties to respect it. No one conceived the idea of authority carrying with it the corresponding obligation of obedience. Such rights and obligations are the creation of law, and cannot subsist without it. The Maori had no law but the law of the strongest….. There are ideas attached to the possession of land which may well be called instinctive; and great injustice may be done to individuals who hold such a possession, if they are prevented from selling it by a supposition that what we call a superior right exists in some other person, that right being nothing more in the minds of the Maoris than the exercise of an arbitrary power by those who have strength and arrogance enough to assume it."
- 24. The Rev. Mr. Hamlin says: "I have not been able to discover that any such thing as manorial right, distinct from ownership in a greater or less degree, has been lodged in the chief of a district, in the chief of a tribe, in the chief of a hapu, or in any other person of the aborigines. And if there is such a thing as mana o te whenua (mana of the land) it is a certain invisible, indescribable something to which the European may attach a meaning wholly at variance with that which a Native may affix to it. Manorial rights, as Englishmen understand them, are foreign to the Natives, and if they have any such ideas they must have acquired them from Europeans."
- 25. Archdeacon Hadfield says: "The notes I have now read imply that the chiefs have power over some portion of the land. Fifteen years ago I set it down as a questionable right or power: I view it in the same light now. I limit such right of chiefs to deal with lands obtained by conquest only, and do not consider that it extends to any land which has become vested in the tribe by long possession."
- 26. Mr. Buddle says: "It is by no means clear that any such custom as 'manorial right' ever obtained among the Native tribes; was ever claimed by the chiefs or ceded by the people originally. A man took possession of territory by the strength of his arm, and rested his claim on his conquests. 'By this,' he would say, stretching out his arm, I obtained it.' …. Manorial rights are imaginary rights when claimed for New Zealand chiefs."
- 27. And I would request your Grace's attention to the following further extracts on the meaning of the term mana, which has become a household word since the insurrection. "Mana of the chiefs. This word means authority, power, influence. It was originally applied to persons and their words or acts, not to land. The word has of late been used in reference to land, and now we hear of te mana o te whenua (the mana of the land). What distinct idea is attached to it, is difficult to say. The disputed land at the Waitara is claimed by the Maori-King party because the King's mana has reached it: Kua tae te mana o to matou Kingi ki reira (The mana of our King has gone there); and wherever this mana has gone the land is held inalienable without the Kiug's consent. Kia man te mana o te whenua (Hold fast the mana of the land) is another expression now in frequent use. What does it mean? This is altogether a new application of the term: perhaps it has been adopted in consequence of the Queen's sovereignty over the Islands having been translated as the Queen's mana. But it certainly did not originally mean that which is now claimed for it—viz., a chief's 'manorial right.' This use of the word was not heard until the Maori-King movement originated it." "The term mana in reference to land I have occasionally heard, and have asked the question, 'He aha te mana o te whenua?' (What is mana of the land?), and have received this answer: 'Aua hoki; ma te pakeha' (I don't know; it is the white man). The answer implies that the term as applied to land had its origin in a mistaken conception of the meaning of Native words by Europeans. The term as applied to land is scarcely heard of in some districts."
- 28. But whatever may be the precise idea which is now entertained under the designation of "seignorial right," "manorial right," or "feudal right," it is an extraordinary thing that among all the authorities I have quoted, so far as I have seen their opinions made public, it was never mentioned before this war. Surely, in the way it is now claimed by the apologists of Wiremu Kingi, it is in the nature of a sovereign right; and Sir William Martin wrote in 1846: "Every right which exists, whether in one person or in more, is truly a right of property; and there does not in this state of things exist anything which can be correctly likened to a right of sovereignty, as understood amongst us."
- 29. The question really is, Was such a right guaranteed to the chiefs of New Zealand by the Treaty of Waitangi? Mr. Busby, who negotiated the Treaty, absolutely denies it. I do not find that Governor Hobson, who made the Treaty, anywhere admitted it. And the interpretation originally given to the Treaty is clearly shown in the following evidence of Archdeacon Maunsell before the recent Select Committee of the House of Representatives on Waikato Affairs: "You recollect the time when the Treaty of Waitangi was entered into between Governor Hobson and the northern chiefs: did you assist the Government in any way to obtain the consent of the Waikato chiefs to that Treaty?—I did: I induced the Waikato people to consent to it.—Were you aware as to what was their understanding at the time of their cession of sovereignty to the Queen, as contained in the page 33Treaty?—That they retained the rights over their lands, but that the Queen had power to make laws. —Do you know what are the views now entertained by the Native-King party with reference to the meaning of that Treaty?—I do not.—Are you aware whether any of the chiefs who agreed to that Treaty are now connected with the King movement?—I am not.—Do you recollect a sort of State visit made by the old King (Potatau) to Lower Waikato some time in the beginning of the present year?—I do.—Were you present at an assembly held at Waiuku on that occasion?—I was.—Did you deliver an address to that assembly in which you expressed your interpretation of the meaning of the terms of the Treaty which relate to their lands; and, if so, will you state to the Committee what you then said to the Natives on that subject?—I said that they ought to allow each man to do what he liked with his own land, that their right to their land was secured to them by the Treaty of Waitangi, and that no king ever interferes with his people when they wish to sell land."